Is there discretion to grant indefinite leave to remain where some of the requirements of the rules are not met?
This is a particularly burning question for people planning to apply for indefinite leave to remain on the basis of long residence having lived lawfully in the UK for 10 years. Ten years is a long time and where you almost meet the requirements of the rules, but for some small and insignificant technicality, it feels only fair that the rules should be flexible.
Unfortunately, there is very little discretion left to the caseworkers under the Immigration Rules. The idea to remove or restrict discretion in an attempt to make the rules more definitive and the outcome of applications more predictable was part of the rehaul of the rules which started in 2012. Whether lack of discretion made the rules fairer is another question.
Work-related immigration routes leading to settlement do not offer the right of appeal against refusals, including refusals of applications for indefinite leave to remain. There is no discretion left to the caseworker – if the requirements of the rules are met, ILR should be granted, if the requirements are not met the application has to be refused. Administrative review is the procedure reserved for correction of administrative errors of the decision-maker and technical glitches. It is not related to exercise of discretion or flexibility in applying the rules. And it doesn't allow the applicant to correct their own errors in the application process. For example, if you didn't know that you have to take Life in the UK test when applying for indefinite leave to remain, you won't be able to benefit from administrative review having taken the test. But you may benefit from admin review, if you took the test but failed to include evidence and the decision-maker didn't prompt you before refusing the application.
Applications for indefinite leave to remain on the grounds of long residence are different in that they bear the right of appeal against refusal. An appeal goes to an immigration judge who is independent of the Home Office. The case is considered in court, called First Tier Tribunal, Immigration and Asylum chamber. The judge may set aside the decision of the Home Office but does not have the power to substitute the decision with their own.
An immigration judge cannot grant you indefinite leave to remain, but can rule that it is unfair to request that you leave the country having established private life in the UK. It is only in exceptional circumstances that an immigration judge would assess your right to remain more generously than it is prescribed by the immigration rules, although the judge may take into account factors which were not considered, or were not adequately considered by the Home Office, such as a combination of private and family life.
In any event, the best outcome of appeal is a further permission to stay in the UK but not indefinite leave to remain.
This brings us back to the question of discretion – does the caseworker have the power to bend the rules, even slightly, in your favour?
First, what the rules say about indefinite leave to remain on the basis of long residence.
The rule is seemingly uncomplicated. You have to spend in the UK a qualifying period of 10 years. During the entire period continuity of your residence should not be broken and should be made up of permitted types of leave. You should meet the English language requirement and the Life in the UK requirement.
The rules make it clear that leave to remain under the Ukraine scheme does not count, nor do periods of stay in the UK as a visitor or a short-term student.
Appendix Continuous Residence explains how continuous residence is calculated, where it can be assessed cumulatively, and where absences from the UK do not interrupt continuity of residence.
So what happens if you are a few days short of reaching 10 years before expiry of your current leave?
The caseworker guidance says that applications made early will fall for refusal if considered more than 28 days before the requisite period of 10 years is reached. This is an important concession which means that it is the date when the application is under consideration not the date of application that is decisive to this end.
It is very important that you submit your application before the expiry date of your visa. Delaying the application by overstaying is one of the worst strategies you may come up with. But once the application is submitted, you may consider slightly delaying the biometric appointment – you have 35 days to book your biometrics and the Home Office will not start considering your application before you have attended the appointment.
This soft interpretation of the rules is authorised by the current guidance which can change at any time, but for as long as the guidance is valid this appears to be the only area where long residence rules can be flexible.