If your ILR application has been refused – what do you do next?
A refused ILR application can be devastating and costly. You may be considering your options to:
Submit a new application
If the reason for the refusal was something that could be fairly easily rectified, such as an error on the form or a missing document, you could consider resubmitting your application with the issue resolved.
Apply for an Administrative Review
If your refusal looks to be on the basis of an error in decision making, it may be possible to apply for your application form and supporting documents to be reviewed again. If the Administrative Review finds in your favour, the original decision will be overturned.
For Administrative Review to be available, you will need to be applying for ILR on the basis of a points-based visa. Your refusal letter will advise if this option is available to you and the time limits you will need to meet.
Appeal the decision
The right to appeal only applies where you can show your human rights would be infringed by refusing your application. Again, strict timeframes apply. For applicants already in the UK, you must submit your appeal within 14 calendar days of the decision notice. If you are outside the UK, you have 28 days from the decision date.
Judicial review offers a last resort option and is only available where the court permits. It is a complex process which assesses the legal basis of the Home Office’s decision to refuse your application. Specialist legal advice will be critical if you are considering this course of action to weigh up the merits of your case against the prospects of successfully overturning the refusal.
Commons grounds for refused ILR applications
- You have spent extensive time outside the UK during the continuous period
To be eligible for ILR, you cannot have been absent from the UK for more than 180 days in any given 12 month period within your overall qualifying period. This rule now also applies to PBS dependants.
Gaps in your UK residency in excess of the threshold will require you to ‘reset the clock’, starting your qualifying period from the end of your last ‘excessive’ absence.
Excessive absences may require explanation in support of your application. The only exception to this rule are Tier 1 visa holders, who are not required to give evidence of absences from the UK.
Some absences will not be counted as breaking your continuity and therefore will not need to be included. In addition, partial days are not included, only full 24 hour absences count. The period between the issue of your entry clearance and entering the UK is also not included.
It is highly recommended to seek legal advice regarding your absences as the requirements are very stringent, complex and subject to change.
- Previous illegal immigration status, deportation or any other negative immigration history
If your records show past UK immigration issues which you fail to mention on your ILR application form, your application is highly likely to be refused. However minor you believe them to have been, or however long ago they took place, you are required to give full disclosure in your application.
- Criminal convictions
All criminal convictions, including cautions and previous arrests, must be declared on your ILR application. This is regardless of where and when the offence took place. Again, failure to disclose results in refusal.
It is best to seek legal advice if you have anything to disclose to understand if and how this will impact your application. You need to demonstrate that you are of ‘good character’, as such, any cautions or arrests may require subsequent character references to support your application.
Paragraph 322 of the ‘General Grounds for refusal’ state that if an applicant has been convicted of an offence for which they have been imprisoned for 4 years or more, their application will be denied.
Likewise, should an applicant have been convicted of an offence for which they have received a custodial sentence for at least 12 months but less than 4 years, they will also be denied ILR unless a period of 15 years has passed since the end of the sentence.
If you have been convicted of an offence and sentenced for less than 12 months, a period of 7 years since your sentence finished must have passed prior to you being eligible to apply for ILR.
Any offence which you have been convicted for or admitted to which is added to your criminal record within 24 months prior to the date of application for ILR, will lead to a refusal, even if a non-custodial sentence has been issued.
- You have not satisfied the English language or Life in the UK requirements
Most applicants will be required to take the Life in the UK test before applying for a settlement visa.
Exempt from taking the knowledge of life in the UK test are applicants under the age of 18, those over the age of 65, those who have previously taken and passed the test or those with a long term physical or mental condition.
All applicants aged between 16 and 65 from non-English speaking countries must provide evidence of knowledge of the English Language unless they have a physical or mental condition that prevents them from doing so.
Acceptable evidence will be a document or academic qualification that was with taught or research in English and is recognised by UK NARIC as equivalent to a UK bachelor’s degree or higher, or taking an approved English language test and passing with at least a CEFR level B1 in speaking and listening.
- Failure to pay UK taxes
HMRC and UKVI exchange information regarding taxes paid in the UK, meaning details of your tax history – whether paid or unpaid – will be accessible to the Home Office.
Do not be tempted to claim you are earning the required income on your application if you have not filed that income with the HMRC, as this will be seen as a discrepancy.
If you have had any issues with your tax payments in the past, even if they were subsequently resolved with HMRC, the UK Visas and Immigration (UKVI) may still use these as grounds for refusal of your application for ILR. If you have knowingly unpaid any UK taxes, this will be an automatic refusal.
If you have had any issues at all, you should speak to a solicitor who specialises in immigration law to help you with your application.
Do you have a question about a refused ILR application?
There are many reasons why Indefinite Leave to Remain applications are refused.
DavidsonMorris are specialist UK immigration advisers, supporting individuals throughout the ILR process, from initial applications through to options to challenge the Home Office decision. If you have a question about a refused ILR application, contact us.