Long Residence - Contradicting rules and guidance wording

[thaicharoens]

Hello everyone,

So my situation is as follows - Been here since 2010, but wasn't able to apply for SET(LR) due to excessive absences so have to stay longer to reduce the absences. Under the old rules, I would have been eligible for SET(LR) in September 2024 (this year), however with the rule changes it may seem that I can apply now, however I want to seek some advice on the wording of the guidance and rules.

My absences before 11-April 2024 exceed the 548 day limit, however it seems that transition arrangements are in place where if I make an application using a period that extends beyond 11/04/2024, that limit no longer applies.

None of my rolling absences exceed 180 days in a 12-month period OR 184 days in a single instance.

Under the updated Continuous Residence rule CR2.2A says as follows (https://www.gov.uk/guidance/immigration ... -residence):

CR 2.2A. Where the application is under Appendix Long Residence, for any qualifying period before 11 April 2024, the applicant must not have been outside the UK for more than 184 days at any one time, and must not have spent a total of more than 548 days outside the UK during that qualifying period, subject to CR 2.3.

The updated Continuous Residence (and Long Residence) guidance at pages 23 AND 33 says as follows (https://assets.publishing.service.gov.u ... idence.pdf):

Page 23:

• any single absences started before 11 April 2024 must be no longer than 184
  days
• a 10-year period completed before 11 April 2024 must not have total
  absences of more than 548 days - for 10-year periods which extend beyond
  11 April 2024, there is no 548-day limit
• from 11 April 2024 the applicant must not have been outside the UK for more
  than 180 days in any 12-month period

Page 33:

Example 2
An applicant’s 10-year qualifying period would be completed on 30 April 2024. The
applicant had been absent from the UK for 40 days in 2022 and 11 days between 10
April 2024 and 21 April 2024.

As the absences started before 11 April 2024, any single absences started before 11
April 2024 must be no longer than 184 days.

As the 10-year period extend beyond 11 April, there is no 548-day limit

Further, the general information page for SET(LR) says (https://www.gov.uk/long-residence/eligibility):

If your time abroad began before 11 April 2024
During the 10-year qualifying period, you do not have continuous residence if you were abroad for more than:

• 548 days in total
• 184 days in any 12-month period

I'd really appreciate your input in whether I qualify or not, as the wording contradicts each other in some places. Example 2 does make it seem that I qualify (as 548 limit does not apply), but with the other wording being inconsistent, I am not sure. If example 2 is correct, then I can say in the application that my qualifying period is say from 17/04/2014 - 17/04/2024 which extends beyond the 11th April 2024.

Thank you in advance!

[zimba]

There are 3 bullet points you need to know, which are covered below. It is very clear and self-explanatory. If your 10 years completed after 11 April 2024, then the 548 limit no longer applies:

These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024. This means that:

•any single absences started before 11 April 2024 must be no longer than 184 days
•a 10-year period completed before 11 April 2024 must not have total absences of more than 548 days - for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit
•from 11 April 2024 the applicant must not have been outside the UK for more than 180 days in any 12-month period

https://www.gov.uk/government/publicati ... accessible

[thaicharoens]

Thanks for your reply Zimba.

So I can interpret this in 2 ways:

1) As I came to the UK in 2010, my original 10 year period was completed in 2020, so would this mean the 548 day limit would apply in any application I make, even if I use a different qualifying period that extends beyond 11 April 2024?

or

2) If I use a 10 year period that completes after 11/04/2024 (Ie. 17/04/2014 - 17/04/2024) as I still have valid leave, as this period "completes" after the said date, and therefore no 548 limit will apply.

Further, if the latter (2) is the case, wouldn't that practically mean they've opened up SET(LR) retrospectively as an applicant would need to be in the UK with valid leave to apply anyway?

[zimba]

It will be the latter. You can no longer rely on the historic 10-year qualifying period:

Paragraph CR 6.1. of Appendix Continuous Residence sets out that the continuous residence periods will be calculated by counting back from the relevant date. This means that an applicant cannot rely on a historic 10-year qualifying period, outside of the limits defined in CR 6.1. See more detail in the Continuous residence guidance.

https://assets.publishing.service.gov.u ... idence.pdf

So one of the following dates will be used as per Appendix Continuous Residence to calculate the 10 years, the one that is most beneficial to the applicant:

You must count backwards from whichever of the following is most beneficial to the applicant to see whether they meet the qualifying period:
• the date of application
• any date up to 28 days after the date of application
• the date of decision
• for a person seeking settlement on the UK Ancestry route, the date of their last
grant of permission

https://assets.publishing.service.gov.u ... idence.pdf

[McDingoberg]

These still don't address the fact that its wording is totally contradicting the above-mentioned Continuous Residence rule CR2.2A, and the general information page SET(LR).

