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Spouse Visa to ILR (Remain in the UK)

If you are looking to live in the UK permanently as the spouse or partner of a British citizen or someone with UK settled status, you will need to apply for indefinite leave to remain (ILR).

The following guide looks at frequently asked questions about the Home Office application process of switching from the spouse visa to ILR.

 

How do you switch from a spouse visa to ILR?

After 5 years in the UK with a spouse visa, you become eligible to apply for ILR.

ILR status will give you permission to live and work in the UK on an indefinite basis, free from any immigration restrictions. Moreover, having been granted an ILR spouse visa, this will put you on the pathway to becoming naturalised as a British citizen, whereby you will become entitled to the same rights as other UK citizens.

You will be eligible to apply for an ILR spouse visa if your current UK visa is based on you being the spouse or civil partner of any one of the following:

  • A British citizen
  • A person settled in the UK with indefinite leave to remain or proof of permanent residence, or
  • A person with refugee leave or who has been granted humanitarian protection

However, to qualify, both you and your spouse or civil partner must be present in the UK. You must also be able to show that you have been living together since your last visa renewal and intend to live together permanently after you apply for indefinite leave to remain. In other words, you must still be in a genuine and subsisting relationship with your spouse or civil partner.

You can also apply for this type of visa as the unmarried or same-sex partner of any person permanently settled in the UK, although unmarried partners will need to show that they have been living together in a relationship akin to a marriage or civil partnership for at least two years prior to their application.

An application for indefinite leave to remain will be based on your individual circumstances, where being married to, or in a civil partnership with, a British citizen or someone settled in the UK does not necessarily guarantee the grant of an ILR spouse visa.

Even if you satisfy the eligibility criteria for indefinite leave to remain, your application may not be approved if you fail to meet any of the suitability criteria. In particular, your application may be refused if, for example:

  • You have a recent criminal conviction or have been convicted of a serious criminal offence for which you received a custodial sentence
  • You have made false representations, provided false documentation or failed to disclose a material fact in relation to your application
  • You have failed to pay any charges due to the NHS, where the value of any outstanding charges exceeds £500
  • You are the subject of a deportation order

It is also important to ensure that you submit all of the necessary documents in support of your application for an ILR spouse visa, as your application could also be rejected on the basis of missing or incomplete documentation.

Given the complexity of ILR spouse visa applications, it is always best to seek expert legal advice from an immigration specialist who can help you to collate the right documentation and minimise the risk of any errors or omissions.

 

Spouse visa to ILR criteria

To apply for an ILR spouse visa, you will be required to satisfy various eligibility criteria. These include a residence requirement, a financial requirement, an accommodation requirement and the KoLL requirement.

The residence requirement
Under the residence requirement, typically you must have had leave to remain as the spouse or partner of a British citizen or someone settled in the UK for a total period of 60 months. This is known as the five-year settlement route.

In calculating this period, any previous period of leave as the fiancé(e) or proposed civil partner of a British citizen or someone settled in the UK will be excluded. Further, it is not possible to combine the time spent with two different partners, where any leave granted on the basis of a previous partner cannot be added to the current leave for the purpose of accruing the relevant five years.

In relation to allowable absences from the UK during the qualifying period, in contrast to other immigration categories that prohibit absences of more than 180 days in any 12-month period, there is no maximum allowance here. That said, excessive or lengthy absences could easily undermine any necessary finding that you intend to permanently live together with your spouse or civil partner.

As such, where there have been limited periods of time spent outside the UK, this must be for good reason and the reason must be consistent with the intention to live together permanently in the UK. This may include periods overseas in connection with your work or that of your partner, as well as for holidays, training or even study, although each case will be decided on its merits.

The financial requirement
Under the financial requirement, typically you will need to demonstrate that you and your partner can support yourselves, as well as any dependent children, by way of a minimum income threshold.

As a single applicant, this threshold is set at £18,600. In circumstances where you have one dependent child you will need to show a minimum income of £22,400 a year, with an extra £2,400 a year for each additional child.

When determining the minimum income threshold you will need to include all your dependant children under 18, even if you do not add them to your application. However, this threshold can be met by way of a combined annual income with your spouse or partner, and through a number of different income sources or even cash savings.

In the event that your spouse or civil partner is in receipt of a specified welfare benefit, such as Attendance Allowance, you will only need to show that you can adequately maintain you and any dependents living with you without recourse to public funds, in other words, you have sufficient funds to house and support yourselves.

The accommodation requirement
Under the accommodation requirement, regardless of whether you are required to meet the minimum income threshold or adequate maintenance requirement as set out above, you will also need to show that there will be adequate accommodation available to you and any dependents living with you.

In particular, this will need to be accommodation available to the family, including family members who are not included in the application but who live in the same household. Further, it must be accommodation that the family owns or occupies exclusively, and without recourse to public funds.

Any accommodation will not be regarded as adequate if it is, or will be, overcrowded or, alternatively, if it contravenes public health regulations.

