Maintaining Continuous Residence for ILR

Indefinite leave to remain (ILR), also known as settlement, gives an individual the right to live permanently in the UK (subject to limited restrictions), undertake any employment in the UK, set up in business and access public funds, if eligible. A person holding ILR may eventually be eligible to apply for British citizenship.

To apply for ILR, applicants must, along with the other mandatory criteria (such as meeting the qualifying period), meet the continuous residence requirement.

What is the continuous residence requirement?

Applicants in most investment, business, and work-related visa categories must show a specified period of lawful, continuous residence before they become eligible for ILR. This is essentially the lawful, unbroken period of time they must have been employed or otherwise active in the UK economy before they can settle in the UK.

Breaking continuous residence

This blog provides an overview of examples of circumstances which may break continuous residence. If continuous residence is broken, it may affect eligibility to apply for ILR.

Absences from the UK

To meet the continuous residence requirement, applicants must not have spent more than 180 days outside the UK in any 12-month period (during the relevant qualifying period) unless the absences are for permitted reasons. The qualifying period is the amount of time an applicant must have lawfully been in the UK, in the relevant visa category, before they are eligible to apply for ILR. For more information on the qualifying period, check out our previous blog here.

If the qualifying period includes permission granted before 11 January 2018, any absences during that leave are considered in consecutive 12-month periods ending on the date of application. For permission granted on or after 11 January 2018, absences are considered on a rolling basis.

Only whole days (24 hours) are counted as an absence.

Scenario:

A is applying for ILR on 10 February 2023. A’s continuous period of residence in the UK is comprised of their initial visa from 01 January 2017 to 27 August 2020. A then extended their visa which was granted until 01 March 2023. Any absences incurred during their initial visa will be considered in consecutive 12-month periods, ending on 31 December each year. Any absences during their second visa will be considered on a rolling basis from the applicant’s date of departure.

The Home Office may exercise its discretion if an applicant can provide evidence that any excessive absences were because of serious or compelling reasons, such as serious illness or natural disaster. If the COVID-19 pandemic precluded an individual from travelling, they may still have a successful ILR application if they can evidence these exceptional circumstances.

Overstaying

Remaining in the UK after permission has expired, also known as “overstaying,” will usually break continuous residence.

There are certain exceptions to this rule. For example, if an application is made within 14 days of the previous leave expiring and there are good reasons why the application could not have been submitted in time. Each case will be judged on its merits.

If an exception applies, continuous residence will not be broken, however, the time spent without permission will not count towards the qualifying period.

Any overstaying due to leave expiring between 24 January 2020 and 31 August 2020 (due to the COVID-19 pandemic) will be wholly disregarded.

Scenario:

C’s permission was due to expire on 07 April 2021. C had intended to submit an extension application prior to their current visa expiry. However, they were admitted to hospital for emergency treatment and was therefore unable to submit the extension application until 12 April 2021. C provided evidence by way of an official letter verifying the dates of admission and discharge, as well as the nature of the treatment obtained. The Home Office was satisfied that there were reasons beyond C’s control which prevented them from submitting an application in time. The application was granted and continuous residence maintained.

Gaps in lawful residence

Where an applicant has a UK visa and leaves the UK to submit a new UK visa application, this may break continuous residence, subject to the below circumstances.

Continuous residence will be maintained if the applicant held valid permission when they left the UK and made a successful application for entry clearance either before their visa expired, or within 14 days of that permission expiring (if exceptional circumstances can be evidenced).

Scenario:

D held a Skilled Worker visa valid until 02 September 2022. D obtained new employment and decided to submit his new Skilled Worker application whilst he was visiting family in his home country. D submitted his new application on 31 August 2022. As the application was submitted prior to D’s visa expiry, continuous residence was maintained.

Deportation and Criminality

Continuous residence is usually broken if an applicant has been detained, subject to a deportation or exclusion order, served with removal directions, or convicted of a criminal offence. 

Need to know more?

For further information on ILR requirements, or if you are concerned about whether you meet the continuous residence requirement for ILR, please contact Senior Associate Louisa Blundell at [email protected] or Trainee Solicitor Amelia Haynes at [email protected].

This blog was published on 9 March 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.