So has the Home Office made a mistake or do you think there are alternative ways to interpret its meaning?

Thank you.

There are 3 bullet points you need to know, which are covered below. It is very clear and self-explanatory. If your 10 years completed after 11 April 2024, then the 548 limit no longer applies:

[zimba]

These still don't address the fact that its wording is totally contradicting the above-mentioned Continuous Residence rule CR2.2A, and the general information page SET(LR).

So has the Home Office made a mistake or do you think there are alternative ways to interpret its meaning?

Thank you.

There are 3 bullet points you need to know, which are covered below. It is very clear and self-explanatory. If your 10 years completed after 11 April 2024, then the 548 limit no longer applies:

General information page of SET(LR) ? Where is that and what is the contradiction ?

[McDingoberg]

"If your time abroad began before 11 April 2024:
During the 10-year qualifying period, you do not have continuous residence if you were abroad for more than:

548 days in total
184 days in any 12-month period" - https://www.gov.uk/long-residence/eligibility

These still don't address the fact that its wording is totally contradicting the above-mentioned Continuous Residence rule CR2.2A, and the general information page SET(LR).

So has the Home Office made a mistake or do you think there are alternative ways to interpret its meaning?

Thank you.

There are 3 bullet points you need to know, which are covered below. It is very clear and self-explanatory. If your 10 years completed after 11 April 2024, then the 548 limit no longer applies:

General information page of SET(LR) ? Where is that and what is the contradiction ?

[zimba]

I am afraid that advice on GOV.UK is inaccurate this is why you should never rely on it. You should ONLY refer to the official guide and the immigration rules as explained above

[McDingoberg]

Thanks But it is the Guidance (i.e. "for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit") contradicting the Immigration Rule (i.e. CR 2.2A)here. We want to rely on both but we literally can't.

I am afraid that advice on GOV.UK is inaccurate this is why you should never rely on it. You should ONLY refer to the official guide and the immigration rules as explained above

[zimba]

Thanks But it is the Guidance (i.e. "for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit") contradicting the Immigration Rule (i.e. CR 2.2A)here. We want to rely on both but we literally can't.

I am afraid that advice on GOV.UK is inaccurate this is why you should never rely on it. You should ONLY refer to the official guide and the immigration rules as explained above

What ?? Again, what is the contradiction ? Can you be more specific ?? Do you understand how the transitional arrangements work ?

[LESTOU]

If your time abroad began before 11 April 2024
During the 10-year qualifying period, you do not have continuous residence if you were abroad for more than:

548 days in total
184 days in any 12-month period


so what you mean is from government website, the 184 days in any 12-month period is not accurate? am I right?

[zimba]

Correct. It would be an absence of more than 184 days in one block rather than a rolling calculation. The rolling calculation applies only if a period of absence began after 11 April 2024.

[abdo_hany]

It is still a bit contradicting, where for people that came to the UK before 2024 April 11th, and had abcence more than 548 days BEFORE Aprill 11th, will they be applicable to apply or not.

For example I came to the UK September 2016 and had around 600 days of absence from September 2016 to September 2021.

Didnt break 184 days at one.

When September 2026 comes, and my 10 year qualifying period is done; without breaking the NEW 180 days in 12-months, am I eligible to apply to the ILR ? or Not cause I broke my 548 day rule, (Before 11 April 2024)

[thaicharoens]

It is still a bit contradicting, where for people that came to the UK before 2024 April 11th, and had abcence more than 548 days BEFORE Aprill 11th, will they be applicable to apply or not.

For example I came to the UK September 2016 and had around 600 days of absence from September 2016 to September 2021.

Didnt break 184 days at one.

When September 2026 comes, and my 10 year qualifying period is done; without breaking the NEW 180 days in 12-months, am I eligible to apply to the ILR ? or Not cause I broke my 548 day rule, (Before 11 April 2024)

It does say on page 33 of the continuous residence guidance (https://assets.publishing.service.gov.u ... idence.pdf) that:

If the applicant is applying under Appendix Long Residence and the absence from the UK started before 11 April 2024, any absences are considered towards a limit of 184 days in one period and not more than 548 days in total if the qualifying period completed before 11 April 2024.

and

Any absences for Appendix Long Residence which started before 11 April 2024
Any single absences started before 11 April 2024 must be no longer than 184 days.

