ILR(Long Residence) eligibility concerning Exceptional Assurance

[TPTPTPTP]

Hi,

I am recently applying for ILR under the Long Residence route, however, I am concerned about my case as I obtained Exceptional Assurance (EA) in 2021. Here is my timeline:

On 15/09/2013, I entered the UK for the first time, and then I kept holding the Tier 4 General visas, no short-term student visa at all as they were all for the main program and no gaps between each visa, until late 2021. My last visa before obtaining the EA expired on 08/11/2021, however, I received the EA from UKVI on 25/10/2021 and was valid until 17/01/2022. On 15/12/2021, I submitted a Skilled Worker visa application and it was successful, the SWV was valid from 14/01/2022 until now. I did not stay outside the UK for more than 184 days at a time or 548 days in total.

My concern is that some news has suggested that the Home Office might treat the EA as either protected unlawful residence or breaking the continuous residence for long residence, all the political ambiguity around. Could anyone offer any advice on whether I am still eligible to apply for ILR under the Long Residence route, please?

But in my case, if I interpret my time spent during the EA period as I left the UK with a valid visa (due to expire on 08/11/2021) on 25/10/2021, and I got a visa and returned to the UK after 82 days (i.e. 14/01/2022), does it still break the continuous residence?

After all, it is up to the Home Office to decide whether my application is successful or not, but it would be appreciated if anyone could offer any advice, many thanks.

[zimba]

For now, there is nothing from the home office that suggests the 'exceptional assurance' will be considered lawful residence. Unless this changes, the default view will be that the period of 'exceptional assurance' in which no leave was granted may not count as lawful residence for the purposes of the immigration rules.

See: indefinite-leave-to-remain/query-about- ... l#p2140150

[TPTPTPTP]

Hi zimba, thanks for your reply.

It makes sense to me if the Home Office sees it not as "lawful residence". However, my concern is whether it breaks "continuous residence". If it is not lawful residence but does not break continuous residence, then simply deducting the amount of time from the past 10 years can still make my ILR application successful. This might be the ongoing debate inside the Home Office, as far as I know, all the ILR applications with EA involved, no matter how long the EA was, are currently on hold. Thank you Home Office.

[zimba]

If it is not lawful residence, then yes it breaks your lawful continuous residence

[TPTPTPTP]

An update to the Immigration Rules was published earlier today:

https://assets.publishing.service.gov.u ... sible_.pdf

Looking at 1.3:

After paragraph 39E(4), insert:
“(5) the period of overstaying:
(a) is between 1 September 2020 and 28 February 2023; and
(b) is covered by an exceptional assurance.
39F. For the purpose of paragraph 39E(5), “exceptional assurance” means a
written notice given to a person by the Home Office stating that they would
not be considered an overstayer for the period specified in the notice.”

The Covid EA period is not seen as overstaying any more.

Looking at LR 11.2:

LR 11.2. The following periods will not count towards the qualifying period for Long
Residence:
(a) time spent on immigration bail, temporary admission or temporary release;
and
(b) any period of overstaying between periods of permission before 24 November
2016 even if a further application was made within 28 days of the expiry of
the previous permission; and
Page 258 of 289

(c) any period of overstaying between periods of permission on or after 24
November 2016 even if paragraph 39E applies to that period of overstaying;
and
(d) any current period of overstaying where paragraph 39E applies.

However, with Section 7.68 in: https://assets.publishing.service.gov.u ... Ready_.pdf

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.

It looks like the EA does not break legal and continuous residence if another form of leave was granted before it expired.

[TPTPTPTP]

I think the explanatory memorandum provides a clearer clarification regarding the overstaying concern:

https://assets.publishing.service.gov.u ... sible_.pdf

5.66 Changes have been made to Part 1 to make provision to disregard overstaying during
the period when a person had an exceptional assurance. From 1 September 2020 to
28 February 2023, individuals who wanted to leave the UK, but were unable to do so
due to Covid travel disruption, were issued with an assurance that overstaying during
the period of the assurance would be disregarded.

