Here we discuss the changes brought about by the recent decision in R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076 and the effects of this decision for applicants who seek Indefinite Leave to Remain after 10 years of lawful residence in the UK

The 10 year long residence route to Indefinite Leave to Remain (ILR) provides a route to settlement based on continuous lawful residence in the UK for a period of 10 years. There have been recent updates in case law when it comes to addressing the “continuous lawful residence” requirement in light of R (Mungur) v Secretary of State for the Home Department[2021] EWCA Civ 1076; here, the court considered whether time that was spent in the UK as a visitor would count towards the requirement of 10 years continuous residence.

Definition of ‘Continuous Residence’

Paragraph 276A of the Immigration Rules states that ‘continuous residence’ for the purposes of paragraphs 276B to 276D and 276ADE and 399A is:

(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:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or

(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; or

(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

If the applicant already had existing leave to enter or remain in the UK, then any time spent away from the UK is not counted as breaking continuous residence, according to the Long Residence Guidance:

          “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.”

R (Mungur) v Secretary of State for the Home Department [2021] EWCA Civ 1076

The facts of the case are as follows:

Mr Mungur came to the UK in April 2001 on a visit visa valid until September 2001; he left the UK prior to the expiry of his visa to make a new student visa application from outside of the UK. He re-entered the UK as a student in October 2001.

When Mr Mungur applied for indefinite leave to remain in 2019, on the basis of ten years’ continuous lawful residence from April 2001 to July 2011, he was was refused on the basis that the Home Office determined that Mr Mungur’s ten years began when he entered on his student visa in October 2001. 

Mr Mungur argued that when he left the United Kingdom on 1 September 2001, there was a reasonable expectation that he would lawfully be able to return,  and therefore, his absence between 1 September and 5 October 2001 did not break the period of continuous residence which should be taken as starting on 16 April 2001.

The Home Office argued that Mr Mungur could have had no reasonable expectation of being able to return when he left on 1 September 2001. The Home Office submitted that

 “the temporary nature of the residence as a visitor means that it falls to be excluded under Paragraph 276A(a)(iii) of the Immigration Rules.” 

The Home Office’s argument was dismissed for the following reasons:

• All visas short of ILR are temporary, and require the person to leave the UK on their expiry
• The Home Office argued a policy consideration that the rules cannot have intended residence under a visitor’s visa counted towards their continuous residence for the purposes of obtaining ILR; also, a visitor’s expectation of being able to return to the UK with different forms of clearance cannot be considered reasonable; the court in this case determined that there was no such sign of that policy consideration in the Immigration Rules.
• The Home Office attempted to convince the court to “divine” the meaning of the rules from supposed policy considerations instead of the direct meaning of the Rules
• Paragraph 276A(a)(iii) does not concern itself with the nature of any previous lawful residence, but rather with the person’s expectation for the future; the court determined that having prior clearance as a visitor does not affect the reasonableness (or otherwise) of their expectation that they will satisfy criteria for other forms of visas.

The Home Office’s argument that their interpretation of Paragraph 267A(a)(iii) was correct on the grounds of “otherwise it is of no effect”. However, this argument was also dismissed by the court.

The core question was whether Mr Mungur had reasonable expectations at the time of his departing the UK, that he would be lawfully able to return; the court found that the answer does not depend on the nature of Mr Mungur’s previous residence, but rather, where he had a reasonable expectation of being granted leave to remain. As a result of this, the court found that Mr Mungur’s expectations of being granted leave to remain was reasonable.

Basically what this means in practice is that, for those applicant’s seeking to prove that they have been in the UK for 10 years legally, with the aim of obtaining indefinite leave to remain, time spent in the UK as a visitor can count towards that 10 year calculation.

This can make the difference between proving 10 years legal residence or missing the opportunity to obtain indefinite leave to remain.

If you think you might be eligible to apply for ILR after 10 years legal residence in the UK, contact us. We specialise in getting the most complicated borderline applications across the threshold