The long residence route to settlement provides a path to indefinite leave to remain (ILR) for those who have lived in the UK lawfully and continuously for ten years or more. Absences are often the most challenging part of a long residence application. Former students may have spent significant time outside the UK during the academic break without realising the later impact. To add to this challenge, there are two separate rules for absences:
Rule 1 - absences before 11 April 2024: Applicants must not have been outside the UK for more than 184 days at any one time and must not have spent more than 548 days in total outside the UK during this portion of the qualifying period.
Rule 2 - absences from 11 April 2024 onwards: Applicants must not be outside the UK for more than 180 days in any rolling 12-month period. The overall 548-day total cap no longer applies to this portion.
Applicants must meet both rules for the relevant periods of their ten-year residence.
For applicants with excess absences, their application will rely on the Home Office’s discretionary power to disregard absences which are “compelling and compassionate”.
Long residence IRL and absence rules
Under paragraph CR 3.4 (c) of Appendix Continuous Residence, an absence may be disregarded where it was due to "compelling and compassionate personal circumstances, such as the life-threatening illness of the applicant, or the life-threatening illness or death of a close family member". These examples are illustrative, not exhaustive.
The guidance states that "it may be appropriate to exercise discretion over excess absences in compelling or compassionate circumstances, for example where the applicant was prevented from returning to the UK through unavoidable circumstances."
What counts as compelling and compassionate circumstances?
The Home Office applies a very high bar to what constitutes "compelling and compassionate circumstances," so applicants should not assume that their absences will automatically be disregarded.
We regularly see refusals in relation to COVID-19 absences. Despite it being well-known what disruption the pandemic caused to international travel, the Home Office requires clear evidence to demonstrate how the applicant was specifically impacted by travel restrictions, such as evidence of cancelled flights. Where an applicant chose to remain outside the UK, they will have to provide strong evidence that this was for “compelling and compassionate” reasons, including in situations where they did so to care for family members.
Evidence to support a long residence ILR application
It is essential that applicants provide as much detail and supporting evidence as possible at the application stage. This includes:
- Detailed personal statements explaining the circumstances of each absence, why the applicant could not return sooner, and what steps they took to return as quickly as possible.
- Documentary evidence such as medical records, death certificates, flight cancellation confirmations, travel restriction notices, embassy correspondence, or any other contemporaneous documentation that corroborates the claimed circumstances.
- Evidence of ties to the UK demonstrating that the applicant's center of life remained in the UK throughout the absence, such as evidence of maintained accommodation, ongoing employment, children in school or continued financial commitments.
- Country-specific evidence where the absence related to travel restrictions or circumstances in another country, such as government lockdown orders, border closure notices, or Foreign Office travel advisories
How to appeal a long residence ILR refusal
Where a long residence application is refused, the applicant should be given a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber).
The appeal must be brought on human rights grounds, namely that the refusal of ILR is a disproportionate interference with the applicant's right to respect for private life under Article 8 of the European Convention on Human Rights. In considering the appeal, the Tribunal will assess whether the applicant meets the requirements of the Immigration Rules (including whether discretion should be exercised over absences) and, if not, whether refusal is nonetheless disproportionate in the circumstances.
The Immigration Judge will not just review the Home Office’s decision. They will also consider all the evidence, including any new evidence, and importantly make their own findings of fact on whether the circumstances are “compelling and compassionate.”
Case study: medical absences and long residence ILR
Our client, Stephen, is a US citizen with a medical condition requiring regular consultation with a specialist in the USA to prescribe and adjust medication.
After ten years’ continuous lawful residence in Scotland, Stephen had over 650 days of absence during the qualifying period before April 2024, where the total permitted under the rules was 584 days. The majority of the absences were medical absences.
We appealed the decision on human rights grounds, providing evidence that Stephen had travelled to receive medical treatment on his doctor's advice. We argued that the absences were medically necessary and should be considered “compelling and compassionate”. We also demonstrated that Stephen had established his life and career in Scotland over the last ten years.
The appeal was successful. The Judge found that the absences were on medical advice to receive medical treatment and that therefore fell into the compelling category. Stephen was granted ILR.
What could happen to the long residence route?
The UK Government has announced it will be abolishing the long residence route as part of significant reforms to the path to settlement. These reforms will increase the standard path to settlement from five years to ten years for most people, as well as introducing new barriers to settlement which will require applicants to demonstrate significant economic and social contributions to the UK.
These reforms have been highly controversial, and their implementation has already been delayed. We do not yet know what the new framework for settlement will look like or when it will be published. The new UK Prime Minister, Andy Burnham, has made no changes to the Home Secretary and it is unclear whether there will be any changes to the proposed immigration reforms of his predecessor.
For now, the long residence route remains available to applicants who have ten years of continuous lawful residence. Applications made before the rules change will be decided under the current rules, including those on absences.
Get advice on long residence ILR and excess absences
It may be possible to make an application for ILR on the long residence route with excess absences, provided those absences were for compassionate reasons. The key challenge is to show that the Home Office's very high bar for "compelling and compassionate" reasons is met.
A strong application with clear and comprehensive evidence will maximise the chances of success at application stage and avoid the cost and uncertainty associated with an appeal.
For assistance with a long residence application or appeal, please contact Jacqueline Moore or Vivian Macdonald.
