10 Year ILR: Long Residence Rules & Earned Settlement Reform Explained
In Brief
If you want to obtain Indefinite Leave to Remain (ILR), the race is on to apply while the current immigration rules are in force. On any reading, the government's earned settlement proposals will make it harder to qualify for ILR, and you and your family may have to wait longer than you originally anticipated before you can settle in the UK.
In this guide, our UK Immigration Solicitors explain the current 10 year or long residence route and assess how earned settlement reforms may affect your ILR application plans and what you need to consider.
Settling in the UK
Some fortunate people can apply for accelerated settlement after three years of lawful residence in the UK, but most settlement applicants currently qualify after five years of residence. If you think you need to wait 10 years and are worried about whether the government’s earned settlement proposals will extend that timeframe, it's worth speaking to specialist ILR Lawyers in London to check the earliest settlement application date and what you can do now to improve your chances of getting ILR as quickly as possible.
Calculating Your 10 Years in the UK
ILR applicants using the long residence route often assume that as soon as their 10 years are up, they’ll qualify for ILR. It isn't as simple as that.
Get the timing of your long residence ILR application wrong, and you may set back your chances of settlement. That’s why it’s crucial to understand which UK residence types count towards your 10 years and which years and months don’t. This key information means you won’t submit an application that’s bound to be refused because it’s premature or one that’s rejected because you didn't realise just how carefully the Home Office examines immigration status over the 10 years of residence.
The importance of ILR application timing can't be overstated:
- If you submit an application and your timings are out (even if it is only a few days), it could reset the clock on your ILR application
- Delaying applying for ILR when you do meet the current criteria could mean you get caught in earned settlement ILR reforms and changes to ILR residence requirements
What Counts Towards 10 Years of Lawful Residence
To qualify for 10 year ILR, your long residence must be:
- Continuous, and
- Lawful
In a further catch, some time spent lawfully in the UK won't count towards your 10 years, as some lawful visa time doesn’t count towards your residence requirement.
It's usual for the 10 years of lawful residence to be made up of a patchwork of visa categories. Here's a typical visa journey for a long residence ILR applicant:
- Student Visa
- Graduate Visa
- Unmarried Partner Visa, Spouse Visa or Skilled Worker Visa
The immigration rules don’t require you to have spent your 10 years on one visa route, but all your visa periods must have been lawful with no gaps in lawful status or periods of absence that are outside the scope of permitted absences. These are defined in the immigration rules.
If you have switched visas a few times, it's crucial that your Immigration Solicitors check that you didn’t lose your continual lawful residence in the process. Briefly losing that status is easily done if you made your own visa application or used a non-specialist solicitor who didn’t realise the significance of complying with visa deadlines to the success of your future ILR application.
Your recollection of the visa application timings isn't what's important. What counts are the historical Home Office records. Sometimes records can be wrong and should be challenged, but your Immigration Advisor will need evidence to back your claims that your lawful continuity wasn’t lost by a late visa application.
Long Residence ILR and Graduate Visas
You may be eligible to apply for ILR earlier than you think. With a long residence application, you can include time spent in the UK on a Graduate Visa. Many applicants assume you can't include Graduate Visa time because it isn't counted as relevant time when applying for ILR based on five years' residence.
What Time in the UK Does Not Count Towards Your 10 Years of Lawful Residence
Checking your entry date and calculating the 10th anniversary of your entry date isn't sufficient, as some time in the UK doesn’t count.
Time spent on these visas doesn’t count towards your 10 years:
- Visitor Visa
- Short-term Student Visa
- Seasonal Worker Visa
Time spent on immigration bail also doesn’t count towards your 10 year residence requirement.
Even if all your visa time qualifies to count for the 10-year route, you may still fail to qualify for long residence ILR if:
- There were unlawful gaps in between applying for visas, so you lost your continuous lawful residence, or
- You left the UK after a visa refusal and then returned after making a new application, or
- You spent time outside of the UK beyond the permissible amounts, or
- You don’t have lawful residence on the date of your ILR application
Absences From the UK That Reset the 10 Year Residence
Any absences from the UK should not have exceeded 180 days in any rolling 12-month period.
Absence rules can be confusing and lead applicants to apply for long-residence ILR when they don’t qualify due to time spent outside the UK.
Applicants need to be aware that:
- Absences are not calculated using calendar years
- Absence calculations don’t run for 12 months from the date of entry
- Absences aren’t assessed over the 10-year period. Applications aren’t granted based on the argument that the overall absence figures are relatively modest
Your ILR Lawyer needs to carefully review each rolling 12-month period and calculate your absences against the immigration rules. One long absence in an otherwise unremarkable 10 years could break your continuous residence. Detailed knowledge of the rules and guidance is critical because your ILR Solicitor may be able to argue that there are compelling or compassionate circumstances justifying the exercise of Home Office discretion.
