Requirements for 10 Years Long Residence and the Case of Afzal V SSHD
The person must have lived in the UK lawfully for 10 continuous years to be eligible for settlement. The requirements for a 10-year long route to settlement are set out in paragraph 276B of the Immigration Rules. The applicant must meet several requirements to obtain ILR after 10-year continuous lawful residence in the UK.
Requirements for 10 Years Long Residence
ILR applications on the basis of a 10-year lawful stay can be quite complex in nature. The applicant must fulfil the following requirements to obtain Indefinite Leave to Remain under the long residency route:
- The applicant fulfils the 10-year long lawful and continuous residency requirements
- The continuous lawful residence was unbroken
- Not spent 540 days outside the UK during the qualifying period
- Not absent from the UK for over 6 months at any one time
- The application does not fall for refusal on public interests, suitability, and undesirability grounds
- The applicant must pass the English language and Life in the UK test at an approved centre
Case of Afzal v SSHD
The non-payment of Immigration Health Surcharge (IHS) resulted in the continuous residence being broken in the case of R (Afzal) v SSHD 2021 EWCA civ1909 in lieu of a 10-year long residence route to settlement.
A little relevant backstory here, the claimant is a Pakistani national who arrived in the United Kingdom in February 2010 on a student visa. He applied for a visa extension and was granted leave to remain until 14th July 2017.
The latest visa extension application was accompanied by a fee waiver request which was subsequently refused by the Home Office. The applicant was given 10 days to pay the application, IHS, and other relevant fees.
Although the application fee was paid timely, the applicant’s inability to pay Immigration Health Surcharge led to the extension application being invalidated. On 2nd February 2018, Mr Afzal made another application for leave to remain, upon approval, he was given permission to stay from 5th September 2019 until 4th March 2022.
After completing 10 years of residence, he applied for settlement or ILR. The application was rejected by the Home Office due to the continuous lawful residence being disrupted from 14th July 2017 until 5th September 2019.
The matter came before the Upper Tribunal. It was decided that Mr Afzal was a lawful resident until 22 January 2018 and the continuous residence period was broken until 5th September 2019.
Invalidity of Application and the Grace Period
The reason for the invalidity of the application was the inability to enroll biometrics. Commonly, the invalidity of applications falls under paragraph 39E protection and “non-applications”. Since Mr Afzal applied within the paragraph 39E, 14-day grace period, therefore, his overstaying was deemed to be lawful.
The applicant relied on his book-ended overstaying, however, the court ordered that although this kind of overstaying does not break the lawfulness of residence, it would not be counted towards the ten-year qualifying period.
