Long residence: un-settling for students

When I wrote about the plans to introduce a new post-study work visa last month, I made a passing reference to the difficulties some students will face in applying for indefinite leave to remain on the basis of ten years’ continuous long residence in the UK due to their absences from the UK.

Services
Immigration
Type
Update

This was illustrated by a recent Guardian article on the case of a Cambridge Academic who had seen her application for indefinite leave to remain refused as a result of the time she had spent outside of the UK undertaking research for her PhD.

Ultimately the problem that all international students face is that Tier 4 is not an immigration category that leads to settlement in the UK. The Home Office would likely argue that an international student should have no expectation of settling in the UK when they arrive, without first progressing onto another immigration route which does lead to settlement (a Tier 2 worker, for example).

In fact, it is a slightly simpler process for a student to switch from Tier 4 to Tier 2 following the completion of their course than it is for those recruited from overseas, although the student would only have around four months in which to find the job. Once sponsored under Tier 2, the now former student should be eligible for settlement after five years.

For those long term academics that do not move from Tier 4 to another immigration route, the only option for settlement would be the ten year long residence route.

First they would need to navigate not only the academic progression requirements (which basically require each different period of study under Tier 4 to be at a higher level than the last) but also the time limits imposed on each level of study in order to accrue ten years of lawful residence.

For each Tier 4 application, the applicant will normally be required to attend an interview in order to satisfy the Entry Clearance Officer that they are a genuine student. This process should not be undertaken lightly either. I have recently assisted a potential PhD student overturn a rejection which was rather bafflingly made on the basis that she was leaving employment to undertake this course and had no guaranteed job to return to, even though her PhD course was for four years. Even trainee solicitors aren’t hired four years in advance.  

Even if the student has been able to accumulate ten years in the UK under a variety of different visas, the Immigration Rules requires this to be a ‘continuous period’. This continuous residence would have been broken if the student spent a period of six months or more outside of the UK at any one time, or even if they spent a total of 18 months outside the UK throughout the ten year period.

Given that many students return home or travel during the long university vacation periods, students looking to benefit from this proposed route may find themselves ineligible when the time comes to potentially apply to settle in the UK.

Unfortunately, the ten year long residence route is not necessarily a guaranteed solution for those long term students who are approaching the end of their latest visa. It, like all immigration routes, needs careful long term preparation for in order to be eligible. If not, then it is likely that the student will need to be prepared for an appeal based not on the Immigration Rules, but on their private and family life in the UK. An approach which we have had a number of successes with recently.

If you would like to discuss any of the issues raised in this article, please contact Matthew James, a Solicitor in the Immigration Department.


All content on this page is correct as of November 14, 2019.