Background
Mr L first arrived in the UK on 09/09/2012 on a Tier 4 (General) Student visa.
Upon completing 10 years residence in the UK, Mr L approached us to assist him with submitting his application for settlement on the basis of his 10 years continuous lawful residence, under paragraph paragraph 276B of the Immigration Rules.
We fully assessed the Mr L’s immigration history and thereafter submitted his settlement application under the super priority service.
The Home Office caseworker later contacted us, notifying us that Mr L had a short gap in his residence. Mr L was unaware of this gap as he was of the view that at the time, his employer had submitted an in-time application on his behalf.
How we helped
Having researched this further, we understood that the short gap in Mr L’s residence fell in line with Paragraph 39E of the Immigration Rules (as confirmed in the Court of Appeal delivered judgment in the case of R (on the application of Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909). This meant that whilst paragraph 276B of the Immigration Rules requires the Secretary of State to ignore what would otherwise be gaps in lawful residence such that the clock assessing continuous residence need not start again, it does not mean that the period should positively count as a period of lawful residence.
We advised our client that the short gap in his residence which fell within Paragraph 39E cannot count towards the assessment of ten years for the purpose of a long residence application for Indefinite Leave to remain under paragraph 276B. We advised Mr L that the best option is to wait a few more days and to ask the Home Office to consider his application after such period has passed and he had accrued the relevant period of 10 years lawful and continuous residence in the UK. Mr L agreed with this proposition and we notified the Home Office of the same.
Result
Mr L’s application for settlement was approved a few days later, once he had accrued 10 years continuous lawful residence in the UK, to fill the short gap in his residence.
