UK indefinite leave to remain (ILR) grants the holder many benefits, but it comes with a number of conditions that must be met both to apply for ILR and to retain ILR status.
Indefinite leave to remain conditions
With ILR status, you can live and work in the UK free from immigration control, free from limits on the type of activity you can do and free from time restrictions on your stay.
ILR is indefinite and without expiry. However, under the UK’s ILR rules, indefinite leave to remain status can be lost in certain circumstances.
Loss of indefinite leave to remain
ILR may be lost in one of a number of circumstances:
|Loss of ILR status||Details|
|ILR revoked||The Home Office may have powers to revoke ILR where the individual:
|ILR invalidated||Where the individual is deported from the UK.|
|ILR lapsed||If the individual is absent from the UK for more than two years.|
While there is no time limit on indefinite leave to remain in the UK, there are certain circumstances that can result in ILR status being lost.
One of the main risks to ILR is if you leave the UK for a continuous period of 2 or more years. You must be ‘ordinarily resident’ in the UK to maintain your settled status, and by spending more than 2 years outside the UK, this will cause your leave to lapse.
Further, your indefinite leave will be automatically invalidated if you are deported from the UK, for example, as a result of a criminal conviction. Your leave may also be revoked in circumstances relating to national security or where ILR was obtained by deception.
If you lose ILR due to long term absence and you wish to reenter the UK and resume your previous status, you will need to make an application for a returning resident visa prior to attempting to enter the UK. Without a returning resident visa in place, you are likely to face difficulties, or certainly questions, at the border. Officials will want to be satisfied that if you are entering to remain, that you have the requisite permission in place.
There is no general right of appeal against a decision to revoke ILR or refuse a returning resident application, although an Article 8 Human Rights claim may be applicable in limited circumstances. Administrative Review may (albeit rarely) be available if the individual has been subject to a change of circumstances resulting in the loss of status.
How many days can you stay outside the UK for ILR?
Retaining ILR status conditions
To retain ILR status, you cannot be absent from the UK for a continuous period of more than two years, as per paragraph 20 of the Immigration Rules and Article 13 of the Immigration (Leave to Enter and Remain) Order 2000. Only a limited number of exceptions apply, such as individuals in UK government service overseas.
The individual will lose their status regardless of whether they still hold a BRP card or have the relevant stamp in their passport.
In practice, individuals may consider short stay travel back to the UK to ‘reset the clock’ and avoid loss of ILR before the two-period is reached. However, there is a further rule applicable in such circumstances which prevents ILR being retained for the purposes of visiting the UK.
Paragraph 18 of the Immigration Rules specifically refers to individuals being permitted reentry into the UK before an absence of two years, provided the border official is satisfied that the individual “now seeks admission for the purpose of settlement”. This means immigration officials have the power to deny an ILR holder entry if they believe the purpose of the visit is a short stay trip and not to remain and ‘settle’ as a resident.
In addition to meeting the settlement requirement, to gain reentry under ILR, the individual will also need to show they held ILR on their departure from the UK, that they have not been absent for more than two years and did not receive public funds to help with the cost of leaving the UK.
ILR application conditions
When applying for ILR, among the requirements you will need to show that you meet the continuous residence requirement.
The lawful residence condition is the minimum amount of time that an applicant must spend in employment, or being active in the UK economy on a lawful basis, before being eligible to qualify for indefinite leave to remain.
There are two essential elements to this condition:
- You must have been continuously resident in the UK for the qualifying period required under your existing immigration category.
- You must have been lawfully resident in the UK throughout this qualifying period.
In most cases, to qualify for indefinite leave to remain, you must have been continuously resident in the UK for at least 5 years prior to the date of your settled status application.
To be ‘continuously resident’ you must not have spent more than 180 days outside the UK in a consecutive 12-month period. You may also be required to provide reasons for, as well as evidence of, any absences.
Absences must be for a reason consistent with or connected to the original purpose of entry to the UK, such as a business trip. In some circumstances, absences for which you have a serious or compelling reason, such as the terminal illness of a close relative, may also be accepted as an allowable absence.
While allowable absences will not break your continuity of leave, they do still count towards the maximum limit.
You must also have been lawfully resident in the UK throughout the qualifying period. This means that you must not have spent any of your time in the UK without valid leave to enter or remain.
Additionally, you must not have breached your leave conditions, for example, by taking employment other than that permitted by your certificate of sponsorship.
You can submit an application for indefinite leave up to 28 days before the end of reaching your qualifying period of lawful continuous residence. If, however, you submit your application once your existing stay has expired, you may break your continuity, causing your application to be rejected.
You may, however, have a short period of overstaying disregarded if your application is made within 14 days of your previous leave expiring, and there is a good reason beyond your control why the application could not be made in time.
Indefinite leave to remain conditions for British citizenship
Having been granted indefinite leave to remain, this will put you on the pathway to becoming naturalised as a British citizen. Typically, you will be eligible to apply for British citizenship by way of naturalisation having held ILR for at least 12 months.
The 12-month requirement does not apply to spouses or civil partners of UK settled persons – you can apply to naturalise as soon as you are granted ILR.
You must, amongst other things, also satisfy the citizenship residency requirements. In most cases, this means you must not have spent more than 90 days outside of the UK in the 12 months prior to your application, and not exceeding 450 days in the 5 years throughout your qualifying period.
British citizenship, if granted, will give you the full rights of a UK citizen. While indefinite leave to remain can lapse if you stay away from the UK for longer than 2 years, British citizenship is for life.
DavidsonMorris are specialists in UK immigration, working closely with individuals to provide guidance and support through Home Office applications including Indefinite Leave to Remain. Contact us for advice on your application.
ILR conditions FAQs
How long can I stay outside the UK with indefinite leave to remain?
You can retain your ILR status provided you are not absent from the UK for more than two years. When reentering the UK under your ILR status, you will need to prove that you are returning for the purposes of settlement.
What are the indefinite leave to remain requirements and eligibility?
ILR requirements include continuous lawful presence in the UK for a certain period of time (depending on your current visa category), no breach of immigration rules or criminal laws during your qualifying period of leave; no absences outside the UK exceeding 180 days in a 12-month period during the qualifying period; meeting any financial requirement under your current visa category.
Does indefinite leave to remain expire?
ILR is generally indefinite, but can be lost in certain circumstances, such as absence from the UK of more than two years. Your ILR status does not expire on the expiry date on your BRP.
How do I keep indefinite leave to remain?
To retain your ILR status, you should avoid absences from the UK for more than two consecutive years. Other grounds for loss of ILR include criminality and deportation.
Last updated: 2 November 2020