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Apply for ILR After 5 Years

Can you apply for ILR after 5 years in the UK?

To apply for Indefinite Leave to Remain (ILR) in the UK, you must satisfy the eligibility requirements, which include a minimum period of continuous residence under a qualifying, valid visa. This means some visa holders will be able to apply for ILR after 5 years in the UK.

Attaining ILR is beneficial for many reasons. You will be free to live in the UK without restriction on time or activity, and you will no longer be subject to immigration control. The only limitation is that you should not be absent from the UK for more than 2 years at a time. After 12 months with ILR, you can become eligible to apply to naturalise as a British citizen.

Given the advantages of settling in the UK, the application process will require you to provide extensive documentation to evidence your eligibility. The requirements however are strict, and applying the rules to your circumstances is not always straight forward. But getting it wrong can result in issues, and may be grounds for a refused application if the Home Office determines you are not eligible.

In this guide we will explain how to check that you meet the continuous residence requirement to make you eligible for ILR after 5 years.

 

Visa categories that are eligible for ILR

Your current immigration status will determine the length of continuous period required for ILR eligibility. Many categories will permit visa holders to apply for ILR after 5 years in the UK.

 

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
Innovator route After 3 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
Global Talent and Tier 1 (Exceptional Talent) visa After 3 years
Skilled Worker visa and Tier 2 (General) 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

Domestic Worker in a Private Household

After 5 Years

 

Continuous residence requirement

Appendix Continuous Residence took effect in December 2020, detailing how the residence requirement is met for the following routes:

  • Skilled Worker (and Tier 2 (General))
  • T2 Minister of Religion (and Tier 2 (Minister of Religion))
  • T2 Sportsperson (and Tier 2 (Sportsperson))
  • Representative of an Overseas Business (and Media Representative and Sole Representative)
  • UK Ancestry
  • Global Talent (and Tier 1 (Exceptional Talent))
  • Innovator
  • T5 (Temporary Worker) International Agreement Worker (Private Servant in a Diplomatic Household)
  • Dependants and Child Dependants of the routes listed above, except for UK
  • Ancestry and Representative of an Overseas Business where there is no qualifying period of continuous residence for dependants

 
ILR will be refused if the applicant does not meet the continuous period requirement set out in the Immigration Rules.

The continuous period requirement is the minimum amount of time which a migrant must have spent here continuously and lawfully with leave to enter or remain, and either in employment or being active in the UK economy.

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.

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

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.

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.

Only whole days away from the UK will be counted towards the absence calculation.

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.

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.

Any time spent working off shore on the UK continental shelf, beyond the 12 nautical mile zone defined as UK territorial waters, does not count toward the continuous qualifying period for ILR, for example on ships or oil rigs. You must count this as an absence from the UK.

In limited circumstances, excessive absences may be deemed allowable and not counted toward the 180 day limit, for example, any absence related to the original purpose of entry to the UK  and absences based on serious, compelling or compassionate grounds.

Serious or compelling reasons could include:

  • Serious illness of the applicant or a close relative
  • A conflict
  • A natural disaster, such as a volcanic eruption etc

 

To make a request for absences to be exempted on serious or compelling grounds, you will need to provide evidence to support your assertion.

Depending on the grounds you are seeking to rely on, supporting documentation could include:

  • Medical certificates
  • Birth or death certificates
  • Evidence of disruption to travel arrangements

 
If absences relate to your employment, 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.

Applicants from 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 which will not break the continuous period

In some circumstances, absences will be deemed not to break the continuous period.

 

1. 180 whole days’ absence

As above, applicants are permitted no more than 180 days’ absences within any rolling 12-month period within the qualifying period.

Part-day absences are not counted. Only whole days are counted for allowable absences.

 

2. Period between the issue of entry clearance and entering the UK

The time between entry clearance being issued and the applicant entering the UK may be counted as part of the 180-day allowable absence within the 12-month rolling period, and as such, part of the qualifying period. There will be no requirement to explain any delay in travelling to the UK.

However, should the delay in entry be more than 180 days, only the period after the date of entry can count towards the qualifying period.

 

3. Entry to the UK through Ireland

Individuals who entered the UK through Ireland and did not pass through immigration control will need to provide alternative evidence of their date of entry since their passport will not have been stamped.

 

Falling short of the 5-year requirement

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.

 

Dependants

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.

 

Need assistance?

DavidsonMorris’ team of UK immigration lawyers can advise on all aspects of UK indefinite leave to remain, including guidance on ILR eligibility after 5 years’ residence, as well as the other ILR eligibility criteria you will need to meet, including passing the knowledge of life in the UK test, meeting the English language requirement and proving you are of ‘good character’.

We have an established reputation for effective and efficient management and processing of settlement, citizenship and naturalisation applications.

If you have any questions regarding your eligibility to apply for ILR after 5 years UK, please contact us.

 

ILR after 5 years FAQs

Can I apply for ILR after 5 years?

The qualifying period of UK residence depends on the type of visa you currently have. For example, Skilled Worker visa holders are eligible after 5 years in the UK.

How long does Indefinite Leave To Remain (ILR) last ?

Indefinite leave to remain does not expire. However, your status may be lost if you are absent from the UK for a period of two years of more.

How much does ILR cost?

The ILR application fee in 2021 is £2,389 per applicant.

Last updated: 18 December 2020 

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