[zimba]

This is worse than what you even think. They expanded paragraph 39E to cover the Exceptional Assurance BUT then made ALL disregarded periods of overstaying under paragraph 39E as unlawful for the long residence. This is beneficial to people applying under other routes like the skilled worker route BUT totally changes things for people applying under the long residence. Many people who could apply with the help of paragraph 39E will no longer be able to secure ILR on the basis of long residence under the new rules

You also misunderstood item 7.68.
I repeat again, that EA was not a form of leave or permission to stay in the UK and the fact that is now being merely disregarded under paragraph 39E still does not make it a form of temporary permission or leave to remain. They are simply saying it is ignored/disregarded but they are not saying those people are viewed as having had permission or leave to remain. This is again beneficial to other routes but they made it clear that disregarded periods under paragraph 39E will no longer count for the long residence

[TPTPTPTP]

There are still some questions out there. Does the new rule apply to people who have already made their ILR applications under the long residence route? In the changes, it uses the term "qualifying period", but you refer to those Paragraph 39E periods as "unlawful", however, I am not sure whether these 39E periods break the continuous residence, it's not explicitly stated in today's changes.

[zimba]

There are still some questions out there. Does the new rule apply to people who have already made their ILR applications under the long residence route? In the changes, it uses the term "qualifying period", but you refer to those Paragraph 39E periods as "unlawful", however, I am not sure whether these 39E periods break the continuous residence, it's not explicitly stated in today's changes.

It will not affect people who already applied as the rules in place will apply to them. The changes announced will come into force on 4 April. The qualifying period must be spent lawfully under the rules. Gaps in lawful residence break your continuous residence unless such gaps are disregarded. Any period without valid permission under provision 39E no longer counts, so they break the lawful residence for the purpose of the long residence (unlike other routes)

Read the current guide: https://assets.publishing.service.gov.u ... idence.pdf

[TPTPTPTP]

I am getting confused, as looking at Appendix Continuous Residence, Item CR 4.1(d)(i) and CR 4.3:

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

(d) the applicant does not, or did not have permission, unless:
(i) the applicant made a successful application for permission to stay where paragraph 39E of Part 1 of these rules applied; or

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.

And Item CR 5.1 and 5.2:

CR 5.1. The applicant will not be regarded as lawfully present in the UK under CR 1.1:
(a) during any period of imprisonment or detention under CR 4.1.(a); or
(b) during any period where they required permission and did not have it, unless paragraph 39E applies or, before 24 November 2016 the applicant made a successful application for permission (either in or outside the UK) within 28 days of the date their previous permission expired.
CR 5.2. Where CR 4.1. applies the applicant will not be regarded as lawfully resident for any period during which those circumstances apply (and the exceptions in CR 2.3. to CR 2.5. will not apply).

It's getting interesting that if the caseworkers use the new Rules (i.e. new Paragraph 39E), the Covid EA period will be disregarded as unlawful gaps, they will simply not count this period into the qualifying period, but the lawful and continuous residence is not broken (I might be wrong).

I know it is bad news for future ILR applicants with the Long Residence route as they have to lawfully stay in the UK for a potentially much longer period, however, using my application as an example, I assume it is kind of good news, again don't get me wrong.

[zimba]

Appendix Continuous Residence does NOT apply to the long residence route at all. This is literally clear on top of the Appendix Continuous Residence page. The long residence rules are under paragraphs 276A and 276B .

Any period that you did NOT have valid leave is a gap that breaks your continuous residence unless disregarded. If not disregarded, then it is a gap and breaks your continuous residence.

Your case might still be problematic as the UKVI can argue you did not have any leave during your EA. So I'd suggest to wait and see

[TPTPTPTP]

Changes to Appendix Continuous Residence

APP CR2. In the introduction, for “and Appendix Hong Kong National
(Overseas).”, substitute:
“, Appendix Hong Kong National (Overseas), and Appendix Long
Residence.”.

I initially missed the introduction part, but, interestingly, it looks like they are adding Lond Residence to Appendix Continuous Residence.