The KoLL requirement
Under the KoLL requirement, you will be required to show sufficient ‘knowledge of the English language and about life in the UK’ (KoLL). In this way, you can demonstrate a commitment to respect the UK’s laws, values and traditions.

Unless you are a national of a majority English speaking country, you can prove sufficient knowledge of the English language through either a degree or academic qualification that was taught or researched in English, and your qualification is recognised as being equivalent to a UK bachelor’s degree or higher, or by taking an approved English language test in speaking and listening.

Further, unless exempt, you may also need to pass a ‘Life in the UK’ test at an approved test centre. You will be exempt from the KoLL requirement if, for example, you are aged under 18 or over 65, or you have a physical or mental condition that prevents you from meeting this requirement.

 

ILR application process for spouse visa holders

When applying for an ILR spouse visa under the five-year route, namely, where you have spent 60 months with leave to remain as the spouse or partner of someone present and settled in the UK, you will need to submit online Form SET (M), together with your application fee and supporting documentation.

If you are a single applicant the fee is £2389, although there is an additional fee for each dependant applying with you. You can include a child in your ILR spouse visa application in circumstances where they have permission to be in the UK as your dependant, they are living with you and your partner, and they are not married, in a civil partnership or otherwise living an independent life.

You can only include older children in your application if they were aged under 18 when they got permission to be in the UK as your dependant and still do not live an independent life, for example, they have not left home, got married or had children. Further, in these circumstances, they too will need to satisfy the KoLL requirement, unless otherwise exempt.

When applying for an ILR spouse visa you will need to provide a valid passport or other travel document, as well as any existing biometric residence permit. You will also need to provide the following documentation, although this list is by no means exhaustive:

  • Any previous passports or travel documents you have held during your stay in the UK
  • Your spouse or partner’s passport or travel document showing that s/he is present and settled in the UK
  • Evidence of cohabitation with your spouse or partner
  • Evidence of your finances, for example, bank statements and wage slips
  • Evidence of any relevant English language qualifications and your pass certificate for the ‘Life in the UK’ test
  • Evidence in support of any absences from the UK, for example, a letter from your employer or travel documents for any holidays taken

Additional documentation will also be required for any dependents, including their passport or travel documents, their birth or adoption certificates, as well as evidence of where they live and that you play an active role in their upbringing.

Biometric residence permit & ILR

As part of the application process for an ILR spouse visa, you will be required to enrol your biometric information for which you will be charged an additional handling fee of £19.20.

After you submit your application you will be asked to provide your fingerprints and a digital photograph of your face. This is known as your biometric information. This information will be used to provide you with a biometric residence permit (BRP), although you do not have to apply separately for a permit, rather you will get one automatically if your application is approved.

In circumstances where you already have a permit you must provide any existing BRP for the ILR application to be valid and complete.

 

When can a spouse visa holder apply for ILR?

An application for an ILR spouse visa can be made up to 28 days before you reach the qualifying 60-month period, and must be submitted prior to expiry of your existing stay, otherwise you will risk overstaying and being deported.

An application for indefinite leave to remain may be refused if you have overstayed beyond the end of the last period of leave. In certain limited circumstances, a short period of overstaying may be 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.

 

How long is ILR processing?

Having submitted your application for an ILR spouse visa, it could take up to six months to receive a decision from the Home Office, although you will be allowed to stay in the UK pending notification of the outcome, as long as your application was submitted in good time.

Alternatively, you can attend a premium service centre where your application may be given ‘next working day’ consideration, although you will be required to pay an additional fee of £800 for this super priority service.

In cases where supporting documents need to be verified or you are required to attend an interview, for example, if you have a history of criminal or immigration violations, this is likely to delay the process significantly.

 

Need assistance?

UK indefinite leave to remain applications are generally complex – from understanding the Home Office process to getting the timing of your application right and compiling a comprehensive submission and arranging your appointment with UKVCAS, there is so much for applicants to consider to avoid a refused application.

If you have a question or any concerns about making your ILR application or how the timescales work in terms of ILR application processing and decision making, contact us. We can advise on eligibility, building a robust submission and the timings to submit your application.

Spouse visa to ILR FAQs

When can a spouse apply for ILR?

You must have held leave to remain as the spouse or partner of a British citizen or someone settled in the UK for a total period of 60 months before you can apply for ILR.

Can I apply for ILR after 3 years of marriage?

You must have held your spouse visa for at least 5 years before you become eligible for ILR.

When can I apply for British citizenship through marriage?

You can apply to naturalise as a British citizen as soon as you are granted ILR. You will not have to wait 12 months with ILR as the spouse of a British citizen or person with UK settled status.

Can I leave UK after ILR?

You are free to travel in and out of the UK with ILR, but ILR can be lost if you remain out of the country for more than 2 years at a time.

How can DavidsonMorris help?

DavidsonMorris are specialist UK immigration lawyers, helping couples and families live and stay together in the UK. If you need help with your spouse visa to ILR application, contact us.

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