Any absences for Appendix Long Residence where the 10-year qualifying period completed before 11 April 2024
Any single absences started before 11 April 2024 must be no longer than 184 days.

A 10-year period completed before 11 April 2024 must not have total absences of more than 548 days.

So as your 10 year period completes AFTER 11 April 2024, the 548-day limit does not apply.

[abdo_hany]

So this is contradicting both below

1- gov.uk https://www.gov.uk/long-residence/eligibility

''If your time abroad began before 11 April 2024
During the 10-year qualifying period, you do not have continuous residence if you were abroad for more than:

548 days in total
184 days in any 12-month period''



2-https://assets.publishing.service.gov.u ... idence.pdf

''Absences from the UK
Continuous residence is broken in specified circumstances such as when an
applicant:
• is absent for more than 180 days in any 12-month period without permitted
reasons
• is applying under Appendix Long Residence and was absent for a period of
more than 6 months (184 days) at any one time or spent a total of 18 months
(548 days) outside the UK and the absence started before 11 April 2024
without permitted reasons.''

Appendix Long Residence: transitional arrangements for
applicants where the absence started before 11 April 2024
Appendix Continuous Residence (at paragraph CR 2.2A) recognises that its
provisions are different from the previous long residence rules at paragraph 276A
and makes transitional arrangements specifically for long residence applicants.
These transitional arrangements preserve the position that continuous residence will
be broken if an applicant has been absent from the UK for more than 184 days at
any one time or for more than a total of 548 days overall, where that absence started
before 11 April 2024. This means that:
• any single absences started before 11 April 2024 must be no longer than 184
days
• a 10-year period completed before 11 April 2024 must not have total
absences of more than 548 days - for 10-year periods which extend beyond
11 April 2024, there is no 548-day limit
• from 11 April 2024 the applicant must not have been outside the UK for more
than 180 days in any 12-month period''

Because I was here starting 2016 - then my time abroad began before 11 April 2024 - so I dont have a continuous residency as I was out more than 548 BEFORE 11 April 2024.


Thats what I am afraid of - contradiction here.

Except if the 10-year qualifying period means something else

[zimba]

There is no contradiction at all. As I said above, ignore the GOV.UK website.
In the guide, look at example 3 for the long residence. If your 10 years extend beyond 11 April 2024, then there is no 548 day limit at all

[mww]

Hi @thaicharoens,

Wanted to check if you got any more clarity on this? I totally agree there are lots of contradictory statements in the home office guidances. I've also been in touch with a few immigration lawyers, and there's a clear split in the interpretation of the rules.

Please let me know if you figured this out!

[zimba]

Hi @thaicharoens,

Wanted to check if you got any more clarity on this? I totally agree there are lots of contradictory statements in the home office guidances. I've also been in touch with a few immigration lawyers, and there's a clear split in the interpretation of the rules.

Please let me know if you figured this out!

There is no contradiction if you know what you are doing. People with very very little experience with the rules trying to figure things out, it will look confusing

[mww]

Hi @thaicharoens,

Wanted to check if you got any more clarity on this? I totally agree there are lots of contradictory statements in the home office guidances. I've also been in touch with a few immigration lawyers, and there's a clear split in the interpretation of the rules.

Please let me know if you figured this out!

There is no contradiction if you know what you are doing. People with very very little experience with the rules trying to figure things out, it will look confusing

Hello,

I've actually consulted immigration lawyers who have given me advice stating that any absences prior to 11-Apr-24, despite qualifying periods ending post 11-Apr-24, has a 548 day limit! I personally am not interpreting the guidance this way but their argument is:

1. "CR 2.2A. Where the application is under Appendix Long Residence, for any qualifying period before 11 April 2024, the applicant must not have been outside the UK for more than 184 days at any one time, and must not have spent a total of more than 548 days outside the UK during that qualifying period, subject to CR 2."
Link - https://www.gov.uk/guidance/immigration ... -residence

They are interpreting the above as, any qualifying period before 11 April 2024 is still governed by the 548 day rule and any period that extends beyond that date is no longer governed by that : e.g. qualifying period 01/06/14- 01/06/24
01/06/14 - 11/04/24 - they think the 548 day rule still applies here
11/04/24 - 548 day rule no longer applies here

Basically, the above can be interpreted that this applies to qualifying periods [that end?] before or one can argue it is any part of your qualifying period before 11-Apr-24

Unfortunately this is the only language written in the "Immigration Rules"