[zimba]

Even if they do that they are excluding paragraph 39E so it still has the same effect. The rules must be read as a whole not in parts or separately

[TPTPTPTP]

Appendix Continuous Residence does NOT apply to the long residence route at all. This is literally clear on top of the Appendix Continuous Residence page. The long residence rules are under paragraphs 276A and 276B .

Any period that you did NOT have valid leave is a gap that breaks your continuous residence unless disregarded. If not disregarded, then it is a gap and breaks your continuous residence.

Your case might still be problematic as the UKVI can argue you did not have any leave during your EA. So I'd suggest to wait and see

They've deleted the Long Residence sections from Part 7 and replaced them with Appendix Long Residence.

Changes to Part 7
7.1. Delete paragraph 276A.
7.2. Delete paragraph 276A03.
7.3. Delete paragraph 276A04.
7.4. Delete paragraph 276A1.
7.5. Delete paragraph 276A2.
7.6. Delete paragraph 276A3.
7.7. Delete paragraph 276A4.
7.8. Delete paragraph 276B.
7.9. Delete paragraph 276C.
7.10. Delete paragraph 276D.

and:

Insertion of new Appendix Long Residence
APP LR1. After Appendix Adult Dependent Relative, insert:

[Carrie9608]

I am getting confused, as looking at Appendix Continuous Residence, Item CR 4.1(d)(i) and CR 4.3:

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

(d) the applicant does not, or did not have permission, unless:
(i) the applicant made a successful application for permission to stay where paragraph 39E of Part 1 of these rules applied; or

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.

And Item CR 5.1 and 5.2:

CR 5.1. The applicant will not be regarded as lawfully present in the UK under CR 1.1:
(a) during any period of imprisonment or detention under CR 4.1.(a); or
(b) during any period where they required permission and did not have it, unless paragraph 39E applies or, before 24 November 2016 the applicant made a successful application for permission (either in or outside the UK) within 28 days of the date their previous permission expired.
CR 5.2. Where CR 4.1. applies the applicant will not be regarded as lawfully resident for any period during which those circumstances apply (and the exceptions in CR 2.3. to CR 2.5. will not apply).

It's getting interesting that if the caseworkers use the new Rules (i.e. new Paragraph 39E), the Covid EA period will be disregarded as unlawful gaps, they will simply not count this period into the qualifying period, but the lawful and continuous residence is not broken (I might be wrong).

I know it is bad news for future ILR applicants with the Long Residence route as they have to lawfully stay in the UK for a potentially much longer period, however, using my application as an example, I assume it is kind of good news, again don't get me wrong.

-----------------

I agree with you. The change on 14th April kinda confirmed the continuous of the long residency but the time spent on EA would not be counted towards to lawful 10 years stay. Applicants will need to stay longer to make up to the time spent on EA for whatever length.

However, I have seen in many places whenever EA were addressed they also always mentioning and defining the period of AFTER 1 September, 2020. but put a restriction condition on the time between 24th Jan,2020 to 31 August 2020. Does that because that period was considered as an extension to your previous leave? so technically, time between 24th Jan to 31st August is visa extension but not Exceptional Assurance?

[TPTPTPTP]

It is my understanding of the recent changes, although I concede I may be mistaken. Given that the updated Paragraph 39E is slated to come into effect on the 4th of April, 10 days prior to the enactment of the new Appendix on Long Residence, it is anticipated that the UKVI will use this interval to adjudicate on applications for ILR that are impacted by the Exceptional Assurance.

If you have a look at the current Paragraph 39E:

39E. This paragraph applies where:
...
(3) the period of overstaying was between 24 January and 31 August 2020; or
...

It is clear that this provision will not be removed from the forthcoming rules. My presumption is that this decision stems from the introduction of the EA in August 2020 (apologies, I was unable to locate the specific EA documentation detailing updates on the GOV.UK website), while no provisions were made to address the disarray in immigration matters from January to August 2020 due to the pandemic. Notably, the new appendix on Continuous Residence will recognise the period from the 1st to the 31st of August 2020 as lawful residence, thereby allowing these 31 days to contribute towards the qualifying period for ILR applications, whilst the span from the 1st of January to the 31st of July 2020 will not be considered. However, as Zimba correctly points out, the EA does not extend previous leave, meaning that individuals without leave to remain during that timeframe were technically overstaying, yet this will be overlooked courtesy of the revised Paragraph 39E. Moreover, under the new regulations, time spent under the EA will not contribute towards the qualifying period.

