Long Residence and 2023 changes to Immigration Bail

[Nightshade]

Hello,

I've recently applied for SET(LR) and the post 2016 rule of continuous residency are a bit confusing to me so I wanted to see what people with more knowledge have to say about it.

Entered UK: 4th Feb 2011 on Tier 4
Tier 4 Immigration impeccable until May 2018, details of which are as below.

Dec 2017: Tier 4 leave expired
Dec 2017: Applied for FLR(FP) in time
Myself and my same sex partner gave our notice of marriage in Nov 2017, and we intended to marry in Dec 2017 and vary the application. We had everything booked but due to difficulties in life and mental health issues we decided to hold off the marriage. We have records of this

10th May 2018: FLR(FP) refused with no in country appeal
12th May 2018: Receipt of refusal (accounting for postal services)
26th May 2018: Date the 14 day period ends for in time application

From this point on I had two options, either leave country and forget about my partner as the only visa I qualified for was FLR(FP) due to not satisfying income requirement and us not being able to marry or live in my home country due to being a same sex couple. Or try to get married in time and make a FLR(FP) after marriage as FLR(FP) can only be made in country.

Our mental health state meant we couldn't focus on marriage before and we couldn't get a marriage date within the 14 day period post refusal, and the earliest date we could get was 30th May. So had no choice but wait and overstay, I have records of this.

Date of Marriage: 30th May

Date of new FLR(FP) application: 4th June

Total overstay post the 14 day period: 7 days

FLR(FP) refused on 23rd August 2018 with option to make an incountry appeal due to insufficient evidence

Receipt of Refusal: 25th August (accounting for post)

6th September: Appeal submitted

Date of Appeal: 28th Oct 2018

Date of decision: 19th Nov 2018

Appeal Decision: Allowed and FLR(FP) decision overturned by the judge



Since then I've been on my FLR(FP) visa and I've made an in time application for SET(LR). I have a good life now, a good job and my partner is in university. It took a long time and even up until Jan 2020 I was still dealing with the aftermath of all this with respect to my mental health as the long period without work made it hard to find a job (I have proof of this too). But we are happy finally. But I can't help but feel that my application will get refused due to those 7 days and there may not be enough provisions to apply discretion for my case.

I'd appreciate it if anyone with knowledge on this is able to confirm whether or not my case has any chance or did I just waste 2.5K on a lost cause? Cause then I'd have been better served applying for FLR(M), but I thought I should try atleast.

Thank you for taking time to go over my case.

[zimba]

You did not qualify for long residence as you were overstaying since 12th May 2018 until you got a new visa. This means you had a gap in your lawful stay which breaks the continuous residence in the UK. So normally as the rules state you are not eligible. However SET(LR) has appeal rights so if refused, you may appeal and explain why your last FLR application was out of time.

[Nightshade]

You did not qualify for long residence as you were overstaying since 12th May 2018 until you got a new visa. This means you had a gap in your lawful stay which breaks the continuous residence in the UK

I thought that may be the case. Though I hoped that my successful application would mean it disregarded the period from the date of application to the date I was granted the visa and not count it as overstay.

Well this sucks massively. The change from 28 days to 14 days in 2016 was a really harsh change. I guess I'll just wait till my application is refused and apply for FLR(M).

Regarding appeal, the problem is if it's refused on the grounds of break in continuous residency and that break being June 2018 to Dec 2018, then I can't really say much to defend my case. If it was only the 7 days that were between 26th May to 3rd June then that's easier to defend.

[zimba]

When you apply out of time, the date of application has no bearing on the actual period of overstaying

[Nightshade]

When you apply out of time, the date of application has no bearing on the actual period of overstaying

Alright I see, it sucks really when you think about it. Just another one of those really harsh rules that can mess up things for you big.

One thing though, that time period while my 2nd application was pending decision I was granted Immigration bail. I'm not sure if that means anything.

[Nightshade]

Sorry the bail was from the date of refusal of 2nd application, after which I put in an appeal which was granted. So I suppose my period of overstay was from 12th May to 17th August (the day the bail was granted).

I guess I'll do an appeal when it gets rejected and see what the Judge has to say. Though I'm not sure if judges have the power to grant leave outside of the rules based on individual circumstances. (do they?)

And thanks for your help again.

EDIT: I could potentially vary my application to FLR(M) if rejection is guaranteed and Judge doesn't have the power to offer discretion outside rules.

