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Indefinite Leave to Remain (An Essential Guide!) | DavidsonMorris

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Indefinite Leave to Remain

Applicants face strict requirements to qualify for UK Indefinite Leave to Remain. These depend on which visa you are on and for how long you have been resident in the UK. Processing times also vary greatly depending on your visa class.

In this guide, we look at indefinite leave to remain in the UK, including the benefits of holding ILR, who is eligible and how to apply.

  • 18 minute read
  • Last updated: 26 November 2019

 

Contents

 

What is Indefinite Leave to Remain?

Indefinite Leave to Remain, or UK settlement, grants an applicant the right to live and work in the UK without any immigration restrictions. It is a mandatory requirement for non-EEA nationals looking to apply for British citizenship.

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

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.

With indefinite leave to remain, you can remain in the UK on an indefinite basis free from restrictions on travel and immigration. You can work and study and also claim public benefits. You can also leave and re-enter the UK without needing to secure a visa and can be joined by your family.

ILR does not however allow you to vote in the UK or apply for a British passport. ILR can also be lost if you are absent from the UK for more than two years or if you are facing deportation after a conviction.

Is ILR the same as citizenship?

There are several differences between indefinite leave to remain and British citizenship.

The eligibility requirements and application process differ significantly between ILR and naturalisation.

ILR status can be lost, where the individual as been absent fro the UK for more than 2 years, or revoked for reasons of national security or if you commit an offence that could lead to deportation.

Importantly, ILR is a mandatory prerequisite for non-EEAs wishing to apply to naturalise as British citizens. Before you can apply to naturalise, you need to have held ILR status for at least one year. If married to a UK resident, you do not have to wait the 12 month period to apply.

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.

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

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.

While ILR is the settlement route for non-EEA nationals, EEA nationals are required to apply for permanent residence (or Settled Status) as a prerequisite to applying to naturalise as a British citizen.

What are the indefinite leave to remain requirements?

ILR is not automatically granted. Strict eligibility criteria must be met and evidenced as part of the Home Office application, which includes completing the relevant form and submitting supporting documentation.

Qualification criteria vary depending on the type of visa status you have held in the UK, with some operating on a points-based system.
When you can apply for Indefinite leave to Remain depends on the visa held:

Immigration statusQualifying period
Partner of a British Citizen or Person settled in the UK visaAfter two years for visas issued prior to 9 July 2012, after five or ten years if applied on or after 9 July 2012
Tier 1 visaAfter five years
Tier 2 visaIn limited circumstances only, after five years
UK ancestry visaAfter five years
Retired Person visaAfter five years
Discretionary Leave to RemainSix years
Long residenceAfter ten years continuous legal residency in the UK
Returning residentIf settled in the UK prior to departure and returning to the UK within two years of departure, then may be able to apply immediately on return

 

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.

For example, if you are granted 5 years continuous leave to enter but do not enter the UK until 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.

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.

Depending on your visa category, you may also have to show you have not breached a specific threshold for absences from the UK.

Family members on a dependant visa may also be eligible for ILR where the main applicant qualifies.

ILR and KoLL requirement

If you are aged between 18 and 64 then as part of your ILR application you will need to pass the Knowledge of Life in the UK Test show your knowledge of the English language is at the required standard.

How are absences calculated?

The so-called ‘180 day rule’ on calculating the qualifying ILR absence period changed in 2018.

For entry clearance or leave to remain granted prior to 11 January 2018, ILR applicants cannot have been absent from the UK for more than 180 days in the five consecutive 12 month periods.

Periods of leave granted after 11 January 2018 however are calculated on a rolling basis, with the 180 day rule applicable to any 12 month period during of the qualifying period. Absences from the UK totalling over 180 days during any one 12-month period of your qualifying period will render you ineligible for ILR by way of ‘excessive absence’ – effectively resetting the clock on your residence.

The change in absence calculation is of most concern 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.

You will be advised which documents to send in support of your form. You will need to print the form and submit originals of the supporting documentation.

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 do not apply to children, only to spouses and unmarried partners of PBS visa holders.

How to apply for indefinite leave to remain

To make an application for ILR, you will need to complete the relevant form and compile the supporting documents to submit to the Home Office. Most applications for indefinite leave to remain now require applicants to attend an appointment at UKVCAS to submit their biometric information and submit digital copies of supporting documents.

You should also check if you need to pass the Life in the UK test and the English language requirements, and pay the relevant application fee.

Which ILR form?

There are two forms for indefinite leave to remain: form Set (0) and form set (M).

It will be important to use the correct form for your circumstances or your application is likely to be refused.

Set (0) is used to apply for indefinite leave to remain in the UK in various immigration categories and for a biometric residence permit:

 To use form set (o) for ILR Description 
Tier 1 Entrepreneurs and ‘accelerated’ entrepreneurs An entrepreneur being a person who has created a valid business and jobs for UK citizens. You may be eligible for accelerated entrepreneur and may apply after 3 years if you have either a high turnover of £5 million or more or have created 10 or more full-time jobs for the settled population
Tier 1 Investors and ‘accelerated’ investorsAn investor being an individual who has invested a substantial amount in a UK based business. This may be accelerated to apply after 3 years if the investment is considered large enough.
Tier 1 Exceptional talentA worker that has skills that are essential to the business.
Tier 2 WorkersA person that has been living and working in the UK for a minimum of 5 years under a Tier 2 visa.
PBS dependantsDependent children under the age of 18 may apply using the same Set O form as their parent. The dependent child/children that are applying on the form will also need to be present in the UK at the time of application in order to qualify.

Children over the age of 18 must apply individually and pay a separate fee with their application.

