The case of Stoly Jankovic recently attracted a lot of press attention and a great deal of sympathy. He had apparently been living and working in the UK since 1991, for a period of 26 years. How can it be right that he be detained for removal after all that time? Well, the rules on acquiring lawful status after long residence are very tightly drawn and it sounds as if he has fallen foul of them.
I have been meaning to write a post on the long residence rules for as long as I can remember, and this seems like a good opportunity.
How did Mr Jankovic find himself in this predicament?
Before going further, it is never safe to assume what you read in the papers about an immigration case is necessarily accurate.
That said, The Guardian reports the background thus:
He blamed his situation on his failure to properly understand and deal with Home Office bureaucracy. “I ended up in this mess because I couldn’t fill out my indefinite leave to remain form properly,” he said. It is understood he applied for asylum when he arrived in the UK and was refused, and that his leave to remain expired in 1999, but he has since been working and paying taxes without problem.
It is also reported that Mr Jankovic has been reporting to the Home Office for 10 years and was detained with no notice. Following (but not necessarily because of) the intervention of his Member of Parliament, Keir Starmer MP, Mr Jankovic was released from detention after a period of 4 days and told that he would not be removed for a period of at least 14 days.
It may be possible that Mr Jankovic claimed asylum and was refused, has not held lawful status since then but nonetheless has missed several opportunities to obtain Indefinite Leave to Remain. For example, he might potentially have qualified under the “Legacy” backlog clearance exercise and might also potentially have qualified under the previous now-abolished 14 year long residence rule. This is guesswork, though.
What is the 10 year rule on long residence?
Paragraph 276B of the Immigration Rules enables a person with 10 continuous and lawful years of residence in the UK to apply for Indefinite Leave to Remain. Not many migrants will qualify for residence in this way because it is unusual to have 10 continous lawful years of residence. And there are complications and qualifications.
What does “continuous” mean in long residence applications?
Paragraph 276B does not stand alone; other nearby paragraphs define some of the words and terms used. Paragraph 276A(a) sets out the definition of “continous” for the purposes of paragraph 276B and the other long residence and private life rules.
(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.
We can see from this paragraph that leaving the UK is broadly permitted, as long as the person:
1. Has leave when he or she leaves;
2. Does not remain outside the UK for more than six months at any one time; and
3. Has leave when he or she returns.
Robert is from the USA. He has leave as a student in the UK valid until 4 October 2014. He departs voluntarily on 6 October 2014, 2 days after the expiry of his leave. He applies for a new student visa from the USA, which is granted, and returns to the UK on 31 October 2014.
Although Robert was not out of the UK for more than six months, he left the UK at a time when he had no leave. This means that the continuity of his residence is broken. If intending to make an application for indefinite leave to remain following 10 years continuous residence in the UK in the future, Robert will only be able to “start the clock” from 31 October 2014.
Any absence of more than six months will break “continuous residence” and so will departing the UK in certain circumstances. Total absences of up to 18 months in aggregate over the 10 years is permitted but any more than that will break continuous residence.
A break in continuous residence will in effect restart the clock, as discussed below.
Are absences from the UK permitted for long residence applications?
It can be seen that absences from the UK of up to 6 months are potentially permitted, as long as the person held leave at the time of departure and return (and it does not need to be the same grant of leave, it can be a different one). However, a departure from the UK can lead to continuous residence being broken in the circumstances set out at subparagraphs (i) to (v).
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