The Strict Application Of The Residency Requirement

In recent news, approximately 250 academics have contacted the Home Office in protest against the refusal issued to academic, Asiya Islam. Ms Asiya Islam was recently refused her Indefinite Leave to Remain application, due to excess absences – a strict application of the residency requirement.

Indefinite Leave to Remain based on long residence

The standard route for an Indefinite Leave to Remain application is made after 5 years of residency in the UK. However, this option is only available to certain visa routes. In the cases of the visa routes that do not offer this option, applicants who have been residing in the UK for 10 years or more can apply for Indefinite Leave to Remain on the basis of their long residence.

The requirements are the same but based on 10 years of evidence. Namely, applicants must prove the following:

  • The applicant must have at least 10 years continuous lawful residence in the UK
  • There must be no reason why granting leave is against the public good
  • The applicant must meet the knowledge of the English language requirement
  • The applicant must meet the knowledge of the Life in the UK requirement
  • The applicant must not fall for refusal under the general grounds for refusal
  • The applicant must not be in breach of immigration laws

In providing their 10 years of continuous lawful residence the Applicant must prove the following:

  • The Applicant must provide proof of the visas they have been relying on
  • The Applicant must not have been absent for more than 540 days during the 10-year qualifying period
  • The Applicant must not have been absent from the UK for a period of more than 6 months at any one time
  • The Applicant must not have been absent for a total of 18 months outside the UK throughout the whole 10-year period.

The Applicant in question, Ms Asiya Islam, is an academic in the Cambridge sociology department. She has been residing in the UK for more than 10 years, on a combination of different student visas. She recently completed a PhD at Cambridge University, during which she had spent a year in India completing field research for the purpose of her PhD.

In his spring statement, Chancellor Philip Hammond stated that from June 2019: “overseas research activity will also count as residence in the UK for the purpose of applying for settlement, meaning researchers will no longer be unfairly penalised for time spent overseas conducting vital fieldwork”.

It appears that not only was the residency rule applied is a very strict manner, but that this promise has not been upheld.

This is not the only case where a similar situation has occurred, and Ms Islam stated the following: “by rejecting my and other academics’ applications for leave to remain on the basis of their days out of the country conducting crucial fieldwork, the Home Office is signalling that global researchers are not welcome in the country”. Many academics and applicants have since been deterred from submitting a similar application, and it is negatively deterring international academics from entering the UK.

Despite having spent all of her adult life in the UK, Ms Islam will now be required to leave the UK as soon as her current visa expires; unless she submits and appeal.