FREE CHAPTER from ‘A Practical Guide to Long Residence Applications Under the Immigration Rules’ by Rajiv Sharma

CHAPTER TWO – WHAT DO WE MEAN BY ‘LONG RESIDENCE’?


Long residence under the Immigration Rules has a specific meaning. Until the 9th of July 2012 the Immigration Rules contained two routes under the ‘Long Residence’ Provisions; one covering continuous lawful residence i.e. where an applicant had some form of visa or permission to be in the United Kingdom throughout the period; and another covering other periods i.e. where an applicant had some form of visa or permission to be in the United Kingdom for only some or even none of the period.

There were thus two routes and they were referred to as the ‘lawful residence’ and ‘unlawful residence’ provisions within the Long Residence Rules.

In June 2012 as part of a wider shake-up of the Immigration Rules (seen by some as the start of the ‘hostile environment)1, the decision was announced to remove or delete the ‘unlawful residence’ part of the Long Residence Rules2.

Included in that announcement was the introduction of a new ‘Private Life’ route to be found under paragraph 276ADE(1). That route included a provision for ‘unlawful residence’ of adults but increased the period of residence required from 14 years (under the pre-July 2012 rules) to 20 years as well as increasing the length of time an applicant under that route would need to wait to be able to permanently settle in the United Kingdom.

The entire ‘Private Life’ route has been moved again and can now be found under Appendix Private Life with the specific 20-year residence requirement being found at PL 5.1(a). The move was brought about by a statement of changes (statement to parliament by which the Rules themselves can be changed) laid before parliament on the 15th of March 20223. The explanatory memorandum4 (the document prepared by the Home Office to explain the purpose and aim of the changes) says the following about the nature of the change:

Introduction of the new Appendix Settlement Family Life and new Appendix Private Life

7.27 Appendix Settlement Family Life and Appendix Private Life replace existing provisions. Changes are being made to how these routes deal with validity of applications. The requirements currently set out in paragraph 34 of the Immigration Rules will now be in part replaced by validity rules in Appendix Private Life and Appendix Settlement Family Life which state:

The application must be made on the specified form on GOV.UK;

Any fee and Immigration Health Charge must have been paid;

The applicant must have provided any required biometrics;

The applicant must have provided a passport or other document which satisfactorily establishes their identity and nationality; and

A person applying for settlement must meet specified rules as to the current or previous permission held.

7.28 These validity rules do not represent significant policy change. Validity requirements for dependants are being aligned with other routes (see administrative changes in paragraph 7.43 and 7.44). Minor and technical changes are being made to ensure cross references are consistent with the new appendices.

7.29 Changes are being introduced which affect applications for settlement under Appendix Private Life and Appendix Settlement Family Life:

Applicants will be able to combine time on family and private life routes towards the qualifying period rather than having to ‘reset the clock’ on the qualifying period if their circumstances change, though they will need to complete at least a year in their current route;

Applicants will be able to count time on other routes to settlement where certain conditions are met;

Individuals who have a criminal conviction leading to a custodial sentence of 12 months or more will not be able to qualify for settlement;

Individuals who have a criminal conviction leading to a custodial sentence of less than 12 months will not be able to qualify for settlement unless the applicant has completed a qualifying period of 10 years and has completed 5 compliant years with permission on family and private life routes since the end of that sentence;

Applicants who take part in a sham marriage / civil partnership, use false documents or provide false information in an immigration application, use deception, owe unpaid litigation debt to the Home Office or unpaid debt over £500 to the NHS, or who breach immigration conditions during their qualifying period will ned to complete 10 years qualifying period, including 5 years continuous residence with permission since this came to the attention of the Home Office, before they qualify for settlement. Applicants who enter the UK illegally (except for children and young adults between the ages of 18-25 on the private life route) will need to complete a 10-year qualifying period before settlement;

Applicants for settlement will be able to rely on GCSE, A Levels or equivalent Scottish Higher qualifications in English language or literature following education in a UK school to show they meet the English language requirement (these changes are reflected in Appendix English language).’

Given the effective severing of the ‘unlawful residence’ route from the ‘lawful residence’ route the former is no longer considered a ‘Long Residence’ route even if that is what is logically catered for. Because it does not form part of the scope of ‘long residence’ given its legal definition, it also falls outside of the scope of this book.

This book will therefore focus on the remaining, ‘lawful residence’ route. This route has been subject to incremental change over time5 and most recently some ‘violence’ has been done to the drafting of the provision (i.e. how it is written and read) by the Courts in order for the provisions to make more sense. This will be explored further with reference to the Judicial comments in the relevant cases.

As we have seen in the preface, the government has been called out for the complexity of the rules in this and other areas before. So far most attempts to simplify the rules in a piecemeal fashion (usually by the creation of specific Appendices to the Immigration Rules) have not been enough and the Courts have commented that the entire system is unfit for purpose rather suggesting a more radical wholesale change may be more appropriate6.

Jackson LJ was so concerned with the state of the Rules that he stated the following in his Judgment in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568

[4] … These provisions have now achieved a degree of complexity which even the Byzantine Emperors would have envied.’

Indeed the Law Commission, an independent body tasked with reviewing existing law and recommending reform where necessary, describes the make-up of the Rules as follows:

Their structure is confusing and numbering inconsistent. Provisions overlap with identical or near identical wording. The drafting style, often including multiple cross-references, can be impenetrable. The frequency of change fuels complexity.’7

The primary recommendation within the report (with unanimous support from all consultees) was ‘that the Immigration Rules be overhauled.’8

This idea is not new, with previous Home Secretary The Right Honourable John Reid MP9 referring to the Home Office’s immigration operation as “not fit for purpose”10.

In relation to the rules for Long Residence, there have been governmental assurances that the rules will be re-drafted (rewritten), see below, but at the time of writing this book that is yet to happen.

At the time of writing (October 2022) we in the last week of a (catastrophic) Liz Truss premiership11 and Suella Braverman (ex-junior-junior Treasury Counsel – Barrister instructed on behalf of the government) was Home Secretary until she was replaced by Grant Shapps, after having to step down for breaching the ministerial code, become the shortest serving Home Secretary (so far). It remains to be seen what changes, if any, are made under the next incarnation of the Tory government.

Until those changes are made, the rules explored in this book are likely to continue to govern long residence applications.

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5A consideration of drafting changes is set out in the Judgment in Hoque from [72] – [83]

6See, for example, Alvi, R (on the application of) v Secretary of State for the Home Department [2012] UKSC 33

7Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 1.4 to 1.6.

9Now Lord Reid of Cardowan

11She has announced her resignation but not yet stepped down.