A person is eligible to apply for a settlement visa or also known as indefinite leave to remain (ILR), once they have either completed 5 years or 10 years of continuous residency under each of the categories as listed on Appendix FM Immigration Rules HC395.
The Home Office announces “Statement of Changes” throughout the year, so you should familiarise yourself with any planned changes prior to making an application for indefinite leave to remain. Following the new Home Office digital system, one of the most common grounds of invalidation of an indefinite leave to remain application was the failure of using expired visa forms.
An application form are subject to changes and under the Immigration Act, an old visa form was only valid for 21 days following an introduction of the new visa form. However this is now not the case and you must choose to complete the correct application form as this would provide the Home Office your reasons to apply for indefinite leave to remain.
Home Office approach when considering an indefinite leave to remain applications (ILR)
Over the years, the Home Office have changed their approach towards an indefinite leave to remain application and how they must consider each & every applications when lodged. Following case law developments, all or most indefinite leave to remain application are considered case by case basis. This is because the Home Office must approach all applications through a two-stage approach and in their decision letter; they should explain how they have arrived to their reasoning.
Firstly, the indefinite leave to remain application must be considered in line with the published guidelines as set out under Appendix FM Immigration Rules. When considering the application, the Home Office Official must check whether you meet the general, suitability and eligibility requirements of the application route.
If the above fails, then stage two is considered by the Home Office. Consideration based on the evidences, legal representation & any written statements forms part of the factual matrix to the application. This may give rise to exceptional circumstances which would breach a person’s Article 8 ECHR rights. If the Home Office does not exercise any discretion, it must explain their reasons why and whether any other forms of leave to remain could be granted to the person who has applied for indefinite leave to remain.
The requirements for an indefinite leave to remain application (ILR)
In summary, the following requirements must be met by a person who wishes to apply for the settlement visa and this must be demonstrated by providing the specified evidences as set out by Appendix FM of the Immigration Rules.
A person holding a visa with a view to settle in 5 years and 10 years, will need to hold that type of leave throughout their periods of residency prior lodging the indefinite leave to remain application.
Suitability for indefinite leave to remain. This is a key element to the application and when considering this part, the Home Office must be satisfied that you are a person of good character.
When an application is being considered, protecting national security, public safety and the economic well being of the UK is paramount to the application. An application must demonstrate through their residency and behaviour that they have not posed any risks to the UK. This is set out under Part 5A of the Nationality, Immigration and Asylum Act 2002.
You must complete your continuous residency either under the 5 years or 10 years route to settlement.
Both you and your partner must provide evidences to confirm that you are in a genuine & subsisting relationship. You must also provide evidences which demonstrate that you & your partner intend to live together permanently.
You need to demonstrate that UK is your principle home. Evidences of your absences from the UK will demonstrate this.
The financial test or adequacy test is required to be met. This depends on whether you have any dependants which are also taken into consideration.
Having adequate accommodation for you, your partner and any dependants.
You need to meet the knowledge of life requirements and unless exempted from the English language test, you need to meet the requirements.
Absences for Spouse Visa ILR application
Appendix FM & Part 8 of the Immigration Rules HC395 does not contain the details related to the absences and what is permitted or not. In most other categories, which includes the work permit, and point based migrants, they must not exceed 180 days in a 12 months period, for each of the periods of residency in the UK. However, it still requires an Applicant to explain with evidences, as to the reasons of the absences.
Now coming back to the absences in relation to the application when someone applies under Appendix FM/Part 8 of the Immigration Rules, you need to demonstrate your connections to the UK and any absences from the UK must be justified. It further needs to prove that you and your partner intend to live together permanently.
Where a person spends majority of their time outside of the UK, this could raise issues in the application, however in all cases, it would be considered on a case by case as well as the factual evidences required to support the matter in hand. For example, your absence may be related to providing personal care to your parents as there were no other close relatives to provide this and in that case, evidences would be required to support this.
Meeting the financial requirements under Appendix FM for ILR
At the time of applying for indefinite leave to remain (ILR), you & your partner will need to demonstrate that the financial test is being met. Those under the transitional arrangements will need to demonstrate that they meet the financial adequacy test.
Where you are applying under the current rules, you and your partner will need to show that the financial test of £18,600 is being met. For the first dependent child, it would be £3,600 and then subsequent dependent children would be at £2,400 for each child.
