ILR – Frequently Asked Questions

UK Indefinite Leave to Remain (ILR) is status held by individuals who have applied for and been granted permission to remain in the UK to live, work or study without time restrictions. It is open to individuals of non-EEA countries who meet the ILR eligibility criteria.

Generally, this means having spent 5 continuous years in the UK with lawful status and without excessive absences (see below).

We look at some of the frequently asked questions put to us by individuals looking to apply for ILR or to settle in the UK.

Is ILR the same as citizenship?

No, ILR is not the same as citizenship.

There is some overlap in the rights attained, but they refer to different legal status and entail different eligibility and application requirements.

Importantly, ILR is a mandatory prerequisite for non-EEAs wishing to apply to naturalise as British citizens.

With ILR, holders are able to live and work in the UK without immigration restrictions, but they do not hold nationality so they cannot apply for a British passport or vote.

With British citizenship, you are also free to live and work in the UK without immigration restrictions, but you are able to apply for a British passport and you do attain the right to vote. Before you can apply to naturalise, you need to have held ILR status for at least one year (or straight away if married to a UK resident).

And while ILR can be lost after 2 years’ absence from the UK, citizenship is permanent.

In both cases, you will need to make an application to the UK Home Office to evidence your eligibility and suitability, which needs to be approved in order for you to be granted either ILR or citizenship.

I’m an EEA national and I’ve been in the UK for five years, can I apply for ILR?

EEA nationals cannot apply for ILR, you instead need to look at permanent residency.

If you are in the UK and are not looking at permanent residence application, to remain in the UK after Brexit you will be required under new rules to apply under the Settlement Scheme to confirm your status in the UK.

Is ILR the same as permanent residence?

Both ILR and permanent residence refer to immigration status free from time restriction and free from limitations on leaving and entering the UK.

Under current UK immigration rules, EEA nationals are required to apply for permanent residence, which is the prerequisite to applying to naturalise as a British citizen.

ILR on the other hand is the settlement route for non-EEA nationals.

I’m a Tier 2 visa holder – can I apply for ILR?

ILR is the primary route to settlement for non-EEAs on points-based visas such as the Tier 2 (General) visa where there is a 6-year cap and for Tier 1 visa holders to remove the requirement to have to apply for renewals ahead of each visa expiry.

ILR is not however open to Tier 2 ICT holders.

What is the ILR application process?

To apply for ILR, you will need to complete the relevant ILR form and provide supporting documents to evidence your case.

You should also check if you need to pass the Life in the UK test and the English language requirements.

You will also need to pay the relevant application fee.

How exactly are absences calculated for ILR? I spend a lot of time travelling overseas for work and am concerned I’m close to the 180 day threshold.

The rule is that you may not have spent more than 900 days outside the UK in the last five years and no more than 180 days in the last 12 months.

In January 2018, the rules on calculating the qualifying ILR absence period changed.

The change has effectively removed any flexibility for applicants in applying the 180-day absence limit to fixed 12 month periods. Now, the 180-day absence rule is calculated on a rolling basis against any 12 month period during the applicable qualifying period of continuous residence – in most cases, 5 years. This means if you have absences from the UK totalling over 180 days during any one 12-month period of your qualifying period, you will not be eligible for ILR by way of ‘excessive absence’.

Importantly, this change applies retrospectively to visas granted after and before the rule change (11 January 2018).

Discretion and exemptions may however apply, so it is recommended to take advice on your circumstances to ensure you are working to the correct rules or exercising relevant exemptions.

For example, if your absences were as a direct result of “serious or compelling reasons” – this would not extend to work-related reasons, instead, natural disasters, conflicts or serious illness (you or a close relative) – or if applying the new rule causes you “exceptionally harsh consequences”.

The change in absence calculation is causing issues for Tier 2 (General) visa holders who travel extensively on business.

If you intend to apply for ILR and are concerned about your time out of the UK, it’s advisable to take steps where possible to plan, manage and reduce time spent out of the country: avoiding non-essential trips, reducing leisure travel if business demands cannot be reduced, or postponing travel until after ILR has been secured. Keep contemporaneous records of your travel dates and destinations; you will need this information for your application and it has to be accurate.

A further consideration – if you do travel extensively – if you do succeed in securing ILR and continue to travel extensively, while you’ll no longer be subject to the 180 day rule, ILR status may be lost if you are absent from the UK for more than two years.

I’m a PBS visa dependent – does the absence rule apply to me?

The ILR absence rule changes in January 2018 also affected points-based visa dependants. Prior to this, PBS visa dependants were excluded from the excessive absence requirement. Now – if you are making a new application for ILR, ie after 11 January 2018, the 180-day absence rule will apply in the same way as it applies to the main visa applicant.

The rules do not apply retrospectively, meaning only absences during periods of visa permission granted after 11 January 2018 will count towards the 180 days.

Note however that the absence rules doesn’t apply to children, only to spouses and unmarried partners of PBS visa holders.

What is the earliest date I can apply for ILR?

Generally, you can apply 28 days prior to the date you entered the UK, but if you entered the UK within 3 months of your visa being issued, you might eligible to apply 28 days prior the issue date on the visa.

I am a Tier 2 (General) visa holder and need to travel for work. Can I travel while my ILR application is being process?

You will need to submit your passport (in original form) and your BRP card as part of your application, meaning it won’t be possibleto travel under your passport during this time.

Once your application has been approved, your passport will be returned usually within 10 working days of the decision.

Question about ILR? DavidsonMorris can help!

If you have any questions about any aspect of ILR – eligibility, making an application, reapplying following a refusal – DavidsonMorris can help.

We are specialists in UK immigration, guiding individuals through the application process and helping applicants attain UK settlement. For advice or queries about UK citizenship, contact us.

By |2018-10-07T23:03:12+00:00October 2nd, 2018|0 Comments