The Timing of a Long Residence ILR Application
The timing of a long residence ILR application is critical. Apply too early and your settlement application will be refused. Apply a day late after your visa has expired, and your application will be refused as you must be legally in the UK on the day of your ILR application.
Getting the timing right takes time because whilst you can apply for a 10-year ILR up to 28 days before you meet the long residence criteria, if you apply after your visa has expired, you have missed your window of opportunity.
Ideally, Immigration Solicitors recommend that anyone hoping to settle in the UK takes settlement immigration legal advice when:
- You apply for your first visa so your Visa Lawyer can advise on the quickest settlement route
- You apply to extend your first visa so your Immigration Solicitor can advise on any changes in immigration rules on permitted absences or ILR criteria
- You switch to a different visa so you can get ILR advice on whether time on the new visa will count towards your long residence requirement and what evidence you should keep to help prove you meet the ILR eligibility criteria
- A few months before you meet your 10 year residence point, so your lawyer can check the date you can apply for ILR, explain any potential hurdles and advise on what paperwork and evidence you need to provide to support your settlement application
If you haven’t taken immigration legal advice during your visa journey and you think you are finally reaching your 10 year milestone, it's not too late to get some specialist legal advice on the timing of your application.
Appendix Long Residence and Appendix Continuous Residence
When the Home Office considers a long residence ILR application, it assesses the applicant against the criteria in Appendix Long Residence and Appendix Continuous Residence. The Home Office may refuse the application if:
- Your timings are out
- You haven’t provided enough evidence that your absences from the UK were within permitted limits
- You asked the Home Office to exercise discretion but didn’t provide enough documentation
You may think that your timings are spot on or that it isn't necessary to prove that you fall within the permissible absence criteria. However, Home Office caseworkers won't take things at face value, even though to you, your application or personal circumstances are compelling.
ILR Reform, Earned Settlement and the Long Residence Route
Whatever you have read about earned settlement reform, the reality is that none of us, including ILR Lawyers, really know at this stage how the earned settlement reforms will affect:
- When you can apply to settle
- The general eligibility criteria for ILR
That’s because the proposals are just proposals at this stage. One key area of uncertainty is whether any ILR rule changes will apply retrospectively, affecting visa holders who have carefully followed the current absence thresholds and rules, or whether the earned settlement ILR reform will only apply to those who entered the UK after a specified date, with complex transitional arrangements dependent on date of entry or historical visa status.
Immigration Lawyers warn that earned settlement doesn’t focus on the length of residence (unlike the 10 year long residence ILR route) but instead focuses on:
- Contribution
- Integration in the UK
- Immigration and legal compliance
What does this mean for you? It depends on where you are in your journey toward meeting the 10 year residence requirement. If you are nearing the 10 year continuous lawful residence point, you need to think carefully about the first date you will be eligible to apply, and the dates and evidence required. There has never been a more crucial time to get your ILR application right the first time, because if you submit a sloppy application or don’t provide the necessary documents to prove your case, your application could be refused. Worst case scenario, your 10 year clock could be reset, or, if earned settlement reform is retrospective, you may be required to meet a longer residence requirement and to meet contribution and integration criteria, as well as enhanced compliance criteria.
If you are a few years off meeting your 10-year residence requirement, it's not too early to start looking at the contribution, integration, and compliance markers. For example, if you are self-employed, are all your tax affairs in order or could they be subject to misinterpretation? Do your circumstances, or those of a family member, allow you to take a different route to ILR?
What seems fairly certain is that securing ILR isn't going to get easier, so a consultation with an ILR Solicitor to set you on your best path can be a worthwhile investment in your future, as without ILR, you can't apply for British citizenship.
Reasons for Long Residence Application Refusals
As it is a critical time to get your ILR application right, it's important to understand why the Home Office refuses applications and to avoid common ILR errors.
- Continuous residence
Most people know whether they have lived in the UK for over ten years. That’s a simple calculation. What isn't simple is understanding whether your UK residence was continuous. You may be confident that you have resided in the UK for 10 plus years, but a work secondment or lengthy absence due to a bereavement, the needs of ageing parents, or your own ill health may result in you being outside the absence criteria during one 12-month rolling period.
- The rolling 12 months
On entry to the UK, you may have been warned that absences from the UK will affect your settlement prospects. It is easy to forget the rules, fail to fully understand them, or not appreciate how the Home Office conducts its calculations. To qualify for ILR on the long route, you must not have exceeded 180 days in any rolling 12-month period. If you fall foul of this rule, it will usually end your residence continuity under the immigration rules. It's essential to check every absence in each 12 month window. You shouldn’t assume that you will be OK or that the Home Office will waive your application through because of your current salary or circumstances.
