Understanding Indefinite Leave to Remain and Discretion in Applications
Written by
Helena Sheizon, Kadmos Consultants.
The question of whether there is any discretion in granting indefinite leave to remain (ILR) when applicants don’t meet every requirement of the rules is particularly pressing for many who have lived in the UK for a decade. For those who have invested a significant portion of their lives establishing roots in the UK, the thought of being denied because of a minor technicality can feel incredibly unjust.
The Importance of the Rules
Indefinite leave to remain based on long residence is governed by strict immigration rules that leave little room for caseworkers to exercise discretion. The overhaul of these rules, which began in 2012, was aimed at creating a more predictable and definitive immigration process. However, this has led to a landscape where flexibility is severely limited, and the fairness of these stringent measures can come into question.
For many immigrants seeking ILR through work-related routes, it’s crucial to understand that there is no right of appeal against refusals. The rules are unforgiving: if the criteria aren’t met, the application is automatically turned down. This can be disheartening, especially if only a small requirement is not fulfilled. The administrative review process serves as a mechanism to correct administrative errors but does not allow applicants to rectify their own mistakes. For instance, failing to include evidence of passing the Life in the UK test before submitting the application renders one ineligible for administrative review, even if one later passes the test.
Distinction in Application Types
Applications based on long residence have slightly different considerations. Unlike other immigration routes, they do afford applicants the right to appeal refusals in front of an independent immigration judge. However, it is worth noting that while an immigration judge can recognize the unfairness of an order to leave, they themselves do not have the authority to grant ILR outright. Instead, they can suggest that the Home Office reconsider your case, particularly if the judge believes certain aspects of your private and family life were inadequately assessed.
The Narrow Path to Discretion
So, what is it that immigration caseworkers can do when examining applications for indefinite leave to remain? The current rules are quite explicit about the requirements. To qualify, one must have spent an uninterrupted period of ten years in the UK, maintaining continuous residence and only engaging in permissible types of leave. English language proficiency and passing the Life in the UK test are also prerequisites for approval.
Notably, leave under the Ukraine scheme and time spent in the UK as a visitor or short-term student do not count towards this total. The detailed criteria for continuous residence can be found in the Appendix Continuous Residence, which stipulates how absences may or may not interrupt one’s residence status.
Timing and Application Strategy
What happens if you find yourself just a few days short of the ten-year mark when your current leave is about to expire? The caseworker guidance states that applications made too early (more than 28 days before the ten-year mark) will likely be denied. This emphasizes the importance of timing: it isn’t merely the date the application is submitted that matters; it’s also when it is being considered.
It’s also critical to submit your application before your visa expires. Overstaying is one of the gravest missteps one can make at this juncture. After submitting your application, there is some strategic wiggle room regarding your biometric appointment. Applicants have 35 days to complete this step, and delaying it may effectively postpone the onset of consideration by the Home Office, provided it is within the bounds of the application timeline.
The Possibility of Flexibility
While the rigid framework governing ILR applications leaves little room for discretion, the current guidance offers one small area of flexibility related to the timing of the application. This inconsistency, while small, remains the only chink in the armor of the stringent long residence rules. It’s important to remain aware of the fluidity of these guidelines; they are subject to change, so staying updated is vital for anyone navigating this complex process.
In navigating these murky waters, it’s essential to keep informed, seek expert advice when needed, and always approach deadlines with careful consideration. Keeping these nuances in mind can help ensure that applications are as robust as possible despite the stringent and often unforgiving nature of immigration rules in the UK.
