Your application for permanent residence, otherwise known as settlement or indefinite leave to remain (ILR), is the culmination of any overseas resident’s journey in the UK. You will of course need to meet the visa route-specific requirements in order to qualify for ILR in your particular visa category, which are not discussed here. There are however a number of common rules you must (in most cases) meet in order to achieve settlement; here we highlight and discuss the most important of these.

1.        Know your qualifying period

Most of the UK’s visa routes have a 5-year qualifying period for settlement. Some are shorter – notably the Global Talent (Exceptional Talent, not Exceptional Promise) and Innovator Founder categories at 3 years. Some are longer – for example the 10-year long residence route. It is important to remember that your permission to stay in the UK must be both continuous and lawful for the relevant period.

This can catch people out – for example, someone granted leave as a partner of a settled person in the 5-year route, who is then granted an extension of stay in the 10-year route (eg because they couldn’t meet the financial requirement at point of application) cannot apply for ILR after 5 years’ total residence. Instead, they must either switch back into the 5-year route and start their qualifying residence again, or wait to complete 10 years (which can be with a combination of 5- and 10-year leave to enter or remain).

2.        Do your dependants have to meet the qualifying period too?

There are two key points here: first, most partners must meet it; second, most child dependants do not.

Looking at partners first, in the vast majority of cases it is a yes – they must also reside continuously and lawfully in the UK for their specified qualifying period. Note here that accelerated – 3 year – settlement is not available for any dependants (partners and children) in the Global Talent and Innovator Founder routes; they must wait 5 years. This is important to remember when the main applicant is considering what initial period of leave to apply for in these accelerated visa categories. An application for 5 years – despite having the option to settle after 3 – may be a good idea if you have family members, in order to keep everyone in line. The flipside here is the need for a main applicant – possibly pointlessly – to pay for 5 years’ immigration health surcharge instead of 3, and pay a higher visa fee than may be necessary.

The following routes do not carry a residence requirement for dependent partners:

(a)     Representative of an overseas business

(b)    UK Ancestry

For PBS routes, although partners are still required to complete the 5-year residence qualifying period, their absences during period of permission granted under the Immigration Rules in place before January 2018  can be overlooked.

As for children, they are not subject to a residence requirement, except possibly in the Hong Kong BNO route, where the Rules are worded ambiguously.

3.        Past compliance with the terms of your visa

It may seem obvious, but if you have resided in the UK not in accordance with the terms of your grant of leave, this may come back to bite you. The Home Office does not routinely check this, but it can arise in the context of settlement applications.

A common example would be a partner of a settled or British person whose relationship has broken down prior to their completing 5 years’ residence. When applying to settle, you must confirm (and ideally provide evidence) that you live with your partner and intend to continue to do so permanently in the UK. If you are separated this will be problematic. Past, temporary separations will probably be fine – unless your settled partner has reported this to the Home Office, in which case you have probably been contacted about your status already.

Similarly, if you are a sponsored worker who hasn’t remained in post or whose employment hasn’t been fully compliant with your stated salary and hours stated, while this would normally have been the subject of reporting by your employer, it could be a problem if it hasn’t.

4.        Watch your absences

If your settlement application is subject to a residence requirement, you must consider how you meet all the requirements of Appendix Continuous Residence to the Immigration Rules. For the majority, there is a standard 180-day limit on absences in any 12-month period during your ILR qualifying residence. Calculating this can be tricky – it’s now done on a rolling basis, rather than for example a calendar year. If you instruct Latitude Law to handle your settlement application we use a spreadsheet that calculates absences precisely.  Note too that the days you travel overseas do not count towards absences – only full days outside the UK do.

Note also that partners of settled persons and British citizens are not subject to the 180-day rule; absences should however be monitored, in the context of proving that you intend to live permanently in the UK with your partner.  Travelling together is preferable to travelling separately.

Also worth remembering, if you are looking to apply for British citizenship, are the stricter absence requirements for that purpose; broadly, you are allowed 90 days per year abroad in your 3- or 5-year qualifying period, although there is some discretion available in this regard if you meet all other requirements for naturalisation or registration.

