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UKBA modernised guidance – ILR after 5 years residence in the UK

Some of you will already be aware that the UKBA has updated a number of guidance documents (known as Immigration Directorate Instructions or IDIs) online. ‘Modernised guidance’ is available for those applying for indefinite leave to remain after spending a continuous period in the UK under the working categories including the previous work permit scheme, Tier 1 and Tier 2.

A number of enquiries that we have recently received from those coming up to the end of their 5 years, have related to what constitutes continuous residence. There has also been some confusion as to what happens when a non-EEA national falls short of the 5 year residence requirement.

If a non-EEA national on a work permit for example, is granted 5 years continuous leave to enter but does not enter the UK until some 6 to 8 weeks after the date the visa is issued, they will not have completed 5 years leave in the UK and fall short of this requirement for ILR. However, the guidance confirms that:

Applications that fall short of the five year continuous period

In some cases, applicants may have been granted five years continuous leave, but will not have spent five years continuously in the UK before their current leave expires. Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the five years, provided this period was not longer than three months.

This is a positive piece of guidance for those who may have not entered the UK within 28 days of their visa being issued.

If you have any questions regarding your eligibility to apply for ILR, please contact us on 0845 413 7000 or at info@davidsonmorris.com

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18 Responses to UKBA modernised guidance – ILR after 5 years residence in the UK

  1. manish says:

    I am a Tier 1 holder (came to the UK in Sep 2007 on HSMP) and have got extension under Tier 1 in 2007. I would like to know wheather I need to apply for 2nd extension to complete 5 years or can I apply for ILR in 2012. The dates are mentioned below:

    HSMP Entry Clearance: 10-Aug-2007
    Entered in the UK: 19-Sep-2007 (Gap of 38 days)
    Tier 1 extension till: 09-Aug-2012.

    Total days spen outside UK till date is 80 days (spread over 3.5 years).

    As you see, I will fall short by 10 days for the criteria of applying ILR : 28 days to 5 years.

    Do I need to apply for 2nd extension. I have also read a document on UKBA guidance, which says the case worker can consider the gap between the EC and date of entry to count towards 5 years for ILR provided the gap is not more than 3 months. This means I can apply for ILR without 2nd extension.

    I need your guidance on this.


    • davidsonmorris says:

      Hi Manish

      Thank you for your query.

      Tier 1 (General) settlement guidance states that in cases where the applicant falls short of the five year continuous period, caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the 5 years, provided this period was not longer than 3 months.

      As the period between the grant of entry clearance and the date you entered the UK is less than 3 months, this will be counted towards the 5 year qualifying period. Based on the information provided, you should be able to submit your application for ILTR on or after 13 July 2012 (i.e. 28 days before you reach the 5 year qualifying period).

      Please feel free to contact us on 0845 413 7000 or at info@davidsonmorris.com if you require any further information.

      Kind regards


  2. Rachu says:

    I’m an overseas registered nurse from Nepal and have been accepted by NMC after fulfilling the requirements for the registration.I’ve heard that in order to apply for Overseas Nursing Programme in UK,I need to apply under Modernised Guidance Immigration Category..I have no idea regarding this.Can’t I apply directly on Tier 4 for this programme.Can I apply for the course to any University of Uk directly??
    Please could u guide me regarding this.I would be very thankful.
    thank you

    • davidsonmorris says:

      Hi Rachu

      Thank you for your email. Please contact us on 0845 413 7000 so that we can assess your eligibility to apply under Tier 4.

      Kind regards


  3. Kalechor says:

    hello david
    i got query about my application, On 4th july 2011, i applied for ILR under long residency and filled the form SET (O) april 2011 version, but today i found out that there was already latest version MAY 2011 SET (O).
    the fee payment was made on postal order. now my query is:
    Will the home office reject my visa , if yes then will they take the postal order and return back to me?
    if they return back my application pack how long will it take?
    Your valuable suggestion will be highly appreciated.
    Many thanks

    • davidsonmorris says:

      Hi Kalechor

      Thank you for your query.

      The UKBA will return applications as invalid if the wrong (outdated) form was submitted and it could take a few weeks for the UKBA do return the application to you. Please contact us on 0845 413 7000 or at info@davidsonmorris.com so that we can advise you further.

      Kind regards


  4. Nash says:

    Hi David,
    I am a Tier 2 holder. My current permit expires in April 2014, although my 5 yr continous residence period will be completed in Sept 2013. My Q is regarding Annual Leave and Overseas business trips.
    Can you please confirm if overseas business trips and annual leaves abroad are not counted within the 6 month allowance as long as none of the trips are longer than 3 months.
    Also please direct me to any UKBA official docs which confirms this.
    Appreciate your help

    • davidsonmorris says:

      Hi Nash

      Thank you for your query.

      Please note that in assessing if an applicant has met the criteria for five years continuous residence in the UK, short absences abroad, i.e. for holidays (consistent with annual leave) or business trips (consistent with maintaining employment or self employment in the UK) may be disregarded, provided the applicant has clearly continued to be based in the UK.

