Lawful presence in the United Kingdom or Islands

Meanings

Below   “UK” includes the Channel Islands and the Isle of Man

“presence” means physical presence (excludes presence at an airport or seaport before passing through immigration control)

“lawful presence” means presence not in violation of UK immigration law

“leave” means permission

“leave to enter” can be treated as the same as “leave to remain”

When is presence in the UK lawful?

Roughly speaking, since 2001, the presence in the UK of a person “P” will have been lawful only if:

1. P was a British citizen (evidenced by a British passport)
2. P had right of abode in the UK (evidenced by a Certificate of Entitlement in passport)
3. P had been granted indefinite leave to remain (“ILR”) and had not since been continuously absent from the UK for 2 years or more
4. P had been granted indefinite leave to enter, entered the UK had not since been continuously absent from the UK for 2 years or more
5. P had been granted limited leave to remain (visa) and it had not expired
6. P had leave to remain (a visa) that expired and before it expired an application for an extension was made, and a decision on the application had not yet been made
7. P had leave to remain (a visa) that expired and within the time allowed under the Immigration Rules an application for an extension was made, and a decision on the application had yet not been made
8. In relation to a time from July 2006 to June 2021, P was a citizen of an EEA member state or Switzerland who had moved to the UK before 1 January 2021 and
   1. had been in the UK or less than 3 months since the last entry
   2. was a “qualified person” through a qualifying activity, such as employment or self-employment
   3. was studying or a person of independent means (financially self-sufficient) and had comprehensive sickness insurance
   4. was a dependent of a person with a right to reside in certain circumstances (complex criteria apply)
   5. had acquired a permanent right to reside in the UK, normally evidenced by the grant of an EU permanent residence card and had not been continuously absent from the UK for 2 years or more
9. P was an Irish citizen (other requirements apply where entry into the UK was before 2021 but these are generally ignored)
10. P had an exemption from immigration control through employment by a government, international organization, airline or ship (other requirements apply)

The situation of dependents or family members of EEA nationals can be complicated to determine. If a person was issued an EU permanent residence card by the Home Office, presence in the UK in the 5-year period before the issue date will usually be assumed to have been lawful. 

A person who entered the UK via immigration control and was not subject to any conditions at entry may have acquired indefinite leave to remain at entry.  

The descriptions above are simplified and approximate. An immigration practitioner should assess your history before your application is submitted.