1. Settlement and Continuous Presence
Immigration law allows certain immigrants to apply for settlement after they have spent a specified period of time in the UK. For some, for example migrant workers, it is five years, for some it is 10 years continuous lawful residence and for others it is 14 years lawful and or unlawful residence.
The question is what period of time the UK Border Agency will calculate as continuous presence in the UK for the purpose of application for settlement.
The UK Border Agency guidance to its caseworkers sets out various periods of time when a migrant is out of the UK, which may be treated as periods in the UK. This is significant. Firstly it means that the period of absence from the UK does not break the period of continuous presence. Secondly, these periods of absence count towards the calculation of the total time in the UK.
These periods are:
1. A short holiday which falls within someone’s annual leave entitlement.
2. A short business trip for the purpose of work or business for which the migrant has been permitted to come or stay in the UK.
3. Up to three months from the date of grant of entry clearance to the migrant’s arrival in the UK.
Except for the last of these three examples, the period will ordinarily be treated as a period in the UK only if the migrant continued to have her home in the UK during the period she was out of the UK.
It is important to note that it is a matter of discretion whether these periods will be treated as periods in the UK.
The guidance and Immigration Law suggest that ordinarily they should be treated as periods in the UK. However, it is the role of the applicant and the Immigration lawyer to make representations explaining the particular facts of the case and why discretion should be exercised.
Immigration law also sets out various periods of absence from the UK which may be ignored namely:
1. Absence due to compelling, compassionate circumstances for example where a migrant has to look after a dying relative provided that no one period exceeds three months or not more than six months if there is more than one such period.
2. Absence for the purpose of the migrant’s work or business provided that no one period exceeds three months or if there is more than one such period together these total no more than six months.
Again it is a matter of discretion whether these periods are ignored and an immigration lawyer should be able to assist an applicant in arguing why this period should be ignored. Immigration law and the guidance suggest that ordinarily these periods will not be ignored and therefore it is important for the immigration lawyer to explain the particular facts of her client’s case. Please note that the UK Border Agency generally has discretion to waive requirements under the Rules and these could include any circumstances not covered by the Immigration law or by the guidance to the Home Office case workers.
3. Settlement and unspent Convictions
From 6th April 2011 applicants for settlement have to satisfy a new requirement that they have no unspent convictions. Therefore the practical way for an immigration lawyer to assist is to make in such a case, an application for a further period of limited leave to remain. If a client has unspent convictions she should ordinarily be able to apply for a period of limited leave to remain. If her conviction becomes spent she may then be able to apply for settlement.
The new requirement acts to delay the point at which someone can apply for settlement and therefore for naturalisation as a British citizen to a point at which convictions are spent. For years immigration law has included a general discretion by which an application whether for settlement or a period of leave may be refused because of someone’s character and this has not been changed and therefore the discretion to refuse remains. Those with convictions are strongly advised to seek the assistance of an immigration lawyer to assist them in drafting the application mitigating against the offence and promoting the chances of success of such a case.