[Nightshade]

So it turns out when my first application was refused on 12th May, I was granted immigration bail.

Then I made a new application on 4th June, which was then refused on 23rd August which then granted me a new immigration bail while I was awaiting my hearing. My leave was eventually granted.

Does that mean anything? I'm not sure if making that new application voided my immigration bail from 12th May? The guidelines on bail does not say anything about a new application ending a current immigration bail but rather that immigration bail ends when a leave to remain is eventually granted, or when the person leaves UK.

I've read online and here on this forum that for purpose of 10 year Long Residency Immigration bail can be counted as lawful residence if a leave to remain was granted. But I'm not sure whether my bail stayed valid throughout or not.

Also as a side note my current FLR(FP) was granted under 276 ADE(1)

[zimba]

Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.

[Nightshade]

Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.

My apologies if I wasn't clear in my previous post.
I was granted an immigration bail with the 12th may refusal letter as well on the same day. And then once again when my 2nd application was refused and pending Tribunal hearing.

Also please understand that I dont mean to pester helpful people here like yourself If I don't get it I don't get it, I have other ways to stay in UK. But just wanted to have some information on this bail situation.

[zimba]

Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.

My apologies if I wasn't clear in my previous post, and please understand that I dont mean to pester helpful people here like yourself

But I was granted an immigration bail with the 12th may refusal letter as well on the same day. And then once again when my 2nd application was refused and pending Tribunal hearing.

My personal view is that the first immigration bail may not count because your first FLR decision was not overturned. You applied again, got a new bail and that one was granted. So only the time spent under the second bail may count hence the gap. I may be wrong but let's see what UKVI says it there is refusal

[Nightshade]

Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.

My apologies if I wasn't clear in my previous post, and please understand that I dont mean to pester helpful people here like yourself

But I was granted an immigration bail with the 12th may refusal letter as well on the same day. And then once again when my 2nd application was refused and pending Tribunal hearing.

My personal view is that the first immigration bail may not count because your first FLR decision was not overturned. Only the time spent under the second bail may count hence the gap.

I thought so too, but the wording on bail guidance and bail section in LR guidelines does not explicitly state whether a bail ends when one makes a new application. Just that the bail ends if the
person is granted leave later or when the person leaves UK.

I was granted that first bail, with no rights to appeal in the UK. So I could not have regularised that first application anyway.

I guess we'll see. In a situation like this I'll take a non explicit rule open for debate over not having it in the first place. Hah

Anyways thanks for you help.

[Nightshade]

I spoke to my solicitor today on this matter (who then spoke to a Barrister with 10 years of experience) and the gist of it is, nowhere does it say that a bail ends when you make a new application. And the small detail about the 2nd bail document being issued 6 days before the 2nd refusal date hinting that it is likely one continuing bail.

He said that my case is a case where the law is vague as there's no clear guidance on how bail works in this situation, and more importantly that there's no grounds for refusal listedvin black and white for a case like mine. And in such a case the circumstances of the person takes precedence along with any human rights reasons.

He actually recommended that I don't vary my application to FLR(M) and just wait. That even if I get a rejection, the law is leaning towards my side and that it'd be very favourable for me in a Judicial review.

[Nightshade]

Hello,

I have a question regarding the two changes to Long Residence route made in 2023.

According to the changes that took place in April 2023

7.68 A person who has spent a period of time on immigration bail or as a visitor (or other
temporary permission) who is later granted permission on another basis will still be
able to qualify for long residence settlement, but they will need to wait longer to do
so.

Is the "they will need to wait longer to do so" here simply saying that the time spent in immigration bail will not count towards the 10 year Long Residency period, and they will need to wait an equal amount of time that they spent under bail but do so under a valid leave later to make up for that time?

Or is it saying your residency period counter resets and you start from 0 again and wait 10 more years?

Please bear in mind I am simply concerned about immigration bail, not seasonal worker, visitor etc. I believe there were further changes made to 7.1 in October 2023. However, it is still unclear to me if it's just saying that the period under bail will not add up to the 10 years for Long Residence or whether it's saying the entire counter will reset.