[zimba]

Just to add that any migrant in the UK whose visa expired between 24 January 2020 and 31 July 2020 was able to request an extension if they were unable to return to their home country due to a COVID-19 lockdown. This was not the same as the EA introduced later on when things eased out

[Carrie9608]

Just to add that any migrant in the UK whose visa expired between 24 January 2020 and 31 July 2020 was able to request an extension if they were unable to return to their home country due to a COVID-19 lockdown. This was not the same as the EA introduced later on when things eased out

----------------

Thanks Zimba, that's exactly my case.

My visa expired on 23rd March 2020, extension. I filed my new visa application on 25th June. Within that grace period. The letter from UKVI in May 2020, informed me they have "extended my leave'. So I assume this is a visa extension to my current status, but not a EA.

If it is a extension, then this period of time should be counted to my 10 years residency and certainly doesn't break my continuous of residency. Am I wrong?

[Carrie9608]

It is my understanding of the recent changes, although I concede I may be mistaken. Given that the updated Paragraph 39E is slated to come into effect on the 4th of April, 10 days prior to the enactment of the new Appendix on Long Residence, it is anticipated that the UKVI will use this interval to adjudicate on applications for ILR that are impacted by the Exceptional Assurance.

If you have a look at the current Paragraph 39E:

39E. This paragraph applies where:
...
(3) the period of overstaying was between 24 January and 31 August 2020; or
...

It is clear that this provision will not be removed from the forthcoming rules. My presumption is that this decision stems from the introduction of the EA in August 2020 (apologies, I was unable to locate the specific EA documentation detailing updates on the GOV.UK website), while no provisions were made to address the disarray in immigration matters from January to August 2020 due to the pandemic. Notably, the new appendix on Continuous Residence will recognise the period from the 1st to the 31st of August 2020 as lawful residence, thereby allowing these 31 days to contribute towards the qualifying period for ILR applications, whilst the span from the 1st of January to the 31st of July 2020 will not be considered. However, as Zimba correctly points out, the EA does not extend previous leave, meaning that individuals without leave to remain during that timeframe were technically overstaying, yet this will be overlooked courtesy of the revised Paragraph 39E. Moreover, under the new regulations, time spent under the EA will not contribute towards the qualifying period.

-----------------------

If that's the case, it's really bad news for ILR applicants under 10 years route. crying...

I have consulted several immigration lawyers, they are hesitating in confirming anything regards to this changes. lots of cases were in pending status perviously because there wasn't enough guidances for caseworkers to make a call. I reckon everyone now is waiting for some feedbacks from applicants who file their applications after April to see what happens.

[TPTPTPTP]

In fact, I know of someone who stated that her application for ILR through the long residence route was approved on the 8th of March. She shared a screenshot of the notification email from the Home Office with her name and application reference number redacted, so technically, this has not yet been authenticated. She was granted Exceptional Assurance between January and April 2021 and submitted her ILR application shortly after reaching the 10-year mark since her initial entry into the UK. Therefore, the 4-month period of Exceptional Assurance was considered part of her qualifying period. This is the only case of success I've been made aware of, while numerous others are still awaiting outcomes.

[TPTPTPTP]

If that's the case, it's really bad news for ILR applicants under 10 years route. crying...

I have consulted several immigration lawyers, they are hesitating in confirming anything regards to this changes. lots of cases were in pending status perviously because there wasn't enough guidances for caseworkers to make a call. I reckon everyone now is waiting for some feedbacks from applicants who file their applications after April to see what happens.

-------------------------------------------------------------------------
Well, I just re-compiled a copy of the new Appendix Continuous Residence based on HC590 and the existing Appendix Continuous Residence, as the new version has not been officially published. Since it will apply to the new Appendix Long Residence:

This Appendix applies only to applications under ... Appendix Hong Kong National (Overseas), and Appendix Long Residence.

