Indefinite Leave to Remain After 5 Years?

indefinite leave to remain after 5 years

Applying for indefinite leave to remain is rarely a straightforward process, given the stringent ILR requirements and since a refused application can cause huge disappointment and will result in a lost application fee.

If you are looking to apply for UK Indefinite Leave to Remain after 5 years, you will need to check you qualify based on the visa you currently hold and whether you meet all other ILR requirements.

 

Visas leading to ILR after 5 years

The following visas offer UK settlement, allowing holders to become eligible for ILR after 5 years of lawful status:

 

Immigration routeQualifying period
Partner or Spouse visaILR after 5 years
Tier 1 visa (Investor, Exceptional Talent & Entrepreneur)ILR after 5 years
Tier 2 (General) visaILR after 5 years
Tier 2 (ICT) visaILR after 5 years ONLY if granted under the rules in place before 6 April 2010
UK Ancestry visaILR after 5 years
Retired Person visaILR after 5 years
Discretionary Leave to RemainILR after 6 years
Long ResidenceILR after 10 years continuous legal residency in the UK
Returning ResidentIf settled in the UK prior to departure and returning to the UK within two years of departure, then may be able to apply immediately on return

 

Other visas offer fast-tracked settlement, allowing holders to apply for ILR after only 2 or 3 years. These include the Tier 1 (Investor) visa and the Tier 1 (Exceptional Talent) and Tier 1 (Entrepreneur) visas, both of which are now closed to new applicants.

Innovator visa holders are eligible to apply for ILR after 3 years in the category, however any previous leave to remain in the UK under the Start Up route cannot count towards to the qualifying 3-year time period.

 

Combining time spent in different visa categories

It may be possible in certain circumstances to rely on time spent in the UK in different visa categories to meet the required ILR qualifying period.

For example, a Tier 2 (General) visa holder migrant could use both their current leave as well as previous leave spent under a Tier 1 visa to make up the 5-year qualifying period.

This does not apply to visa holders under the Tier 1 (Investor), Tier 1 (Entrepreneur) or Innovator route, who must complete the full period solely in that one visa category.

 

Am I eligible to apply for ILR?

Indefinite Leave to Remain grants you the right to live and work in the UK free from immigration restrictions. It also puts you on the pathway to becoming naturalised as a British citizen.

ILR is available to individuals from non-EEA countries who have lawful leave to remain in the UK for the relevant qualifying period in an immigration category that leads to settlement. Eligibility is determined by meeting specific requirements for:

  • Continuous UK residence
  • Absences
  • Knowledge of language and life in the UK

 

Continuous residence

The lawful continuous residence requirement specifies the minimum amount of time that an applicant must spend in employment, or being active in the UK economy, before being eligible to qualify for indefinite leave to remain.

Qualification criteria vary depending on the type of visa status you have held in the UK, with some operating on a points-based system.

You must also have been lawfully resident in the UK throughout this qualifying period. This means that you must not have spent any of your time in the UK without valid leave to enter or remain, or have breached your leave conditions.

 

Absences from the UK 

The continuous residence requirement may be affected by excessive absences from the UK.

To preserve your qualifying period, you must not have been absent from the UK for a total of more than 180 days in any 12 month period during the qualifying period. Where this threshold is breached, the clock will effectively be reset. Only full days are counted, not days spent travelling.

Where the 5-year period started before 11 January 2018, any leave granted prior to that date will be assessed under the old absence rules, which assessed absences in consecutive 12 month periods ending on the date of application.

Where you breach the 180-day rule, and can show that the excessive absences are for serious or compelling reasons, you may be able to request that the Home Office exercises discretion.

Dependant partners will not be assessed on absences prior to 11 January 2018, but absences from 11 January 2018 will count in the same way as the main applicant.

Dependant children do not have to meet the excessive absence rule.

While the family migration routes do not have a 180 day rule for the purposes of an ILR application, absences will be taken into account when subsequently applying to naturalise as a British citizen.

 

Knowledge of Language & Life in the UK

If you are aged between 18 and 64, you will also need to prove you meet the Knowledge of Language and Life (KoLL) in the UK requirements.

Limited exceptions to the KoLL requirements include:

Victims of domestic violence
Foreign and Commonwealth citizens on discharge from HM Forces (including Gurkhas)
Highly skilled migrants applying under the terms of the Highly Skilled Migrant Programme (HSMP) judicial review, and their dependants
Bereaved spouses, civil partners, unmarried partners or same-sex partners of people present and settled in the UK
Parents, grandparents and other dependent relatives of people present and settled in the UK, applying under paragraph 317 of the Immigration Rules, even if they are aged between 18 and 64
Adult dependent relatives, under Appendix FM of the Immigration Rules, even if they are aged between 18 and 64
Retired persons of independent means
People applying for ILR as a refugee
People applying for ILR on the basis of discretionary leave
People applying for ILR on the basis of humanitarian protection
People applying for indefinite leave to remain outside the Immigration Rules, for example under discretionary arrangements such as those for Gurkhas, widows, overage dependants and orphans
People with a physical or mental condition, is suffering from a long-term illness or disability that severely restricts their ability to learn English or prepare for the Life in the UK test, or has a mental condition which prevents them from speaking or learning English to the required standard.
Doctors, dentists, nurses or midwifes who have previously been granted leave under Tier 2 (General), do not need to meet the English language requirement for indefinite leave to remain but are still required to satisfy the knowledge of life in the UK.

