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Indefinite Leave to Remain – an update on the recent law – do you qualify?

As an immigration barrister specialising in direct access work over the last 20 years I have been looking at the recent changes to the ILR route as defined by the Home Office under paragraph 276B of the Immigration Rules.

Indefinite Leave to Remain – have you got breaks in your leave – do you qualify? 

Today I am going to be summarising the on new case law which is actually favouring applicants who would have previously been refused ILR.

If you are thinking of making an application for ILR – or any application for leave to remain or simply want some honest immigration advice please get in touch with me and I will do all I can to help.

So now let’s look at the different routes to getting Indefinite Leave to Remain. There have been several new cases on this subject recently which have changed the position. 

These are all related to the requirement for somebody to have been in the UK with 10 years’ worth of continuous lawful residence, under paragraph 276B of the IR. 

This Rule and its application has been the subject of a fair amount of litigation over the last few years.

Previously, the courts were very strict. Very strict indeed.

If you ever had a time when you didn’t have valid leave – for example you once applied for an extension of a visa a few days late, you would not have 10 years’ continuous lawful leave. 

This was on the basis of a Court of Appeal case called Masum Ahmed in 2019. Even if the Home Office had overlooked the gap in leave at the time the extension was granted, when it came to applying for ILR, you would be refused. 

Thankfully, the Court of Appeal revisited this subject in the more recent cases of Hoque and Asif. They confirmed that if you have gaps in your leave but these have been “book ended”, you can rely on them when it comes to applying for ILR. 

In the case of Atif even a gap of 507 days like in Asif can count when it comes to  applying for ILR, depending on the facts of your case.

A further positive development is where an appeal was lodged out of time as this was considered to have broken someone’s leave and taken them outside of both Hoque and Asif.

In Asif the Court found that if the appeal was lodged late but accepted by the Court then this had the effect of bringing back to life your leave under s.3C something that was previously thought impossible, the Court also commented that the period between the expiry of the time limit to appeal and the appeal, if accepted, ought to be overlooked.

These are fairly big changes to what was the restrictive approach in Masum Ahmed which the Court in Hoque found was wrongly decided, and the following cases build on this. As a result I have been able to help several clients with the ILR applications since this decision, even if the Home Office are clearly not happy about it.

Finally, it is worth mentioning that I have also been able to get lots of successes for people who were wrongly accused of cheating during the TOEIC scandal with their English language tests. We have been able to get ILR for people who were refused visas after the Home Office curtailed their visas. Even though these people have gaps in their leave, we have secured them ILR. 

If you have been in the UK for 10 years, you may well be able to get ILR. Contact us today and we will be able to advise you on whether you are eligible for ILR. Even if you aren’t, we will be able to help you with a variety of different types of application and will make sure that you apply for the best type of visa for your specific case. 

Paul Turner is a highy experiened immigration barrister with over 20 years practice having worked for the Home Office some 20 years ago and has a unique perspective on obtaining leave and fighting for the rights of my clients. If you or a family member want Immigration Advice and would like a honest opinion on where you stand please get in touch with me at Imperium Chambers on 020 7 242 3488 or contact me through this page. I look forward to being able to help you through the maze of the Immigration Rules during these trying times given the current pandemic / hostile enviornment.

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