I think the logic is it considers "continuous residence" first under the "Breaking continuous residence" section, where the new CR 4.1(d)(i) states:

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:
(i) the applicant was granted permission following a successful application where paragraph 39E of these rules applied; or

So, it explicitly states that granting a valid visa after EA will NOT break continuous residence. It then considers lawful presence (the term is not lawful residence), in CR 5.1:

CR 5.1. The applicant will not be regarded as lawfully present in the UK under CR 1.1. (and these periods will not count towards the qualifying period for continuous residence):
...
(d) during any period where they required permission and did not have it unless:
(i) the applicant was in the UK without permission between 1 and 31 August 2020; and
(ii) the applicant had permission immediately before that date, in which case the applicant will be treated as lawfully present between 1 and 31 August 2020.

I guess further clarifications will be provided in the Long Residence Caseworker Guidance after the new rules take effect in April, for example how to treat EA, etc. Since EA, as part of the new paragraph 39E, will be disregarded, I think my application would only have a low risk of being rejected.

But your application should not be a problem at all, the UKVI should include your stay in the UK with "visa extension requested by email" and the entire August 2020 as the qualifying period towards your long residence.

[Nightshade]

This is worse than what you even think. They expanded paragraph 39E to cover the Exceptional Assurance BUT then made ALL disregarded periods of overstaying under paragraph 39E as unlawful for the long residence. This is beneficial to people applying under other routes like the skilled worker route BUT totally changes things for people applying under the long residence. Many people who could apply with the help of paragraph 39E will no longer be able to secure ILR on the basis of long residence under the new rules

You also misunderstood item 7.68.
I repeat again, that EA was not a form of leave or permission to stay in the UK and the fact that is now being merely disregarded under paragraph 39E still does not make it a form of temporary permission or leave to remain. They are simply saying it is ignored/disregarded but they are not saying those people are viewed as having had permission or leave to remain. This is again beneficial to other routes but they made it clear that disregarded periods under paragraph 39E will no longer count for the long residence

Are they saying that from 04 April 24 onwards any time spent in 39E will not be counted towards the 10 year residency period. Or are they saying that if someone had 39E in the past then their continuous residency is broken and the timer resets to 0 from that point in past while considering the applications made on or after 04 April 2024.

Cause the latter would make a ton of people ineligible for ILR.

[zimba]

This is worse than what you even think. They expanded paragraph 39E to cover the Exceptional Assurance BUT then made ALL disregarded periods of overstaying under paragraph 39E as unlawful for the long residence. This is beneficial to people applying under other routes like the skilled worker route BUT totally changes things for people applying under the long residence. Many people who could apply with the help of paragraph 39E will no longer be able to secure ILR on the basis of long residence under the new rules

You also misunderstood item 7.68.
I repeat again, that EA was not a form of leave or permission to stay in the UK and the fact that is now being merely disregarded under paragraph 39E still does not make it a form of temporary permission or leave to remain. They are simply saying it is ignored/disregarded but they are not saying those people are viewed as having had permission or leave to remain. This is again beneficial to other routes but they made it clear that disregarded periods under paragraph 39E will no longer count for the long residence

Are they saying that from 04 April 24 onwards any time spent in 39E will not be counted towards the 10 year residency period. Or are they saying that if someone had 39E in the past then their continuous residency is broken and the timer resets to 0 from that point in past while considering the applications made on or after 04 April 2024.

Cause the latter would make a ton of people ineligible for ILR.

It seems they will not count the time spent towards the 10 years

[TPTPTPTP]

It seems they will not count the time spent towards the 10 years

Can I take it as "having EA in the past does not reset the continuous residence but the EA period won't be counted towards the qualifying period"?

[zimba]

It seems they will not count the time spent towards the 10 years

Can I take it as "having EA in the past does not reset the continuous residence but the EA period won't be counted towards the qualifying period"?

It seems to be the case as per the new rules where you need to build up 10 years of lawful residence and some periods (e.g those covered under paragraph 39E) are not included. The breaks in your continuous lawful residence seem to be different