- Lawful residence and visa dates
You may think you have an exemplary immigration record, but a blip in your immigration status could mean you were not lawfully resident for a few days during your 10 years of residence. This could be something as simple as a late visa application in the third year of your residence in the UK.
- Lawful residence start date
You may think that your lawful residence started in 2016, but it could be 2017 if you first entered the UK on a Visitor Visa or a short-term Student Visa. Even an application submitted a few days early can lead to an ILR refusal, leaving you in the UK unlawfully unless you can extend your current visa or switch to a new visa route.
- Incomplete paperwork
While you may know that you have been a lawful resident in the UK, you need to provide the evidence trail to prove it, such as records of visa grants. You can't assume the Home Office will check its records, or even that they'll be right.
- General grounds for refusal
If your residence is both continuous and lawful, your ILR application can still be refused on general grounds. For example, if you have a relevant conviction or if there are conduct issues such as nonpayment of tax or an immigration compliance issue during your last visa period, such as employment outside the work conditions for your visa.
Reviewing Long Residence ILR Refusals
Depending on the circumstances of the ILR refusal, you may be able to overturn it through a successful administrative review application, appeal or fresh application. There are strict time limits and grounds for administrative reviews and appeals. With fresh ILR applications, you need to address the reasons for the initial refusal and ensure that you still have lawful immigration status on the date of your second ILR application.
10 Year ILR Consultations
At OTS Solicitors, our experienced ILR Lawyers have encountered most ILR complexities and visa scenarios and will provide you with the expert immigration legal advice you need.
We provide jargon-free immigration advice so you understand what we are doing for you and why it's necessary under the immigration rules.
Our focus is on delivering a fast and friendly service that’s second to none. That’s important to us, as most of our Immigration Lawyers have either applied for settlement in the UK or have a family member who has. That’s why we understand how traumatic the process can be and how confusing immigration rules and Home Office guidance can appear.
With OTS Solicitors on your side, you’ll get plain, honest advice you can trust delivered by professionals with your interests at the forefront of everything we do.
Our expertise and attention to detail give us a first rate ILR success record. Whatever the complexities of your residence record or immigration history, talk to OTS about your long residence Indefinite Leave to Remain application.
Frequently Asked Questions on 10 Year Indefinite Leave to Remain Applications
When can I apply for UK settlement?
You can apply for UK settlement anywhere from three to twenty-plus years after entry into the UK. It's always worth checking with an Immigration Solicitor in London on your earliest possible date for an ILR application.
What's the earliest date I can apply for long residence ILR?
If you are applying to settle using the 10 year long residence route, you can apply for ILR up to 28 days before you complete your 10 years of UK residence. It's best to check that all 10 years of your residence count, because some of your time in the UK may not qualify as qualifying residence time under the immigration rules.
Can my family members use my 10 year residence to qualify for ILR?
No, they cannot do so. If your family members are applying for 10 year ILR they need to meet the residence requirement themselves. They can't rely on your record. Their residence record should be checked carefully, as their absences or visa status may differ from yours, so they may not meet the 10 year residence requirement at the same time as you.
Does 10 year residence guarantee me ILR?
No, a 10 year residence is essential for a long residence settlement application, but there are other criteria. You also need to meet the general criteria set out in the immigration rules.
Does time spent on a Student Visa count toward the 10 years?
Possibly. Time spent on a Student Visa does, but not time spent on a short-term Student Visa. An Immigration Solicitor can check if you meet the 10 year residence requirement.
How does the ILR rolling absence threshold work?
To qualify, you must not have exceeded 180 days' absence from the UK in any rolling 12-month period. The immigration rules define what counts as an absence.
If you exceeded the 180 day absence threshold in a 12 month window, your Immigration Lawyer may be able to argue that your compelling circumstances justify granting you Indefinite Leave to Remain.
How does COVID-related absence from the UK affect my 10 year ILR application?
Many people were forced to spend longer than planned outside the UK because of the pandemic. Special rules apply if your travel was affected by Covid travel restrictions or for other compelling reasons.
Will the earned settlement reforms affect my 10 year ILR application?
No, not at the moment. The earned settlement reforms are proposals. They may change or not make it onto the statute books. However, as most UK political parties want to toughen up the rules on ILR eligibility, it is sensible to apply for Indefinite Leave to Remain as soon as you become eligible.
My ILR application has been refused. What should I do?
If the Home Office has refused your settlement application, you should take urgent immigration legal advice. The ILR Lawyers at OTS Solicitors can advise you on your right to apply for an administrative review or appeal the decision. Your other option is to make a second ILR application. With expert advice and guidance, you may be able to secure ILR on a second attempt.