      Kind regards


  5. Manoj says:

    Dear David,

    I am an Indian national, came to uk under hsmp in 2006, my dates are as below

    HSMP entry clearance: 10 Sept 2011

    Arrival to UK: 30 October

    First extension: Until 10 Sep 2011 (gap of 50 days)

    Second extension: Until 30 October 2011

    I would appreciate your advice when i will be eligible to apply for ILR in August 2011 or Ocober 2011? The 3 months new policy was not published in Feb 2011, so i had to get the second extension to meet 5 yrs criteria according to the existing policy.

    • davidsonmorris says:

      Hi Manoj

      Thank you for your query.

      Please contact us on 0845 413 7000 or at info@davidsonmorris.com should you require advice with respect to your Immigration matter.

      Kind regards


  6. Ankit says:

    Dear David,
    I received entry clearance on 05/12/2006 (on work permit basis) and entered UK on 15/12/2006. (After 10 days)
    Initially, I received Work Permit for 5 years. But after 18 months, I successfully applied for a new job and the renewed Leave to remain is till 27/11/2011. I am running 9 days short for completing 5 years (counting from date when I received Entry Clearance). Do I need to extend my Work permit again; or can I directly apply for Leave to Remain?. What happens if my Leave to Remain Application is rejected?

  7. Ug Ada says:

    Dear David,

    I have completed my 5yrs in the UK under Tier 1. In feb 2010, I was convicted of Failure to Provide Specimen. Banned for 1yr and fined £300. My ban is over and I have completed my payment.
    It appears I still have approx 3.5yrs unspent as per Rehabilitation Act. Will this affect my ILR application? If yes, can I then be allowed to extend my tier 1 for the 3.5yrs?

    Many thanks

  8. William Simpson says:

    Thanks David for this very helpful posting!

    My situation is slightly different: I have a UK Ancestry-Employment visa rather than a work permit. The visa was contingent on employment, and I needed my letter of offer in order to get the visa. I needed the visa prior to entry to the UK, and so therefore it expires 40 days before the 5-year residence requirement. I was wondering if the statement: “Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the five years, provided this period was not longer than three months” also applied to UK Ancestry-Employment visas.

    My visa says, verbatim:

    Thanks very much for any help.

  9. sarathi says:

    I got my Work-Permit approved on 16th October 2006, during this time I was working for my employer in the UK on a SEGS (Science & Engineering Graduate Scheme). On getting my WP approved I sent my Passport for the Visa to get stamped which I received on 26th November.
    My Question is can I apply for my ILR after 16th September 2011, based on the fact that I got the Work Permit Letter on 16th October 2006 ? or do I count the 5 years from the day I got the Leave to Remain stamped.
    I have an appointment booked at UKBA for September.
    Please advise.
    Many Thanks,

  10. joanna says:

    Dear David,

    I have been in the UK for nearly 5 years as a Work Permit Holder working for same company. I intend to apply for the ILR, but someone noticed that there’s a 3-month gap between the validity date of my Original Visa (which expired September 30, 2008) and the issue date of the extension visa (December 15, 2008). The application for the extension was initially sent June 2008 but despite the follow-ups made by our Human Resources, they have not received any response from the Home Office regarding the status of the application until September 2008 when they asked for the passports (myself and my dependent’s) and bank statements. It wasn’t for another 3 months when I heard from them again through an email (received December 2008) asking where the caseworker would need to send the passports to. Will this cause a concern on my ILR application, which I intend to file mid-September 2011?

    I will await your advice.


  11. wendie says:

    I was granted entry clearance in October 2006 for two years under the HSMP rule but did not come into the Uk until December 2006. I have since applied for an extension after two years.
    My query is my clearance expires in October but I do reach my settlement threshold until December. i called UKBA for an unrelated query but the lady who spoke to me said, instead of applying for another 2 months extension; that I could apply for ILR straightaway despite the fact that I have only been in the uk for 4 years and 10 months.she said i i came into the uk within three months of my entry clearance, that i can do this. is this really true?
    If this can be confirmed, I will like to employ your firm to represent.
    Thank you.

  12. Abhishek says:

    Thanks David for very helpful posting,

    Could you please advise me what will be qualifying date for me for ILR and when shall I book appointment for in person application for ILR based on the dates provided below:

    my entry clearance date = 20 Dec 2006
    Date of Entry in UK = 14 Jan 2007
    Visa expiry = 20 Dec 2011

    Many Thanks

    Best Regards


  13. reema says:

    Hi Just need general guidance on a few a things.

    I have been in UK since Dec 2007 on a work permit. My current work permit will expire in Sept 2013 (6 years), however I am looking to do an MBA from London Business School from August 2012 onwards. My admission offer is confirmed. The MBA will be for 18 months (i.e. from Aug 2012 – June 2014).

    Now, I have few questions below –

    Obviously I am on work permit. Would I be required to switch to student visa category when I begin my MBA
    In aug 2012, I would only be 4 months short of 5 year work permit period. Is there a change I can get ILR because if I take student visa, then I will have to wait for a total 10 years for ILR, that is a big sacrifice when I am only 4 months short of ILR.

    Can you advise as to what should I apply for in Aug 2012, when I have start my MBA.