Non-EEA nationals who have lived legally in the UK for a reasonable length of time are allowed to apply for permission to stay permanently. This permission, if granted, is called ‘indefinite leave to remain’ and is often referred to by its initials – ILR. A foreign husband, wife, de facto or civil partner of a British citizen or UK legal permanent resident (right of abode or ILR holder) may be eligible to apply for residence to settle in the UK on an indefinite basis provided all the relevant criteria are met. ILR gives the holder permission to stay in the UK without any restrictions. However, ILR status can be rescinded and in this respect is very different from naturalisation. For example, ILR can be revoked if obtained fraudulently; if the applicant moves away from the UK for more than two years or receives a deportation order in respect of a criminal conviction.
ILR qualifying period
An application to settle in the UK can be made by anyone who has temporary permission to remain in the UK on the grounds that they are the husband, wife, unmarried or civil partner of a British citizen or a person settled here. Anyone who has lived in the UK for five years in this category can apply, but the main requirement to qualify for ILR based on de facto relationship, marriage or civil partnership is that the couple are still planning to live together (and are still married or in a civil partnership, if applicable). It should be noted that the qualifying period is only two years if the initial spouse or partner visa application was made prior to 9 July 2012. The new immigration rules that came into effect on 9 July 2012, amongst other things, changed the length of time that family members must be in the UK before applying for settlement. Anyone who applied for a UK spouse or partner visa after that date will need to have been in the UK for five years before they can apply for permanent residency. This probationary period will be made up of two separate periods of 30 months.
When to apply for ILR
ILR applications must be made before the current permission to remain expires whilst the applicant is resident in the UK. It is possible to apply for settlement up to 28 days before the end of the qualifying period. If the applicant initially enters the UK as a fiancee or proposed civil partner and a marriage or civil partnership ceremony takes place within six months as required by the UK immigration rules, the qualifying period begins on the date temporary permission to remain in the UK (further leave to remain or FLRm) is first granted by UK Visas & Immigration (formerly the UK Border Agency). If the foreign partner or spouse was granted a settlement visa outside the UK, the date on which the applicant arrived in the UK should be taken into account when calculating the time spent in the UK. Delayed entry may affect eligibility to apply for ILR in the future. If the applicant entered the UK more than three months after their initial settlement visa was granted, the permission to stay in the UK will expire before the end of the qualifying period and in that case a costly extension may be required before an application for ILR is made. Therefore, it is advisable to make the initial entry within three months from the date the marriage or partner visa is granted by the British Consulate, Embassy or High Commission overseas.
Time spent outside the UK
It is possible for temporary partner visa holders to leave the UK for extended periods as each ILR case is judged on its merits. Much will depend on the time spent out of the country; the reason for absence and whether the marriage continued during that time. This means that people who spend some time abroad due to their work commitments will not be unfairly treated by the examining UK Visas & Immigration (UKVI) officials when making a final decision on their ILR application. It should be noted, however, that applications for naturalisation are affected by long absences. These should not be more than a total of 270 days in the three years preceding the date of applying for citizenship and in the last 12 months, absences should not be more than a total of 90 days. There are some exceptions to this rule which can be applied depending on the individual circumstances.
KOLL requirement after 28 October 2013
All applicants, irrespective of other requirements, must prove that they have a good working knowledge of the English language and life in the UK. This applies to everyone between 18 and 64 years of age. Changes made to the immigration rules on 28 October 2013 mean that applicants for settlement or naturalisation as a British citizen must prove that they can meet the new criteria for approval. In addition to passing the Life in the UK test, those applying for ILR or British citizenship will need to have a speaking and listening qualification in English at B1 CEFR (Common European Framework of Reference for Languages) level or higher, unless they are a citizen or national of a majority English language speaking country as defined by UK Visas & Immigration (UKVI). Equivalent academic qualifications taught in English will also be considered.
How to apply for ILR to settle in the UK
ILR applications may be made in person or by post. A same day service is available at the public enquiry offices (PEOs) although this applies only to straightforward cases which will not require further enquiries. An appointment is always necessary and both partners should attend. If this is not possible, the British citizen or UK permanent resident partner must provide a detailed letter confirming that they are willing to sponsor the applicant for permanent residence in the UK. The letter must be signed and dated and must contain a phone number where the person can be contacted for the duration of the appointment and afterwards. When applying, whether by post or in person, fingerprints and one passport size photograph are needed to create the biometric information which is required to obtain a biometric residence permit (BRP), which confirms immigration status and entitlements. This includes any dependants applying for ILR along with the principal applicant.
ILR processing time
UK Visas & Immigration (UKVI) aim to resolve 95% of postal applications within six months and 90% of applications made in person are decided on the same day. Any pre-existing status conditions, including permission to work in the UK, remain in force while the settlement (ILR) application is being processed. This applies even if the decision-making process takes longer than anticipated and the applicant’s current spousal or partner visa expires during the application process. It is not advisable to make any overseas travel arrangements, such as booking non-refundable flights, until after the ILR application is approved and biometric residence permit (BRP) has been received in the post.