5.        Time spent in Crown Dependencies or in HM armed forces

Time spent in the Channel Islands and Isle of Man does count towards your qualifying residence, provided that your most recent grant of permission came from the UK authorities. Military service abroad, understandably, is disregarded for absence purposes.

6.        What if I have criminal convictions, including motoring offences?

All applicants for ILR must satisfy suitability rules, which include reference to criminal convictions. These can be complex, but key takeaways are:

(a)     Your application will be refused if you have been convicted of an offence in the UK or overseas and have received a custodial sentence of 12 months or more; if you are deemed a “persistent offender”, or have committed offence(s) which caused serious harm – broadly, those involving drugs, sex or violence.

(b)    Your application may be refused if you have a conviction which led to a custodial sentence of less than 12 months, or you received an out-of-court disposal or non-custodial sentence.

With the second category, it’s important to remember this can include cautions and fines, which are disclosable unless spent. As for motoring offences, you will normally receive a fine and points on your licence – these are disclosable, but will not result in denial of ILR unless you demonstrate a pattern of behaviour that labels you a persistent offender. We recommend you seek legal advice before applying if this applies to you.

7.        What breaks continuous lawful residence?

We have already looked at what physical absences from the UK can break your continuous residence; but what about other aspects of this requirement? Serving a custodial prison sentence breaks your continuous residence in most visa categories (not leave granted under Appendix Settlement Family Life or Appendix Private Life, where it is not counted towards, but does not break, your residence). It will also affect your ability to qualify for settlement on suitability grounds as discussed above.

The most common scenario, however, relates to lawful immigration status during your qualifying residence. If you have had an application refused in the past, look carefully at whether, and crucially for how long, you were present in the UK without valid leave. Time spent without permission – that is, as an overstayer – normally breaks continuous residence, but an exemption applies where you have overstayed for less than 14 days and made a subsequent, successful application in that period. This is covered by paragraph 39E of the Immigration Rules, and is an important consideration for those who’ve been refused permission to stay in the past. Again, legal advice is recommended.

8.        Are there special Covid rules in your visa route?

If you were stranded overseas in the early 2020s as a result of the pandemic special absence rules may apply to you.  These exemptions are however limited. In terms of lawful presence in the UK, if you were here without permission between 1 and 31 August 2020 your lawful residence will not be considered broken, but the time must be disregarded when calculating your qualifying period of residence. If your case is covered by paragraph 39E, there is a wider disregard of overstaying between 24 January 2020 and 31 August 2020; this is particularly beneficial, as such overstaying can count towards your qualifying period, rather than just not breaking your continuous residence.

9.        Knowledge of English language and Life in the UK

Broadly, you must at a minimum demonstrate that you are proficient in speaking and listening English to level B1 CEFR, which is intermediate English.  Higher levels are required for some visa routes – sponsored workers, for example, who must have met the B1 level across reading and writing too, and ministers of religion who must be at level B2 from the outset of their leave in that category.

If you met the B1 threshold in a previous, successful application you do not need to provide new evidence of this when you apply for settlement. You can rely on an old test – even on that has expired.

The Life in the UK test brings a special type of joy to settlement applicants; it can be passed at any time before you apply, as it carries no expiry date.  Remember it applies to adult (over 18) applicants, including children who were under 18 when they were first granted leave as dependants.

Exemptions to both the English and Life in the UK requirements exist for applicants 65 and over, or those with an evidenced disability or mental condition. There is also a 15-year “longstop” exemption if you are simply unable to pass either test.

10.  Special rules for 10-year long residence applicants

The Home Office has in recent years sought to tighten the rules an applicant must meet to qualify for ILR on the basis of 10 years’ continuous lawful residence. Of particular note are the fact that time as a visitor, short-term student, seasonal worker and under the Ukraine Schemes does not count. In similar vein, time on temporary admission or immigration bail cannot be counted.

A body of case law has developed around the impact of overstaying on a 10-year application; this is discussed in our blog here.

Finally, it is a requirement that you must have been in your current visa category for at least 12 months when applying in the 10-year route.

Call Latitude Law today on 0300 131 6767 or fill out our enquiry form and we will get straight back to you. Let our legal experts take the uncertainty out of the indefinite leave to remain (ILR) application so you can start your successful journey towards residency in the UK today.