[zimba]

As you can see above from the discussion we had in 2021, you may have break in your continuous residence

[Nightshade]

As you can see above from the discussion we had in 2021, you may have break in your continuous residence

Hi, so back in 2021 I actually did not have a break the case worker simply did not consider the start of my immigration bail into account while calculating the days (they calculated from the date of variation of bail in Aug 2018 rather than issuance of bail in May 2018). I have confirmed this much from multiple lawyers by now and that if I was given appeal rights or made another application soon afterward I would have received ILR, but I did not have the money to make another application until after April 2023 changes. The changes in 2023 further confirm that my application in 2021 would have been successful but unfortunately not only did the case worker refuse it but also did not give me appeal rights despite it being a SET (LR) application which is considered a human rights application.

The issue currently is, that after 2023 changes we know that time spent is bail does not count towards the period and while Long Residency Guideline does say that it breaks continuous residency, the wording in HC 1160 suggests it's more of a pause instead since it says people who had bail can simply apply later, which certainly would also fall in line with the judgment in the Afzal case. So it is less clear whether it is going to be disregarded or not given that the wording in HC 1160 seems contradictory to the wording in Long Residency Guidelines.

Additionally, as Vinny had mentioned in this post here:
indefinite-leave-to-remain/ilr-10-year- ... l#p2128645

The "has had" in 276B(i)(b) becomes untenable because at the point of my application in 2021 I had already achieved the criteria. But I no longer do if the bail breaks residency, even though Long Residence guidelines state that once you achieve the criteria there's no time limit on when you can make the application.



It just seems like a hot mess to me to be honest.

[Nightshade]

Hi,

I received a decision today and I was granted ILR.

The case I made was that Home Office made an error in 2021 in my decision, didn't give me any right to appeal despite it being a human rights application. And additionally, I mentioned that the rules regarding immigration bail is unclear since the statement of change made note that time spent under immigration bail should not count, much like time spent under any temporary permit. But unlike other temporary permits, the SET(LR) guidelines states that immigration bail will break continuous residency and restart timer.

I argued that there was no mention of such a thing in the court of appeals and stated Vinny's reasoning mentioned here:
indefinite-leave-to-remain/ilr-10-year- ... l#p2128645

Lastly, I said that I do not expect the rules to be changed for my case alone as I understand that the caseworker does not have the power to do so, but given the above, and the fact that I was under an FLR (FP) visa due to exceptional circumstances I request for ILR to be granted under discretion and pointed out that there is provision for such a thing when there are exceptional circumstances.

I do not know what exact grounds they granted me the ILR under as the email makes no mention of anything beyond the fact that I was granted the ILR. But it seems a combination of all the above seem to have done the trick.

I am so happy as the nightmare is finally over !!

[zimba]

That is great news, however just so that this topic does not become a hot topic of discussion for other applicants, I believe you applied for your application in 2021 before the major rule changes introduced in 2023 and 2024. You are correct to note that the rules that apply to any application are the rules which were in place when the application was submitted.

[Nightshade]

That is great news, however just so that this topic does not become a hot topic of discussion for other applicants, I believe you applied for your application in 2021 before the major rule changes introduced in 2023 and 2024. You are correct to note that the rules that apply to any application are the rules which were in place when the application was submitted.

Actually this is a brand new application that was applied on April 11 2024, rules regarding immigration bail had already changed by that time. Which I mentioned in my new topic that I had created before you had it merged to this old one.

The ILR application from 2021 was refused and I was granted an FLR(FP) for 2.5 years instead due to my circumstances, with no grounds for appeal. So I had no choice but to accept it and pay an IHS fee, that leave expired in April this year, which is when I made the new ILR application with the arguments I stated above.

[zimba]

You did not mention above that you applied in 2024 (??) but the new rule changes do not allow you to rely on historical 10 years anymore (so the discussion about the changes in 2023 is now not relevant ). The 10 years are calculated from the most beneficial date to the applicant and backwards: Applicants can benefit from the date of the ILR decision

It seems the UKVI was of the view that the immigration bail issue did not break continuous residence for you and so that means you qualified without any issues

[Nightshade]

You did not mention above that you applied in 2024 (??) but the new rule changes do not allow you to rely on historical 10 years anymore (so the discussion about the changes in 2023 is now not relevant ). The 10 years are calculated from the most beneficial date to the applicant and backwards: Applicants can benefit from the date of the ILR decision

It seems the UKVI was of the view that the immigration bail issue did not break continuous residence for you and so that means you qualified without any issues

Ah sorry I noticed that I didn't mention it.
And yea, it seems UKVI just excluded the bail time that I spent in 2018, eventhough the SET(LR) guidelines state that bail breaks continuous residency.

