ILR after 5 years UK
To be eligible for Indefinite Leave to Remain (ILR) in the UK, you must satisfy the requirements which include a minimum period of continuous residence in the UK under a qualifying and valid visa that leads to settlement.
As such, your current immigration status will determine the length of continuous period required for ILR eligibility. Many categories for example will permit visa holders to apply for ILR after 5 years in the UK.
Visa categories that are eligible for ILR
|Current category||Qualifying ILR period|
|Spouse or civil partner of a British Citizen or person settled in the UK visa||After 5 years where the relationship is genuine and subsisting|
|Unmarried partner||After 5 years where the relationship is genuine and subsisting|
|EEA Family Permit||After 5 years|
|UK Ancestry visa||After 5 years|
|Tier 1 (Investor) visa||After 2, 3 or 5 years depending on level of investment|
|Tier 1 (Entrepreneur)||After 3 or 5 years depending on the business activity|
|Tier 1 (Exceptional Talent) visa||After 3 years|
|Tier 2 visa||In limited circumstances only, after 5 years|
|PBS visa dependants||After 5 years|
|Retired Person visa||After 5 years|
|Discretionary Leave to Remain||After 6 years|
|Long residence||After 10 years continuous legal residency in the UK|
|Returning resident||If settled in the UK prior to departure and returning to the UK within 3 years of departure, then may be able to apply immediately on return|
|Turkish worker or businessperson||After 5 years|
To be eligible to apply for ILR, you will need to evidence in your application that you have not spent 180 days or more outside of the UK in the 12 months prior to your application for ILR; that you have sufficient knowledge of life in the UK and the English language; and that you meet the Good Character requirement.
For eligible individuals looking to apply for ILR after 5 years, it will be critical to your application to ensure you have correctly calculated the duration of your continuous residence and that it satisfies the Home Office stipulations particularly with regards to absences from the UK.
Absences from the UK
Only whole days away from the UK will be counted towards the absence calculation.
The time between which your entry clearance was issued and you entered the UK can be included in the qualifying period as long as it does not exceed 90 days. If exceeded, none of the days after the 90 day limit will be counted towards the qualifying period.
An absence related to the original purpose of entry to the UK (i.e. not counted toward the 180 day limit) and absences based on serious, compelling or compassionate grounds are regarded as allowable absences for selected visa categories.
Generally, serious or compelling reasons can vary, but the section can include:
• Serious illness of the applicant or a close relative
• A conflict
• A natural disaster, such as a volcanic eruption etc
If you wish to have absences exempted on serious or compelling grounds you will be required to provide evidence. Supporting documentation could include:
• Medical certificates
• Birth or death certificates
• Evidence of disruption to travel arrangements.
Applicants on the old Highly Skilled Migrant Scheme (applying under the HSMP Forum Judicial Review) and selected Tier 1 categories are not required to give reasons for absences if these do not exceed the 180 day limit in any of the five years.
Absences connected with employment outside the UK, where the UK employment is secondary, are not permitted absences and constitute broken residence period. Absences that are a result of employment, whether it is related to your job in the UK or not, will count towards the 180 day limit each year.
Absences that are linked to your stay in the UK must be consistent with and connected to your sponsored and permitted employment in the UK.
This also includes any paid annual leave stemming from your employment. This category is judged on a case-by-case basis and absences should be in line with the UK annual leave entitlement for settled workers.
Short trips away (24 hours or longer) from the UK during weekends or other non-working days that are consistent with the basis of stay and do not break the continuity of leave will have to be counted towards the 180 day limit.
Where you wish to class absences under this category you will require evidence. We advise that you should obtain a letter from your employer which sets out the reasons for the absences, as well as your annual leave entitlement. Where you have taken short visits outside the UK, evidence from the employer should be provided confirming your normal working pattern and proof that the absences occurred during a non-working period.
Failure to meet the 5-year continuous period
What happens if applications fall short of the 5 year continuous period? For example, if you are granted 5 years continuous leave to enter but, do not enter the UK until some 6 to 8 weeks after the date the visa was issued, you will not have completed 5 years leave in the UK and as such fall short of this requirement for ILR.
In some cases, applicants may have been granted 5 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.
Where one or both parents hold ILR, children under 18 can apply for ILR irrespective of their time in the UK. If your children are on dependant visas, they will need to apply for ILR at the same time as you. Failure to do so will result in them losing their dependant visa status and critically, they would have to wait five years before they become eligible for ILR.
Do you have a question about applying for ILR after 5 years? DavidsonMorris can help!
At DavidsonMorris we have the experience to advise you on the most appropriate type of application for your individual circumstances and have the insight to make the application process as smooth as possible.
We have an established reputation for effective and efficient management and processing of settlement, citizenship and naturalisation applications. We have a team of professionals who will look after you from start until you obtain your Indefinite Leave to Remain and British passport.
If you have any questions regarding your eligibility to apply for ILR after 5 years UK, please contact us.