Introduction

Individuals who live in the UK for an extended period of time, either 10 years with continuous lawful residence, or 14 years without permission, may be eligible to apply for ‘indefinite leave to remain’.

The Rules

The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

• he has had at least 10 years continuous lawful residence in the United Kingdom; or
• he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from the United Kingdom; and
• having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
  • age; and
  • strength of connections in the United Kingdom; and
  • personal history, including character, conduct, associations and employment record; and
  • domestic circumstances; and
  • previous criminal record and the nature of any offence of which the person has been convicted; and
  • compassionate circumstances; and
  • any representations received on the person's behalf; and
• the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application.

Procedure

An application under the Long Residence Rule must be submitted to the UK Border Agency on a prescribed form with the appropriate fee. The application must be accompanied by the applicant’s passport and supporting documentation.

Applications under the 10 year rule can only be made through the postal system and are currently taking approximately 3-6 months to process.

Applications through the 14 year rule can only be made through the postal system and are currently taking approximately 3-5 years to process.

If your application is refused, you will have a right of appeal against the Immigration Officer’s decision which is processed in the UK.

Timing

You should lodge your application one month before the completion of the 10 year or 14 year period.

Introduction

‘Indefinite Leave to Remain’ (ILR) commonly referred to as ‘permanent residence’ or ‘settlement’ status can only be obtained once an individual or in some cases there dependent has spent a qualifying period under one of the categories of the UK immigration rules. These time periods for the most common categories are set out in the table below:

*INdividuals that held HSMP status prior to November 2006 may be eligible for ILR after 4 years in this capacity.

Life in the UK test
All applicants’ including dependents over the age of 18 have to pass a ‘Life in the UK’ test as part of the process.

Procedure
An application for ILR must be submitted to the UK Border Agency prior to an applicant’s permission expiring.

Applications can be submitted either through the postal system which will take a minimum of 13 weeks to process during which time the applicant’s passport must remain with the UKBA (unless required by another UK Government department or the individual’s diplomatic mission), or, through UKBA’s ‘Fast Track’ same day service for which a premium application fee is payable.

UKBA fees for ILR applications are £820 for postal submission or £1020 for Fast Track service.

RLegal have a number of fast track slots available to assist clients with the same day service.

Returning residents
Please note that ILR status can be lost if an individual remains out of the UK for more than 2 years on a single occasion or when it appears that an individual only spends short periods of time to retain their status and does not appear to have made the UK their principal home. This is known as the ‘returning residents’ rule.

Timing

You should lodge your application one month before the completion of the qualifying period.

Introduction

Individuals wishing to enter the UK on the basis of their relationship to a British national or a person present and settled in the UK do not have an automatic right of entry.  Instead it is necessary to apply for a visa to enter the UK in the correct capacity.  Prior entry clearance in this category is mandatory.

The Rules

Fiancé

The requirements to be met by a person seeking leave to enter the UK as a fiancé(e) are that:

(i) the applicant is seeking leave to enter the UK for marriage to a person present and settled in the UK or who is on the same occasion being admitted for settlement; and

(ii) the parties to the proposed marriage have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse after the marriage; and

(iv) adequate maintenance and accommodation without recourse to public funds will be available for the applicant until the date of the marriage; and

(v) there will, after the marriage, be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(vi) the parties will be able after the marriage to maintain themselves and any dependants adequately without recourse to public funds; and

(vii) the applicant holds a valid UK entry clearance (visa) for entry in this capacity.

This visa is issued for six months during which time the applicant should marry his or her fiancé.  An applicant cannot work in the UK whilst on a fiancé visa.  It is not normally possible to extend this type of visa, however, once married, the applicant will be able to apply to change his or her status to “spouse” whilst in the UK.

Spouse

The requirements to be met by a person seeking leave to enter the UK with a view to settlement as the spouse of a person present and settled are that:

(i) (a) the applicant is married to a person present and settled in the UK or who is on the same occasion being admitted for settlement; or

(b) the applicant is married to a person who has a right of abode in the UK or indefinite leave to enter or remain in the UK and is on the same occasion seeking admission to the UK for the purposes of settlement and the parties were married at least 4 years ago, since which time they have been living together outside the UK; and

(ii) the parties to the marriage have met; and

(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vi) the applicant holds a valid UK entry clearance (visa) for entry in this capacity, (if not already in the UK as a fiancé or in a long stay category).

