Wednesday, 7 October 2015

Indefinite Leave to Remain (ILR): common myths on obtaining permanent residency in the UK.

We had a post under this name in the beginning of 2014 and it proved very popular, so we decided to update it as it is now autumn 2015.

Myth 1: “Indefinite Leave is ‘indefinite’”. Reality: it is not! You can lose your Indefinite Leave to Remain if you leave the UK for more than 2 years and don’t come back (unless you have very compassionate circumstances why you couldn’t return). This applies to non-EU nationals and also to the EU/EEA nationals who had achieved status of a permanent resident whether applied for that document or not (it is not compulsory to apply). The only way not to lose your status is to become a British Citizen, then you can leave the UK for as long as you need.  

Myth 2: “Everyone needs ILR before applying for British Citizenship”. Reality: even though we often tell this to the clients who are trying to ‘skip’ it and – mistakenly – going straight for naturalisation, the fact is there are exception from this rule. European nationals (including Bulgarian and Romanian) do not have to apply for a document certifying permanent residency (name for ILR under the European law). They achieve this status automatically after 5 years of exercising Treaty rights in the UK, whether they make a formal application or not (they can apply but it will be a voluntary application). Moreover, this exception also applies to the direct family members of EU/EEA citizens, such as to non-EU spouses! It is not conventional to say that, say, an Indian spouse of a Portuguese citizen does not need to apply for ILR, yet this is exactly how the EU law works!

Myth 3 (from 2014 post): “I can apply for ILR after 5 years of living in the UK”. Reality: you can apply for an ILR after 5 years on specified visas only, such as 5 years on Tier 1 General and Tier 2 (General). Or 5 years on an Entrepreneur visa only (not combined with Tier 2 etc). This is because some categories are not even counted for ILR purpose, such as Student/Tier 4, Post-Study Work, most Tier 5 visas and most Tier 2 ICT visas. The only way to qualify for an ILR based on residing in the UK alone is 10 years on any visas (or 20 years if illegal stay is involved).

Myth 4: “I have a Tier 1 (or Tier 2) visa but I married a British citizen since it was issued. I can switch to a Spouse visa (so I could work for any employer) and then apply for ILR after 5 years on a combination of Tier 2 and Spouse visas.” Reality: This is a very common misconception and such application will surely be refused by the Home Office. As above, ILR is based on a number of years on specific visas and there are different ‘routes’. In case of spouses of UK citizens it is 5 years on Spouse visa only (Rules since 9 July 2012). This 5 year qualifying period cannot be combined with time spent on visas not connected to a marriage, such as Tier 2 visas. It is, however, possible to carry on in Tier 1 or 2 route, as applicable, and apply for ILR in your own right, as if you were not married.

Myth 5 (from 2014 post): “I spent 2 years on Tier 1 Post-Study Work visa and 3 years on a Tier 1 Dependant Partner visa. I can now apply for an ILR with my spouse (who spent 5 years on Tier 1 General) because I have spent total of 5 years in the UK, all 5 years in Tier 1 category”. Reality: a main visa, like Tier 1, is a very different thing from a Dependant visa, even if it is the same ‘Tier’ but Dependant. Dependant is dependant, main is main, they cannot be combined (expect in the 10 years of residency route). Under the old Rules PBS Dependant needed 2 years of residency in the UK and under the current Rules – 5 years. In our example, the Dependant only spent 3 years on a Dependent visa, so needs another 2 years as Dependant, even though the main visa holder can apply for an ILR before that.

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