Employment not requiring a work permitIf you are an EU/EEA or Swiss National legally working in the UK without a visa, and do not require a work permit to work in the UK, you may use the set O form to apply for ILR.
Overseas business representativesA person who is working in the UK to establish a branch of an overseas based company as an overseas business representative.
UK AncestryA person that has at least one grandparent that was born in the UK and in is in the UK under the ancestry route.
Retired person of independent meansA retired person who is lawfully in the UK, financially independent and able to support themselves and any dependants.
Bereaved partner

 

Your partner must either have been a British Citizen or had indefinite leave to remain and you intend to remain in the UK after their passing.

The Set M form is for a partner, parent or child of a person who is already settled in the UK or a British citizen, who wishes to apply for UK indefinite leave to remain (ILR).

How long is Indefinite leave to remain processing?

UKVCAS operates standards for application processing, starting from the date the application is received.

Applicants applying from within the UK for indefinite leave to remain can expect to wait up to six months for a decision on their application.

 

Is there premium processing for ILR?

UKVCAS offer an ILR priority application processing service to give you a decision within 5 working days of your appointment. It costs £500, in addition to the application fees.

Under the super priority service, you can receive a decision by the end of the next working day after your UKVCAS appointment, or within 2 working days if your appointment is on a weekend. This service costs £800 over and above the normal application fees.

For the purposes of processing times, working days are classed as Monday to Friday and do not include bank holidays. Super priority appointments on a weekend are treated as having taken place on the next working day, ie the following Monday, or in the case of a bank holiday, the Tuesday.

 

What if the application is refused?

If your application has been refused, it will be important to understand the reasons why before deciding on your next steps. For example, if there was an error in completing the form, if you paid an incorrect fee or if you were refused on discretionary grounds.

If you choose to make a new application, ensure your new submission addresses the previous grounds for refusal.

Can indefinite leave to remain expire or be lost?

While indefinite leave to remain is granted on a permanent and indefinite basis, there are circumstances where the status can be lost or withdrawn.

If you are out of the UK for a period of more than two years, you will lose your ILR status. To return to the UK to settle, you will need to make an application for a Resident Return visa for your ILR to be reinstated. You will need to make this application before you travel to the UK.

If you are travelling to the UK for a reason other than to resettle, you will have to apply for the appropriate visa.

ILR may also be revoked if you commit an offence that could lead to you being deported from the UK, or for reasons of national security.

 

ILR for Tier 1 investor

Tier 1 investor visa holders can become eligible for fast-tracked settlement where they make qualifying investments in the UK. 

 

 Investment amount Qualifying period
£2 millionILR after 5 years
£5 millionILR after 3 years
£10 millionILR after 2 years

Applicants who do not meet the requirements for the accelerated route for indefinite leave to remain can submit an application for further leave at the end of their initial period of leave to enter or remain.

Spouse visa to ILR

Spouse visa holders become eligible to apply for indefinite leave to remain after two grants of leave as a spouse and where they meet the ILR requirements. This includes meeting the minimum income requirement of £18,600 (rising with every child dependent), passing the Lifer in the UK test and satisfying the English language requirement, not having breached UK immigration rules and no immigration law in the UK or abroad has been broken

As a spouse, you can apply to naturalise as a British citizen as soon as you are granted ILR.

 

ILR after divorce

If you are UK spouse visa holder, your UK immigration status will be affected if you divorce or your civil partnership is dissolved.

You will be under a duty to notify the Home Office of the relationship breakdown and should you wish to remain in the UK, you will need to seek alternative route as you no longer meet the requirements of the spouse visa.

Options could include applying for indefinite leave to remain as the parent of a British child or a child with either ILR or permanent residence, provided you can prove you have parental responsibility for the child, or applying for settlement under the long residence route if you have lived in the UK with lawful status for at least ten years.

You may also consider retained rights of residence where you were married for at least 3 years to an EEA national who exercised their Treaty rights in the UK, and you have spent at least 12 months living in the UK.

Alternatively, if you are a skilled worker and can find an employer to sponsor you, you may be able to apply for the Tier 2 visa.

Indefinite leave to remain FAQs

indefinite leave to remain faqs
indefinite leave to remain faqs

When can I 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 be eligible to apply 28 days prior the issue date on the visa.

I’m a Tier 2 visa holder – when 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.

Is ILR the same as right of abode?

The right of abode and ILR both grant to qualifying individuals the right to live in the UK free from immigration control and restrictions. However, the right of abode applies only to British citizens and qualifying Commonwealth nationals.

How long is indefinite leave to remain valid for?

Indefinite leave to remain is without time limit but can be lost if the holder is out of the UK for more than two years, for reasons of national security or if the holder is being deported following a conviction.

I have criminal convictions, will this affect my application?

Previous offences and convictions are likely to affect your application, although this does depend upon the type of conviction or offence. advise as to when a conviction will become spent and when it is possible to apply.

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

EEA nationals have until December 2020 to apply under the Settlement Scheme to confirm their lawful status in the UK.

Do I need a biometric residence permit to prove ILR status?

If you are successful in being granted ILR, you will be issued a biometric residence permit as evidence of your UK immigration status. If you are applying for a resident return visa after more than two years out of the country, the BRP can be used as proof of your former ILR status.

Can you claim benefits with ILR?

As you hold settled status in the UK, you are entitled to access public benefits.

I don’t qualify yet for ILR, what are my options to extend my stay in the UK?

If you do not yet qualify for ILR you may be able to extend your existing visa temporarily by applying for ‘further leave to remain’. This will depend on your current visa class. You must however make your application to extend your stay before your existing permission expires.

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