Indefinite leave to remain – ILR (settlement) for spouse or partner

Foreign nationals who have been living in the UK legally for at least the last five years may be eligible 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), including EEA nationals with settled or pre-settled status in the UK, may apply for residence to settle in the UK on an indefinite basis, if relevant criteria are met. ILR gives the holder permission to stay in the UK without any restrictions. However, ILR status can be rescinded in some cases and in this respect is very different from naturalisation. For example, ILR can be revoked if obtained fraudulently; if the applicant is absent from the UK for more than two consecutive 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 they can apply for settlement. Anyone who applied for a UK spouse or partner visa after 9 July 2012 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 5-year qualifying period that normally begins when a UK family visa holder arrives in the UK. If the initial partner or spouse visa application is submitted from within the UK, the qualifying period begins when the application is approved. Likewise, 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, 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 ILR application can be submitted the UK Visas and Immigration (UKVI). Therefore, it is advisable to make the initial entry within three months from the date a UK settlement marriage or partner visa is approved by the UKVI.

Time spent outside the UK

It is possible for temporary partner visa holders to leave the UK for extended periods as long absences do not normally affect the outcome of ILR applications. Each ILR application is judged on its own merits, as the UKVI case officers normally take into consideration the reasons for absences and whether the marriage actually subsisted during any periods apart. This means that people who spend some time abroad due to their work pr family commitments for example will not be unfairly treated by the UKVI officials when applying for permanent residence (ILR). It should be noted, however, that long absences do make a difference when it comes to applications for naturalisation, as UK permanent residents who which to apply for citizenship are subject to stricter physical presence requirements. Absences 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 the UK Visas & Immigration (UKVI), or otherwise exempt based on their age or academic achievements. Equivalent academic qualifications taught in English will also be considered.

How to apply for ILR to settle in the UK

The UK Visas & Immigration (UKVI) no longer accept paper ILR applications, as applications must be done online on the official Home Office website. Prior to introducing the new procedure in 2018, the Home Office offered two submission methods. ILR applications could be made in person or by post. A same day service was available at the designated public enquiry offices (PEOs) although this applied only to straightforward cases which did not require further enquiries. Currently ILR applications can only be made online which makes the process somewhat complex, particularly for couples who have no access to a computer or scanner. Preparing the documents for upload is a grueling and time-consuming task, as the UKVI online application platform has certain limitations. Scanning, re-sizing, renaming individual documents and merging them together takes a lot of time. Furthermore, when applying for ILR, fingerprints and one digital photograph of the applicant are needed to create the biometric information. This information is required to obtain a biometric residence permit (BRP), which confirms ILR holder’s 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 standard applications within two to three months and 90% of premium applications are decided on the same day (extra fees apply – £1,000 per person at the moment). Any pre-existing status conditions, including permission to work in the UK, remain in force while the settlement (ILR) application is being processed by the UK Visas and Immigration (UKVI). 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 irrevocable overseas travel arrangements, such as booking non-refundable flights, until after the ILR application is approved, as applicants are not allowed to leave the UK while their application is being considered.