 

To meet the KoLL requirement, applicants have to show knowledge and understanding of the English language and of UK history and culture.

The English language requires the applicant to have a speaking and listening qualification in English at B1 level or above of the Common European Framework of Reference for Languages (CEFR), or a degree that was taught or researched in English or being a national of a majority English-speaking country.

The English language test must be included in the Home Office’s Secure English Language Test (SELT) list and cover speaking and listening at B1 or above. Also, the test must be taken at a Home Office approved test centre.

 

How to apply for ILR after 5 years

To apply for UK ILR, you will need to complete the relevant form. The form to use will depend on which visa category you are currently under.

The two main forms are SET (M) and SET (O).

Form SET(M) is if you are applying as the partner of a person or parent of a child already settled in the UK, while form SET(O) is for various other visa categories, for example, under Tiers 1 and 2 of the points based system (PBS), as well as for PBS dependants.

 

ILR supporting documentation

At your UKVCAS appointment, you will need to bring the appointment confirmation email provide a valid passport or another travel document for yourself, and any dependants who are applying with you, as well as any biometric residence permit if you have one.

You will also need to provide supporting documentation which, depending on the Home Office’s request, could include:

  • Any previous passports or travel documents you have held during your stay in the UK.
  • Any birth or adoption certificates for any dependants applying with you.
  • Any police registration certificate where you have been required to register with the police after arriving in the UK.
  • Evidence of your finances, for example, bank statements and wage slips.
  • Your pass certificate for the life in the UK test and any relevant English language qualifications.
  • Evidence in support of any absences from the UK, for example, a letter from your employer or travel documents for annual leave.
  • Any other supporting evidence relevant to your specific visa category.
  • Two identical colour passport-sized photographs of each applicant with full names clearly written on the back of each photo.

The documents can be uploaded to the UKVCAS online system or digital copies can be made at the appointment.​

 

Attend UKVCAS appointment

To book your appointment, you may need to pay a fee. Appointments at the six core service centres are free, while the enhanced and VIP service points available at a charge.

You will be asked to provide your fingerprint, a digital photo of your face and your signature. This is known as your biometric information. It costs £19.20 to give your biometric information

This information will be used to provide you with a biometric residence permit. You do not have to apply separately for a permit, rather you will get one automatically if your application is approved.

You can use your biometric residence permit to confirm your right to work or study in the UK, or to confirm your right to any public services or benefits you are entitled to. Indefinite leave to remain will give you broadly the same rights and entitlements to services and welfare benefits as a UK citizen.

If your application includes family members, you must all go to an appointment together.

 

When can you apply for indefinite leave to remain?

Applications for indefinite leave to remain are time sensitive. You must apply prior to the expiry of your current leave and while you are still in the UK.

However, you should not apply more than 28 days before the end of your current leave. If you apply any earlier, your application may be refused and your fee will be non-refundable. You would then be required to resubmit your application and pay a further fee.

Applications for indefinite leave may be refused if you have overstayed beyond the end of the last period of leave. You may, however, have a short period of overstaying disregarded if your application is made within 14 days of your previous leave expiring, and there is a good reason beyond your control why the application could not be made in time.

By staying beyond the expiry of your visa you will be at risk of removal from the UK, refusal of further leave or even criminal prosecution.

 

How long are the ILR processing times?

It can take up to 6 months to be told whether or not your application has been successful. If you need a decision more quickly you may be able to book UKVCAS priority or super priority processing where available and at an additional charge.

 

ILR for dependants

Family members on a dependant visa may also be eligible for ILR where the main applicant qualifies.

You are able to include dependants, such as spouses and partners and children under 18, within your main ILR application, provided they hold dependant visas.

Separate ‘main’ visas, such as a spouse with their own Tier 2 visa, cannot be included.

Spouses and partners of British citizens and of UK permanent residents can apply after 2 years on a spouse or partner visa provided their first spouse or partner visa was issued before 9 July 2012. Spouse and partner visas issued after 9 July 2012 have a longer qualifying period of 5 years, meaning the first applications will be eligible in July 2017.

Non-UK born children can only apply if both parents have or are applying for ILR.

UK-born children do not need to apply for ILR. They can be registered as British once both parents have ILR.

 

How much does an ILR application cost?

The current fee (as at April 2020) to apply for indefinite leave to remain is £2,389.

 

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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