To meet the financial requirements of the indefinite leave to remain application, you can meet this through employment, self-employment, non-employment income such as rental income, pension and cash savings. In all cases, this must cover the respective periods and the requirements are clearly set out under Appendix FM Immigration Rules.
Adequate accommodation under Appendix FM for ILR
This is an important element to the application and considers the public interest argument, given that once ILR is granted; you can seek help from the local authority for housing and places the burden into the State.
Like the previous applications you have made, you must make sure that both you & your partner have one room exclusive use. So for example, living with family members is not an issue in hand, as long as there are sufficient space in the household and the home is not overcrowding.
Intending to live together following the ILR being granted
A common ground of refusal because if the Home Office does not accept that the relationship is genuine & subsisting with the intention to live together permanently, it is likely that the application will be refused.
There are a number of indicators when they consider this part of the application. For example, there would be a requirement to show evidences that you have, and will continue to live together at the same household. Further to that, there is an expectation that if both you & your partner are employed, they will need to see that you share financial responsibilities and provide evidences to confirm this.
Knowledge of Life & English Language
You must complete both the life in the UK test and also provide evidences related to the B1 English language test.
In some cases, you can seek exemption from the B1 English language test because you hold a UK degree.
There are other ways, whereby you can seek an exemption from the English language test but you need to take legal advice first, prior making the decision to submit that evidence to support your ILR application.
Indefinite leave to remain (ILR) fees
The ILR fees do change frequently, so it is best advised that you check the Home Office website prior making the application. There are extra fees associated for priority visa service including the use of the service centres. You can call us on 0207 237 3388 to confirm the fees or you can send us an email to firstname.lastname@example.org.
Frequently asked questions
You will find this section useful for some frequently asked questions in respect of your indefinite leave to remain application.
How to apply for settlement visa/indefinite leave to remain application
It is important to note that those applying for indefinite leave to remain under Part 8 of the Immigration Rules, which is also referred as part of the transitional arrangements, must check and ensure they meet the requirements for the settlement visa at the date of application.
Those who have either moved to the Appendix FM Immigration Rules category or have applied post 9th July 2019 will know that there are stricter requirements to apply for the settlement visa. The application is usually completed online and you must select the settlement route for the ILR.
Definition of continuous residency
In order to make your application for indefinite leave to remain, you must complete either 60 months or 120 months in the correct category for a continuous period. You will not be permitted to combine periods to meet the policy under the 60 months category.
If you delayed your entry to the UK for more than 3 months
Usually, the Home Office includes the additional 3 months if you apply for entry clearance as additional periods however there can be administrative errors, so you need to check this during the first period of your leave to enter. If there is an error, contact must be made to the visa unit, so they can make relevant amendments.
Where you have delayed your entry for more than 3 months, it is likely that you will need to extend your leave to remain, so that you can complete a 60 or 120 months period of continuous residency in the UK. We advise that if there was delayed entry, you should take legal advice prior making an application.
Switching from another category and applying for ILR
Those who have switched into the route under Appendix FM of the Immigration Rules cannot combine the periods of residency to complete either the 5 years or the 10 years route to settlement. However it may be possible to apply under the long residency requirements once you have completed 10 years of residency if you have a mixture of various categories as long as there is a continuous periods of residency.
The visa processing times for indefinite leave to remain applications
As part of the application for ILR, the Home Office does a number of security checks and if you apply under the standard route, the decision could take up to 180 days. However, where you chose to apply under the priority service, a decision is usually made within 24 hours of the submission.
Does an ILR visa have an expiry date?
ILR is usually issued through the use of the BRP card for a period of 10 years and this is renewed through an application. It does not mean, that you are required to re-apply for the ILR but you would be renewing the card.
Trusting ICS Legal with your ILR application?
We appreciate the diverse challenges we face from 'No Win No Fee firms and 100% success rates'. ICS Legal are not in the business to provide such promises, after all we are not the Home Office. Our trust with you is based on conversation, in spite of everything and above all you are buying our expertise. Speaking to us will give you the comfort and satisfaction that we are the right Migration Partner for you.
We have been part of the changes and will continue to be part of this, as we continue to support our Clients through their ILR application. You can contact us on 0207 237 3388 to get more information on how we can help you.
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