Whether you are trying to figure out how to count your days out of the country, or are ensure as to when your 5 year qualifying period starts, our Q&A ILR should address most of your queries.
Q1 – When does my indefinite leave to remain (ILR / settlement) qualifying period start?
If you switch into a qualifying category within the UK, the qualifying period starts on the day your leave was extended. If you obtained entry clearance abroad, the qualifying period start on the day you entered the UK or the day you were granted your visa providing you entered the UK within 3 months of your visa being endorsed in your passport.
So for instance if you delayed your entry to the UK by 2 months, the UKBA will count the time between you being granted entry clearance and coming to the UK towards the continuous period for ILR.
Q2 – What is the earliest day I can apply for ILR?
No more than 28 days before the 5th anniversary (4th for HSMP issued before 3rd April 06) of your date of arrival / date your visa or leave was endorsed in your passport.
One can apply no earlier than 28 days before the 4th (HSMP before 03-Apr-06) / 5th (other economic migrants) anniversary of either date of entry in the UK (overseas applications) or date of switching (in-country applications) as a economic migrant in a category that leads to settlement. In all cases, one must apply for ILR or for another visa before expiry of current visa.
Q3 – My current leave expires before I complete the qualifying residential period. Can I apply for ILR?
You must apply for ILR before your current leave expires.
Q4 – Who is covered by HSMP Judicial Review?
HSMP filed before 07-Nov-06.
Q5 – I qualify under the HSMP Judicial Review. How does this affect my application for indefinite leave to remain?
1. You do not have to me the point based criteria;
2. Your dependant(s) are exempt from the “(2 year) qualifying residential period” requirement;
3. You (and dependant(s), if any) do not have to take and pass the Life in the UK test.
4. You (and dependant(s), if any) are exempt from new criminality threshold requirement.
Q6 – What is the minimum salary requirements to qualify for indefinite leave to remain?
It will depends on the category you are applying under. Tier 2 migrants must be paid in line with the relevant codes of practice. Tier 1 General migrants must rely on their earnings over a period of 12 months within the 15 months immediately preceding the filing of their application. How much earnings will be required will depend on the date of your initial application.
Q7 – I am a Work Permit holder / Tier 2 migrant. How do I show that my salary is in line with the relevant code of practice?
In addition to a letter of support from your employer, you must provide at least one pay-slip and a corroborating bank statement showing your salary.
Q8 – I am presently a Tier 2 (ICT) migrant. Am I eligible for settlement after having lived and worked in the UK for the required qualifying residential period?
If you entered UK as a WP holder (Intra Company Transferee) and switched to Tier 2 (ICT) at any time, or you applied for Tier 2 (ICT) before 06-Apr-2010, then you are eligible for settlement under current legislation.
Q9 – Will my spouse / partner qualify with me for ILR?
It will depend on when and under which category they filed their initial application.
If the initial application for leave as a dependant was made before 09-Jul-12:
Spouse / partner must be in the UK as “dependant” on the date of the settlement application to be included as a dependant.
For Work Permit holders (pre-PBS) and HSMP Judicial Review migrants covered by HSMP Judicial Review case, all dependants will qualify for ILR along with main applicant irrespective of length of stay in UK and can apply for settlement simultaneously.
For all other economic migrants (Tier 1 (General), Tier 2), (spouse/partner) dependants must have lived with the main applicant in the UK for at least 2 years as their dependant (as a spouse, civil partner or de facto).
If the initial application for leave as a PBS dependant was made after 08-Jul-12:
The PBS dependant will be eligible for settlement only after completing “5 year probationary period as a dependant of the principal migrant”.
Q10 – Do I require P60s for the 5 year period?
P60s are a very reliable source when it comes to demonstrating 5 years of continuous employment and level of earnings. If you no longer have your original P60s you may want to contact the HMRC to obtain duplicates. Payslips may be used as an alternative.
Q11 – Do I need employer letter from my current employer?
For Tier 2 and WP holder, the letter is mandatory. It must be drafted so that it contains all the information required by the guidance.
For HSMP / Tier 1 (General) visa holders, albeit not compulsory the letter can only help.
Q12 – Absences during the 5 year qualifying period – how many days can I spend abroad? How do I calculate the number of days spent abroad?
Maximum allowable days out of UK used to be a total 180 days over 5 years and not more than 90 days in a single trip.
Under the new rules, applicants are allowed up to 180 days for every 12 months of the 5 year qualifying period.
On the face of it, these new rules appear to be much more generous than what was allowed under the previous rules. However it is important to note that each absence will now have to be justified. This may be problematic, especially when an applicant has had several previous employers, some of which may no longer be trading or may no longer have record of the applicant’s absences.
Those who were initially work permit holders but who are now applying for settlement as Tier 1 (General) migrant, also need to provide evidence of their work related absences in both categories of leave.
As it stands only the main applicant has to declare his/her absences.
When counting the days spent out of the UK, ignore the days spent travelling in and out of the country (ie if you went to Madrid on Monday 1st of June and returned on Tuesday 2nd of June, you will have spent Zero day out of the UK).
Any absence from the UK which has exceeded the 180 day limit over one of more of the 12 consecutive month periods will constitute a break of the continuous period. There is no discretion applied to any absences exceeding 180 days in any consecutive 12 month period of the continuous period, even if they are as the results of prolonged business trips or internships.
Q13 – What documentary evidence(s) should I use to prove cohabitation?
Unfortunately the SET (O) form and guidance do not provide a list of acceptable documentation or give any indication as to how many documents should be submitted.
The FLR (M) and SET (M) forms both contain a section listing the documentary evidence accepted by the UKBA as proof of cohabitation.
Q14 – When can I sit my Life in UK test?
Life in the UK test can be taken at any time prior to applying for ILR. It is granted for life (i.e. it does not expire)
However please bear in mind that you will need to allow for at least 2 working days between taking the test and filing at the PEO in person.
Q15 – Does a premium appointment at PEO guarantee same day service?
Although the vast majority of cases are decided on the same day, it is not guaranteed that your application will be case-worked on the day of the appointment.
There may be delays as the result of IT problems at the PEO in which case you may be asked to attend again.
If the caseworker is of the opinion that further checks need to be carried out before a decision can be reached your case will be referred. In these circumstances the process could either take a few weeks or in the worst case scenario as long as a postal application.
If you need further information on how to apply for indefinite leave to remain in the UK, or assistance with the filing of your settlement application via the PEO premium, please contact us. TIMING: For your information to secure a representative premium appointment at the PEO we need 6 to 7 week notice.