Leave to remain will normally be granted for a period of 24 months during which time the applicant can take employment.  If the applicant continues to meet the requirements of the rules after 24 months, it will be possible to apply for indefinite leave to remain, (ILR or settlement as it is often referred to).

Unmarried partners

The requirements to be met by a person seeking leave to enter the United Kingdom with a view to settlement as the unmarried partner of a person present and settled in the United Kingdom or being admitted on the same occasion for settlement, are that:

(i) (a) the applicant is the unmarried partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement and the parties have been living together in a relationship akin to marriage which has subsisted for two years or more; or

(b) the applicant is the unmarried partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties have been living together outside the United Kingdom in a relationship akin to marriage which has subsisted for 4 years or more; and

(ii) any previous marriage (or similar relationship) by either partner has permanently broken down; and

(iii) the parties are not involved in a consanguineous relationship with one another; and

(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(vi) the parties intend to live together permanently; and

(vii) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

Leave to remain will normally be granted for a period of 24 months during which time the applicant can take employment.  If the applicant continues to meet the requirements of the rules after 24 months, it will be possible to apply for indefinite leave to remain.

Procedure

If the applicant is not presently in the UK, he or she will need to apply for a visa to enter the UK in the correct capacity.  The application should be lodged at the nearest British overseas post authorised to deal with such matters.

CAN I HAVE FREE LEGAL ADVICE?

Immigration Support Agency is a private client firm and does not undertake work under the Legal Aid Scheme.

AN INDIVIDUAL ALREADY HAS A UK CERTIFICATE OF SPONSORSHIP/WORK PERMIT THROUGH A DIFFERENT EMPLOYER – CAN HE WORK FOR OUR COMPANY UNDER THIS?

No. Certificates of Sponsorship/work permits are issued to specific employers for a certain individual to undertake a specific role. It is not possible for a worker to undertake a variety of roles with several different employers under a single work permit. It is therefore necessary for each new employer to apply for permission to employ the individual.

WILL THE CERTIFICATE OF SPONSORSHIP/WORK PERMIT HOLDER NEED ANY OTHER VISAS?

Yes, they will need to obtain a visa from their nearest British visa issuing post before travelling to the UK to take up their employment.

WE ONLY NEED THE INDIVIDUAL TO WORK IN THE UK FOR A MONTH EVERY NOW AND THEN – DO THEY STILL NEED A WORK PERMISSION?

Yes. Whether the foreign worker is needed for one week or five years, they will need to have approved work permission before coming to the UK for that purpose.

If the worker is only coming to the UK to attend meetings or seminars on behalf of an overseas entity, they may be able to enter as a Business Visitor but this would be on the condition that they do not undertake any productive work in the UK.

For those who will be undertaking employment, even for short periods, work permission is needed.

THE WORKER WILL CONTINUE TO BE PAID OVERSEAS – DO WE STILL NEED A CERTIFICATE OF SPONSORSHIP?

Yes. Although a worker's employment in the UK may be administered overseas, they are still technically seen as working in the UK in the eyes of the UK immigration authorities and will therefore require a Certificate of Sponsorship.

WILL THIS CERTIFICATE OF SPONSORSHIP ALLOW THE WORKER TO UNDERTAKE EMPLOYMENT IN THE ISLE OF MAN, THE CHANNEL ISLANDS AND NORTHERN IRELAND?

No. A UK Certificate of Sponsorship will not permit a worker to take up employment in any of these areas. All of the above jurisdictions have their own immigration systems and their own departments who issue permission.

HOW LONG WILL IT TAKE TO GET WORK PERMISSION?

If it is necessary to test the Resident Labour Market, this process can take 28 days. The issue of the Certificate of Sponsorship is instantenous but you should bear in mind that the employee will then need to either obtain a visa to enter the UK under the Points Based System, Tier 2, or leave to remain on the same basis. The processing times for these applications varies greatly depending upon the nature of each application, where in the world it is submitted, etc.

I HOLD A VISITOR VISA, CAN I GET WORK PERMISSION IN THE UK?

No. It will be necessary for you to leave the UK and apply to return under PBS Tier 2 once you have been issued with a Certificate of Sponsorship.