ILR (long residence) 276a rule

[Jumbolizard]

Hi, I'm planning to apply for ILR on long residence basis. I did my Masters in the UK and stayed for 1 year and 4 months on the Tier 4 visa without overstaying. I left the UK in May 2016 and applied for a new tier 4 visa for my PhD in July 2016. I returned to the UK in September 2016. I wonder if I can qualify the period I spent in the UK during Master's towards long residence period?

Long residence guide says:

"Continuous residence is not considered broken if the applicant:

is absent from the UK for 6 months (184 days) or less at any one time

had existing leave to enter or remain when they left and when they returned – this can include leave gained at port when returning to the UK as a non-visa national
...

If the applicant had existing leave to enter or remain when they left and returned to the UK, the existing leave does not have to be in the same category on departure and return. For example, an applicant can leave the UK as a Tier 4 (General) student and return with leave as a spouse of a settled person. Continuous residence is not broken as the applicant had valid leave both when they left and returned to the UK."

However, immigration law states:

276A. For the purposes of paragraphs 276B to 276D.
(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
....(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return;...

[zimba]

Both say the same thing. If you left with a valid visa and returned within 6 months, then the continuous residence is maintained

[Jumbolizard]

Thanks Zimba.
I've interpreted the Immigration law in a way that if I left without expectations of return (e.g. I wasn't able to apply for the next visa straight away) then the continuous residence was broken even though I return withing 6 months.

[vinny]

Example 2.

[Jumbolizard]

Hi all! I was reading an updated guidance on continuous residency and found this paragraph:

Applications from outside the UK
In limited circumstances where a person had permission before leaving the UK and made a successful application from outside of the UK, it will not break the period of continuous residence.

Applications for permission that were made outside the UK on or after 26 November 2016 will not break the period continuous residence if:

the applicant had permission when they left the UK and made a successful application for entry clearance before that permission expired

the applicant had permission when they left the UK and made a successful application for entry clearance within 14 days of that permission expiring except for applicants applying under Appendix Long Residence

under Appendix Long Residence, the applicant had permission where they left the UK and returned to the UK with valid permission in the same or another route provided the applicant was not absent for more than 184 days (where the absence started before 11 April, 2024 or 180 days for absences from 11 April 2024), continuous residence is not broken

Applications for permission that were made outside the UK before 26 November 2016 will not break continuous residence if:

the applicant made a successful application for permission within 28 days of their previous permission expiring

the applicant had permission when they left the UK and made a successful application for entry clearance before that permission expired

In May 2016 I went back to my home country for 4 months. I left the UK before my visa expired but I didn't apply for next visa within 28 days from previous visa expiration date. Am I interpreting the rules correctly by saying that now it will count as I broke continuos residence?

I've seen similar rules before in the skilled worker IRL guidance, but I never seen this being applied for long residence ilr until now.

[vinny]

Breaking continuous residence

CR 4.1. An applicant’s continuous residence period will be broken if any of the following apply:

• (d) the applicant does not currently have, or did not have, permission, unless:
  
  • (iii) the application is under Appendix Long Residence, and the applicant had permission when they left the UK and returned to the UK with a valid permission (on the same or another route), provided they do not exceed the absence period in CR 2.1., CR 2.2. or CR 2.2A.; or

CR 4.2. Any period without permission under CR 4.1.(d) before 24 November 2016 will break the continuous residence period unless:

• (b) the applicant had permission when they left the UK, applied for entry clearance before that permission expired and that application for entry clearance was successful.

CR 4.3. Where CR 4.1(d) applies, any period of time where the applicant did not have permission will be disregarded when calculating the continuous residence period in CR 6.1.

Continuous residence requirements for permission to stay on the long residence route

Paragraph CR 4.1.(d)(iii) also preserves the position in the rules as of 10 April 2024 for applicants who had permission when they left the UK and returned to the UK with a valid permission, provided they do not exceed the limit of permissible absences.

For more detail see the Continuous residence guidance.

Continuous residence guidance

Example 2: specific to Appendix Long Residence
An applicant:

• enters the UK on 1 September 2004 with entry clearance as a student which is valid until 31 October 2005
• leaves the UK on 25 October 2005, before their permission expired
• re-enters the UK with valid entry clearance as a student on 5 January 2006

The person had valid permission on the date of their departure and on the date of their return to the UK, and the time spent outside the UK was less than 6 months (184 days). Continuous residence has been maintained, even though the person entered the UK with a fresh grant of permission.

However, does CR 4.1(d) apply when it’s subject to an “unless” in CR 4.1(d)(iii)? If CR 4.3. applies, then would they disregard the period without leave outside the UK for the purposes of satisfying the qualifying period for ILR under Long residence? Then CR 4.3 may not preserve position in the rules prior to the changes?

[Jumbolizard]

Thanks Vinny. I don't think CR 4.2 b applies to me. I applied for new permission 2 months after my previous visa expired.

[kumarnat]

Breaking continuous residence

CR 4.1. An applicant’s continuous residence period will be broken if any of the following apply:

• (d) the applicant does not currently have, or did not have, permission, unless:
  
  • (iii) the application is under Appendix Long Residence, and the applicant had permission when they left the UK and returned to the UK with a valid permission (on the same or another route), provided they do not exceed the absence period in CR 2.1., CR 2.2. or CR 2.2A.; or

CR 4.2. Any period without permission under CR 4.1.(d) before 24 November 2016 will break the continuous residence period unless:

• (b) the applicant had permission when they left the UK, applied for entry clearance before that permission expired and that application for entry clearance was successful.

CR 4.3. Where CR 4.1(d) applies, any period of time where the applicant did not have permission will be disregarded when calculating the continuous residence period in CR 6.1.

Continuous residence requirements for permission to stay on the long residence route

Paragraph CR 4.1.(d)(iii) also preserves the position in the rules as of 10 April 2024 for applicants who had permission when they left the UK and returned to the UK with a valid permission, provided they do not exceed the limit of permissible absences.

For more detail see the Continuous residence guidance.

Continuous residence guidance

Example 2: specific to Appendix Long Residence
An applicant:

• enters the UK on 1 September 2004 with entry clearance as a student which is valid until 31 October 2005
• leaves the UK on 25 October 2005, before their permission expired
• re-enters the UK with valid entry clearance as a student on 5 January 2006

The person had valid permission on the date of their departure and on the date of their return to the UK, and the time spent outside the UK was less than 6 months (184 days). Continuous residence has been maintained, even though the person entered the UK with a fresh grant of permission.

However, does CR 4.1(d) apply when it’s subject to an “unless” in CR 4.1(d)(iii)? If CR 4.3. applies, then would they disregard the period without leave outside the UK for the purposes of satisfying the qualifying period for ILR under Long residence? Then CR 4.3 may not preserve position in the rules prior to the changes?

Struggling to understand this portion. Could you please clarify if these clause is applicable for the above mentioned scenario of the applicant and breaks continuous residence in long stay route ?

[vinny]

I think Continuous residence is unbroken and regarded if leave expires outside the UK and the holder returns within six months after departure with new includable (e.g. not as a visitor) leave.