On 13 April 2023 the Immigration Rules changed not to allow any period on Temporary Admission or Immigration Bail to count towards the qualifying period for long residence.
The changes do not also allow time as a visitor, short-term student and on the seasonal worker routes to count towards long residence.
Prior to 13 April 2023, the effect of having been on immigration bail and temporary admission(T/A), was that as soon as an individual, who had been subject to these provisions, was granted limited leave to remain, past periods of T/A and bail could enable that person to become eligible to apply for indefinite leave to remain. This was by reference to paragraphs 276A and 276B of the Immigration Rules. For example, a failed asylum seeker granted temporary admission as evidenced by issue of an IS.96 document(now Bail 201 Form) for 10years from April 2012 but subsequently granted limited leave to remain on 1 April 2022, could anytime thereafter apply for indefinite leave to remain.
On 9 July 2012, Immigration Rules came into effect relating to private life as well as some family life provisions, setting individuals on course to become eligible for Indefinite Leave to remain after 10years.
Statement of Intent: Family Migration, June 2012, published nearly 11years ago just before the Rule changes of 9 July 2012, provided as follows in relation to eligibility for indefinite leave to remain under the 10year route to settlement;
“14. If an applicant cannot make an application for the five year route (e.g. because they cannot meet the rules on switching between migration routes in the UK), they can still make an application under the family Immigration Rules………..As they cannot meet the requirements of the five year family route, they will have a longer route to settlement: 10 years (granted in four periods of 30 months, with a fifth application for indefinite leave to remain).
59.Under the new rules, at least 20 years’ continuous residence in the UK, lawfully or unlawfully, will generally be required before a person can apply to start a 10 year route to settlement in the UK on the basis of the Article 8 right to respect for private life………
61.An applicant for leave to remain in the UK on the basis of private life must apply on the correct form and pay the relevant application fee. If they qualify, they will enter a 10 year route to settlement, consisting of four periods of 30 months’ leave to remain, plus a fifth application for indefinite leave to remain, if they qualify for it. Once on the route, applicants will have to make an application, on the correct form and paying the relevant application fee, at each further leave stage and for indefinite leave to remain”.
What however was left unamended for nearly 11years, having the real potential to lay bare, and to cut through the above policy intent, were the long residence provisions which allowed temporary admission, temporary release( and from 15 January 2018 immigration bail) to count as lawful residence.
Some applicants legitimately took advantage of the legal loophole to obtain an early grant of indefinite leave to remain, completely bypassing the 10year route to settlement:
Iyieke, R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1147 (11 August 2022), confirmed:
“10………A period of temporary admission can, if leave is subsequently granted, count towards the 10 year period of continuous lawful residence.
“26………This is because lawful residence is defined by paragraph 276A(b) of the Immigration Rules to include: existing leave to enter or remain; temporary admission or immigration bail; or an exemption from immigration control”.
Via the Statement of changes to the immigration rules: HC 1160 published on 9 March 2023, the UK Government finally woke from its legal stupor and gave notice that Rule changes were to come into effect on 13 April 2023.
The Explanatory Memorandum to the Statement of changes to the immigration rules provided as follows prior to the Rule changes:
“7.65 The current definition of what constitutes lawful residence in the long residence rules is not clear, and this has led to confusion for customers and a broader interpretation than intended. These changes will make the definition easier to understand and better represent the purpose of the long residence route”.
That T/A or Immigration Bail could count towards lawful residence was sufficiently clear. What the UK Government has apparently sought to do, is abruptly cut off the lifeline that enabled relevant previously overstaying long-term individuals, who were subsequently granted limited leave on the 10year route to settlement, to obtain an early grant of settlement. Obtaining early settlement correspondingly resulted in a closer step to obtaining British citizenship and substantial savings made in Home Office application fees with no longer a need to make repeated limited leave applications every 2 and half years.
What changes came into effect on 13 April 2023?
As regard the changes that came into effect on 13 April 2023, Statement of Changes to the immigration rules: HC1160 published on 9 March 2023 provides:
“Changes to Part 7
7.1. For paragraph 276A(b), substitute:
“(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker; or
(ii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) “lawful residence” does not include time spent on immigration bail.”
Paragraph 276A(b) and (c) of the Immigration Rules has therefore been amended to reflect the above.
Page 22 of Long residence Version 18.0 Guidance published on 13 April 2023 states:
“Treatment of temporary admission, temporary release, and immigration bail
Any periods of time with temporary admission, temporary release or immigration bail are not ‘lawful residence’ for the purposes of long residence and will break continuous residence”.
What were the Rules on 12 April 2023?
As regards applications made before 13 April 2023, the same Statement of changes made it clear:
“The following paragraphs shall take effect on 13 April 2023. In relation to those changes, if an application for entry clearance, leave to enter or leave to remain, has been made before 13 April 2023, such applications will be decided in accordance with the Immigration Rules in force on 12 April 2023.
- INTRO2
- INTRO4
- 7.1
…..”
