If you are a citizen of a non-European Economic Area (EEA) country or Switzerland, you will need to apply for leave to remain to hold lawful immigration status to enter the UK, remain here and carry out permissible activities.
What is limited leave to remain?
Non-EEA nationals are subject to UK immigration rules. To enter the UK for a limited period of time, you will need to apply for limited leave to remain. Ordinarily, this would be by way of a visa application.
Limited leave to remain requires you to depart the UK at the end of the specified visa period, or to make a further application to the Home Office, through either an extension, further leave or indefinite leave to remain, to ensure you retain lawful immigration status.
Under limited leave to remain, you will have to meet the conditions of your visa and a number of restrictions will apply, such as having no recourse to public funds while in the UK.
What is indefinite leave to remain?
Non-EEA nationals with indefinite leave to remain (often called ‘settled status’) have no time limit and and usually no conditions on their right to stay in the UK. If this is your immigration status, you have broadly the same rights and entitlements to services as UK citizens and can apply for welfare benefits and tax credits.
The exception is if your right to remain was awarded as a result of another person formally agreeing to maintain and accommodate you. In this case, you will be excluded from some benefits for five years.
While holders of certain visa types, such as visitors or short-term students, will be expected to eventually return home, some categories of limited leave may lead to settled status in the UK. Settled status gives the holder permission to stay in the UK on a permanent basis. This is known as indefinite leave to remain.
What is the difference between limited and indefinite leave to remain?
Limited leave to remain allows you to enter and stay in the UK for a specified period of time, while indefinite leave to remain will provide you with permission to permanently live and work in the UK. There are, however, other differences that go beyond simple timescales.
Limited leave to remain is usually granted on the condition that you maintain and accommodate yourself, and any dependants, without recourse to public funds. This means that for the duration of your stay in the UK you are likely to be excluded from any welfare benefits, as well as most forms of local authority housing and homelessness assistance.
As the holder of limited leave, other conditions may also be imposed as part of your permission to remain in the UK including, for example, a condition restricting your employment or your studies.
In contrast, the holder of indefinite leave to remain will typically be free from immigration restrictions, and will broadly have the same rights and entitlements to services and welfare benefits as a UK citizen.
Furthermore, having held indefinite leave to remain for an additional qualifying period, an applicant with settled status may be eligible to apply for British citizenship by way of naturalisation.
What categories of leave are available?
There are several different categories of leave to remain depending on why you want to come to or stay in the UK. However, the 5-tier points based system is the main UK immigration route for foreign migrants from outside the EEA and Switzerland wanting to work, train or study in the UK.
Tier 1 of the points based system is for high-value migrants such as investors or entrepreneurs, while Tier 2 is the primary immigration route for skilled workers with a job offer in the UK. Tier 4 is for foreign students and Tier 5 enables young overseas nationals to experience life and culture in the UK. It also permits workers to undertake short-term or temporary employment.
Please note that Tier 3, designed for unskilled workers filling temporary labour shortages, is currently suspended. There are, however, several other categories of leave to remain, including applying as a points based system dependant. This can include a spouse, civil partner, unmarried or same sex partner.
Am I eligible to apply for leave to remain?
To be eligible to apply for limited leave to remain under the points based system, you must meet the full requirements of the Immigration Rules and accrue a minimum number of points determined by your particular visa category.
In many cases, you will be required to satisfy both an English language and maintenance requirement. These two requirements are explained in further detail below:
- The English requirement – unless you are a national of a majority English-speaking country, typically you will need to satisfy the Home Office of your knowledge of English. You will either need to provide evidence of an academic qualification that was taught in English and is recognised as being equivalent to a UK bachelors degree, masters degree or PhD, or you will need to pass an approved English test.
- The maintenance requirement – you will also need to satisfy the Home Office of your ability to accommodate and support yourself on arrival in the UK. Here, you will either need to prove that you have a certain amount of personal savings in your bank account for a specified number of days before you apply, or have your work sponsor guarantee financial support on your behalf.
To be eligible for indefinite leave to remain, applicants must have resided in the UK for a qualifying period of time. This will depend on an applicant’s existing immigration category and ability to meet all other relevant rules in place.
In most cases, applicants will also be required to demonstrate their knowledge of English language and life in the UK, ie; the KoLL requirement.
When can I apply for further leave to remain?
If you are applying for further leave to remain you should do so prior to expiry of your existing permission to stay. It is an offence for any holder of leave to remain to knowingly stay in the UK beyond the time limit permitted by their visa. It is also an offence to fail to comply with a condition or requirement imposed as part of your permission to be in the UK.
By staying beyond the expiry of your visa, or otherwise breaching your leave to remain conditions, you will be at risk of removal from the UK, refusal of further leave or even criminal prosecution. Both these types of offences are punishable by way of a hefty fine and/or a term of imprisonment.
If, on the other hand, you submit a valid application prior to the expiry of your existing leave, the terms and conditions of that leave will continue until a decision is made on your application for further leave to remain.
How do I apply for limited leave to remain?
How you submit your application for leave to remain will depend on whether you are applying from outside or within the UK. You may be able to submit your application online, by post or in person.
If you are applying from within the UK, you can attend a premium service centre where your application may be given same-day consideration. The processing times for leave to remain applications can vary dramatically and guidance should be sought from the Home Office for your specific visa category.
There are a number of practical considerations when applying for leave to remain, from what fee to pay and documents to produce in support, to what questions you may be asked during interview. The purpose of a leave to remain interview is for the Home Office to request further information, verify facts or documentation and/or check that your application is genuine.
When applying for leave to remain, reference should always be made to any specific Home Office guidance relevant to your visa category, in conjunction with the relevant provisions of the Immigration Rules. However, these provisions are subject to constant change and expert legal advice from an immigration specialist may be required.
Do you need advice on your ILR application?
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.