With regards to the Continuous Residence casework guidance

2. These transitional arrangements preserve the position that continuous residence will be broken if an applicant has been absent from the UK for more than 184 days at any one time or for more than a total of 548 days overall, where that absence started before 11 April 2024. This means that:

This can be interpreted as for any absences before 11 Apr 24, regardless of when the qualifying period ends/ completes, the 548 day rule applies

> a 10-year period completed before 11 April 2024 must not have total absences of more than 548 days - for 10-year periods which extend beyond 11 April 2024, there is no 548-day limit

This can be interpreted as if the qualifying period ends/ completes after 11 Apr 24, even for absences before 11 Apr 24, there is never a 548 day limit (I interpreted it like this esp. based on the examples)

OR This can be interpreted as any part of your qualifying period completed before 11-Arp-24 has a 548 day limit and any part of your qualifying period extending after 11-Apr-24 has no 548 day limit (lawyers argued this is correct and ties with immigration rules doc..)

3. All the examples in the guidance point toward there not being a 548 day limit if the qualifying period ends after 11-Apr-24


As you can see there is a mix of language that can be interpreted in different ways...

There's also been mixed guidance on articles published on various lawyers websites, with some having the view that for an absences prior to 11-Apr-24, the 548 day limit applies, even if the qualifying period ends post 11-Apr-24 and others stating that as long as the qualifying period ends post 11-Apr-24 there is no 548 day limit at all.

Finally, there is also an article on Free Movement stating:

"However, it appears the Home Office is currently pausing making decisions on applications where the pre-11 April 2024 absences exceed 548 days until their policy team provides guidance on the transitional arrangements. It’s frustrating that this wasn’t done before publishing the new rules and guidance that seem to clearly allow this but we will hopefully know one way or the other soon."

And in the comments section, there is a lawyer who's clients case has been paused.

In summary, while I agree the examples of in the guidance and some of the language clearly points towards the 548 day limit not applicable anymore, in reality people are interpreting the language in many ways and seems like the home office is also pausing to figure out their policy....

It seems that you are quite sure about the interpretation of the rules, can I check if you have yourself/ come across someone who has applied under the new law, who had absences more than 548 day prior to 11 Apr 24 but the qualifying period ended after 11 Apr 24?

Would be very grateful if you can let me know of any successful application as this is my key issue!

[zimba]

I base my understanding on the example given in the guide and the fact that it says if your 10-year period extends beyond 11 April 2024, then the 548-day limit does not apply. If that was indeed wrong, then it is the home office that has to retract all those but the guide (clearly as things stand), points to this interpretation.

Of course, an argument can be made that given the historical 10-year lawful residence is no longer acceptable, ANY applicant who applied after 11 April 2024, cannot ever fail the 548-day limit and such a limit effectively should have been totally scrapped. If that is the concern and source of confusion, then I agree that it needs to be resolved.

[mww]

I base my understanding on the example given in the guide and the fact that it says if your 10-year period extends beyond 11 April 2024, then the 548-day limit does not apply. If that was indeed wrong, then it is the home office that has to retract all those but the guide (clearly as things stand), points to this interpretation.

Of course, an argument can be made that given the historical 10-year lawful residence is no longer acceptable, ANY applicant who applied after 11 April 2024, cannot ever fail the 548-day limit and such a limit effectively should have been totally scrapped. If that is the concern and source of confusion, then I agree that it needs to be resolved.

Yes, the lawyer I spoke to actually did make that argument..

Anyway, if anyone on this thread knows anything further re this please do let us know!

[thaicharoens]

To me it also seems like CR2.2A is unclear on it's own. It says "any qualifying period", which can be interpreted as "any WHOLE qualifying period" or "any PART OF a qualifying period". From the guidance, it seems like it's been interpreted as the former, whole qualifying period. But we shall see, hopefully soon.

[vinny]

There is no contradiction if you know what you are doing. People with very very little experience with the rules trying to figure things out, it will look confusing

Given the recent retroactive multiple accumulative complex changes to the original relatively simple Long Residence Rules, I doubt that they know what they are doing.

In the original rules, some had misunderstood that visitors may be included and this sparked off more and more irrationally.

[TerryGH]

Would be very grateful if you can let me know of any successful application as this is my key issue!

Can confirm a successful application. ILR long residence, in the country since 2012, absences between May 2014 and May 2024 above 700 days. No single absence above above 184 days, and no absences in any year above 180 days.
Application was a couple of weeks ago, Super Priority, ILR granted on the day of biometrics.

[vinny]

Congratulations!