I basically came to UK in 2011, I had about 4 months of immigration bail due in 2018 due to an out-of-time application (my only immigration complication). It seems they simply removed those 4 months whilst counting 10 years for me.

[Nightshade]

In 2021 they refused my ILR saying that I didn't qualify as I spent those 4 months without a valid leave (they didn't consider the immigration bail) and granted me 2.5 year FLR FP with no right to appeal.

So in my April 2024 application, I argued that I should've been granted the ILR back then as I provided all the evidence in my application. And that despite what the SET(LR) guideline says time spent on bail should not break continuous residency because the Statement of Changes from April 2023 made no mention of such a thing.

[zimba]

You did not mention above that you applied in 2024 (??) but the new rule changes do not allow you to rely on historical 10 years anymore (so the discussion about the changes in 2023 is now not relevant ). The 10 years are calculated from the most beneficial date to the applicant and backwards: Applicants can benefit from the date of the ILR decision

It seems the UKVI was of the view that the immigration bail issue did not break continuous residence for you and so that means you qualified without any issues

Ah sorry I noticed that I didn't mention it.
And yea, it seems UKVI just excluded the bail time that I spent in 2018, eventhough the SET(LR) guidelines state that bail breaks continuous residency.

I basically came to UK in 2011, I had about 4 months of immigration bail due in 2018 due to an out-of-time application (my only immigration complication). It seems they simply removed those 4 months whilst counting 10 years for me.

Time spent under immigration bail will not break continuity but is not counted as lawful residence under the long residence. Given that you have been resident since 2011, they simply excluded that period and you still managed to qualify as you ended up having 10 years?

[Nightshade]

You did not mention above that you applied in 2024 (??) but the new rule changes do not allow you to rely on historical 10 years anymore (so the discussion about the changes in 2023 is now not relevant ). The 10 years are calculated from the most beneficial date to the applicant and backwards: Applicants can benefit from the date of the ILR decision

It seems the UKVI was of the view that the immigration bail issue did not break continuous residence for you and so that means you qualified without any issues

Ah sorry I noticed that I didn't mention it.
And yea, it seems UKVI just excluded the bail time that I spent in 2018, eventhough the SET(LR) guidelines state that bail breaks continuous residency.

I basically came to UK in 2011, I had about 4 months of immigration bail due in 2018 due to an out-of-time application (my only immigration complication). It seems they simply removed those 4 months whilst counting 10 years for me.

Time spent under immigration bail will not break continuity but is not counted as lawful residence under the long residence. Given that you have been resident since 2011, they simply excluded that period and you still managed to qualify as you ended up having 10 years?

The thing is, this may seem like so now that I've received it but this was extremely unclear and I've seen advisors here say otherwise as well. There was an update made to Long Residence Guideline today:

"Updated to clarify the transitional arrangements for long residence applicants relating to permissible absences and continuous residence."

I fully believe this was specifically due to my case because I specifically argued that this wording was inconsistent with the changes in HC1160. This was the wording for the SET (LR) guidelines for transitional arrangements before:

“Any periods of time with temporary admission, temporary release or immigration bail are
not ‘lawful residence’ for the purposes of long residence and will break continuous
residence.”

The wording as of today:

"Any periods of time with permission in any of the following routes, are not counted in
the qualifying period for the purposes of long residence and will break continuous
residence for the purposes of the qualifying period for long residence:
any category of visitor granted under ‘Appendix V: Visitor’ of the Immigration
Rules
• short-term student granted under ‘Appendix Short-term Student’ of the
Immigration Rules
Published for Home Office staff on 08 July 2024
Page 8 of 17
• seasonal worker granted under ‘Appendix Temporary work – Seasonal Worker’
of the Immigration Rules "

They removed the bit about bail breaking continuous residence today, my decision was granted today and my argument was that bail should not break continuous residency, only that the time spent under bail should be discounted.

Infact I remember my lawyer specifically saying that the guidelines say bail breaks continuous residency according to the new guidelines.

[Nightshade]

This bit is still in, but the bit about bail not being "lawful residence" has been removed

The following periods will break continuous residence:
• immigration bail, temporary admission, and temporary release

[zimba]

Well it says:

The following periods will break continuous residence:

•Immigration bail, temporary admission, and temporary release
•permission as a Visitor, Short-term Student (English language) or Seasonal Worker (or any of their predecessor routes)
•overstaying which is not disregarded

Of course if it breaks the continuous residence then it is not considered lawful residence at all.