ILR Refused (What Next?)

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A refused ILR application can be devastating, particularly after the cost, time and effort of compiling the application and supporting documents.

What are your options if your ILR application has been refused?

 

ILR refused – what are your options?

The place to start is the refusal letter from the Home Office. Consider the grounds that have been given for the decision, as this will help determine your next steps.

Taking legal advice can help you understand why your application was refused and what you can do next in your circumstances. Generally, the options if your ILR application has been refused are to either:

  • Appeal the decision
  • Apply for an Administrative Review of the decision
  • Apply for Judicial Review of the decision
  • Submit a new ILR application

 

You will need to act quickly, however, as some courses of action are subject to time limits.

 

Appealing the decision to refuse your ILR application

The right to appeal only applies in limited circumstances, where you can show your human rights would be infringed by refusing your application. The Home Office decision letter would need to state that an appeal is open to you.

Strict timeframes also 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.

 

Applying for an Administrative Review

If your refusal looks to be on the basis of a mistake or error in the Home Office’s decision-making, it may be possible to apply for your application form and supporting documents to be reviewed again. This process is called Administrative Review.

It is advisable to seek professional guidance when making an Administrative Review application to ensure you are fully explaining and evidencing the error or mistake that resulted in the refusal.

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. In most cases, you have to make the application for Adminstrative Review within 28 days of the decision letter. It costs £80 to file the application.

If the Administrative Review finds in your favour, the original decision will be overturned. Administrative Review processing can, however, take around six months.

 

Judicial Review

Judicial review offers a last resort option and is only available where the court permits it. It is a complex process which assesses the legal basis of the Home Office’s decision to refuse your application.

Judicial reviews are lengthy and complex. Specialist legal advice will be critical if you are considering this course of action, to weigh up the merits of your case and the prospects of successfully overturning the refusal, and to build a compelling case to support the legal grounds of your challenge.

 

Submit a new ILR application

In most cases, ILR applicants will simply need to make a new ILR application, addressing the grounds for refusal stated on the refusal letter.

If the reason for the refusal is something that could be fairly easily rectified, such as a typo, or an error on the application form, or a missing document, you could make a new application, providing the correct information and documents, and reapply straight away.

 

Commons grounds for refused ILR applications

As an ILR applicant, it is helpful to understand and avoid common grounds for ILR refusal:

 

Excessive absences

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.

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.

 

Issues with your ILR application form

If your application form hasn’t been correctly completed, or there are issues with your supporting documentation, the Home Office may refuse your application.

Before you submit the form, ensure all of the information is complete and correct and that you are submitting all the necessary documents.

 

Failure to disclose or manage debt

Having debt is not in itself a ground for refusal. However, if you have a CCJ which is still on the register, you must declare this within your application. The Home Office will investigate the status of your repayments and look for evidence that you have kept up agreed payment plans and there are no concerns about growing debt or failure to pay, as this would likely constitute conduct and character grounds for refusal.

 

Immigration breaches

If your records show past UK immigration issues which you fail to mention on your ILR application form, such as deportation or a period with unlawful immigration status, 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 of immigration breaches 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 that would suggest ‘adverse character’, 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.

 

Driving offences

While a fine for a minor driving offence is unlikely to be detrimental to your ILR application, more serious offences such as drink driving are likely to impact your eligibility under the good character requirement.

 

Failure to meet language and Life in the UK requirements

Most applicants will be required to take the Life in the UK test before applying for settlement.

There are limited exemptions, such as 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 also provide evidence of English Language ability, 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.

 

Adverse behaviour

Any examples of using deception, including false representation, fraud, forgery, non-disclosure of material facts or failure to cooperate, will result in a refused ILR application.

A common example is issues with paying UK taxes, however minor. HMRC and UKVI exchange information regarding taxes paid in the UK, meaning details of your tax history 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 Home Office 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.

 

Need assistance?

There are many reasons why indefinite leave to remain applications are refused. Whether you have received a refused ILR application and are unsure of your options, or are preparing your ILR application and want to ensure the optimum chance of success, we can help.

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.

 

ILR refused FAQs

What happens if my ILR is refused?

If your ILR is refused, you could either submit a new application addressing the grounds for refusal stated in the refusal letter, or taking advice will help you understand all the options potentially open to you.

Will CCJ affect my ILR application?

CCJs must be disclosed if still on the register. The ILR application will not be rejected just by being in debt or having a CCJ. Only where there has been non-payment of the debt or reckless build up with no intention to repay could a refusal result on character grounds.

How long does it take to get ILR decision?

ILR application processing usually takes up to 6 months under standard processing. Priority and super priority services are available for fast-tracked processing at an additional cost.

Last updated: 26 September 2023

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

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 at the time of writing, 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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