As at 12 April 2023, Paragraph 276A of the Immigration Rules stated for the purposes of paragraphs 276B to 276D:
“(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain”.
Home Office Guidance, Long residence Version 17.0, 11 May 2021, in place prior to the Rule change of 13 April 2023 stated at page 9:
“Definition of continuous lawful residence
Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant had one of the following:
- existing leave to enter or remain
- temporary admission within section 11 of the 1971 Immigration Act where leave to enter or remain is subsequently granted
- an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain”.
The 2021 Long Residence Guidance further stated at page 21:
“Treatment of temporary admission or temporary release
This page tells you when temporary admission, temporary release or immigration bail counts as lawful residence for 10 years long residence applications.
Temporary admission or release or immigration bail only qualifies as lawful residence if leave to enter or leave to remain is later granted. For example, if an applicant is granted leave following a period of temporary admission, the time on temporary admission counts as lawful residence.
For an example of when temporary admission counts as lawful residence, see example 4 in the ‘examples of gaps in lawful residence’ section.
For more information, see Immigration Bail guidance”.
Previous TA and Immigration Bail: Recent success, Indefinite leave granted for long residence application made on 8 April 2023:
In August 2018, ZZ was granted leave to remain in the UK following having:
- arrived in the UK in January 2001 and made an immediate claim for asylum.
- her asylum appeal dismissed, made an EEA application, several Further submissions and a judicial claim.
ZZ had reached out for assistance in 2017 as regards regularisation of her stay having had sight of the following blog post:
The basis of grant of leave in August 2018 was that ZZ had resided in the UK for 17years and in light of the country conditions in Zimbabwe, it had been decided she would not be returned there. She therefore satisfied the private life Rules as she was able to show there were very significant obstacles to reintegration to life in Zimbabwe.
She commenced the arduous 10year route to settlement.
In 2021, ZZ applied for further leave to remain. By then she had accrued 20years residence however that entitled her only to a further grant of limited leave to remain. She was eligible for to apply for indefinite leave to remain on the private life route in August 2028.
On 4 April 2023, ZZ was notified by email that as from 13 April 2023, for the purposes of indefinite leave to remain applications by reference to the Long Residence Rules, it would no longer be possible to rely on past periods of Temporary Admission and Immigration Bail or as a visitor as periods of lawful residence. She was advised she could reply in return for further advice should she wish having regard to the imminent changes.
Having quickly grasped the significance of the changes, ZZ instructed that she wished to proceed as soon as possible with an application for indefinite leave to remain.
In readiness for the application, the following was considered and put in place:
- ZZ had already provided in her 2021 limited leave application, documentation as to residence from 2001 including IS.96 documents running continuously from March 2001 to September 2016, reflecting a grant of Temporary Admission. She had for many years been reporting until grant of limited leave to remain in August 2018, abiding with this and other conditions of T/A. This evidence was uploaded once again in relation to her settlement application.
- ZZ was advised to update on evidence of continued residence from late 2021(point of grant of further limited leave) and documentation as to current employment. Her lengthy documented immigration history was already evident by reference to the previously prepared Representations of 2021.
- ZZ had a bachelor’s and master’s degrees taught in the UK for the purposes of demonstrating sufficient knowledge of the English language, however she was yet to take the Life in the UK test.
On 8 April 2023, ZZ applied for indefinite leave to remain on the basis that she had completed 10years continuous lawful residence in the UK relying upon the Immigration Rules in place as at 12 April 2023.
On 6 May 2023, ZZ sat and passed the Life in the UK test. Evidence of the pass result was uploaded along with the rest of the supportive documentation and detailed Representations.
The Representations put forward amongst other matters:
- ZZ was applying for indefinite leave to remain following a period of 10 years continuous lawful residence in the UK, by reference to Paragraph 276B of the Immigration Rules.
- ZZ had made an application for indefinite leave to remain on 8 April 2023 prior to 13 April 2023 and was caught by the Rules in force on 12 April 2023.
- In relation to the relevant periods of existing leave to remain, ZZ had since August 2018 held existing leave to remain. She timely extended her leave to remain in 2021 and continued to hold leave to remain granted in late 2021 for 30months.
- ZZ was granted T/A in March 2001. As Temporary Admission was never cancelled/revoked/withdrawn, she was on Temporary Admission from the year she arrived, until 14 January 2018
- Due to operation of law(Schedule 10 to the Immigration Act 2016 and Immigration Bail Guidance), from 15 January 2018, ZZ was treated statutorily as being on Immigration Bail until she was granted limited leave to remain in August 2018.
- As ZZ was subsequently granted leave to remain, periods of Temporary Admission and Immigration Bail count as lawful residence for the purposes of the long residence application.
- ZZ was not in the UK in breach of immigration laws as she held limited leave to remain
ZZ had her biometrics enrolled at a UKVCAS centre on 9 May 2023.
On 16 May 2023, the Home Office emailed ZZ to inform her she had been granted Indefinite leave to remain following her application of 8 April 2023.