The clarity of this topic has become somewhat more clouded in the last four years.
Before the EU referendum of 2016 and the Brexit which is still emanating from it, citizens from other European Union member states were freely able to live, work and settle in the UK. Meanwhile, people from non-EU countries would have typically had to either become a British citizen or be granted Indefinite Leave to Remain to make our fair island their permanent home.
However, the UK is now in the process of leaving the world’s largest trading bloc, and the still-ongoing negotiations seem to be heading towards an acrimonious split. Therefore, anyone from overseas who wishes to settle in the new, isolationist UK in the future will likely have to do so via the same channels as their non-EU counterparts have been doing for decades. The question of how to go about obtaining settled status here has become all the more pressing.
The frameworks concerning British citizenship and Indefinite Leave to Remain (or ILR) are different from each other but are both mired in nuance and legal complexity. This article will, therefore, be concentrating mainly on the latter.
So what is Indefinite Leave to Remain, and how would someone go about applying for and obtaining it?
What is Indefinite Leave to Remain?
Indefinite Leave to Remain can be applied for by foreign nationals who wish to settle permanently in the UK to live and work. If granted, ILR status allows that person to stay in the country for an indefinite period and naturalise as a British citizen. It also entitles them to any state benefits that they may be eligible for.
As noted in the introduction, Indefinite Leave to Remain is different from full British citizenship. With ILR status, unlike with citizenship, the holder can settle in the UK, but will still maintain their original (or existing) nationality and passport. However, unlike full citizens, those with ILR status are excluded from voting in UK elections and referendums unless otherwise specified.
The most significant difference (and perhaps disadvantage) between British citizenship and Indefinite Leave to Remain is that, while full citizenship is for life, ILR status can be rescinded from an individual if they are absent from the UK for two years or more. However, within those boundaries, someone with ILR can generally come and go from the UK as they please.
How does someone qualify for Indefinite Leave to Remain?
There are numerous different visa categories under which a person can qualify for ILR, provided they have been residing in the UK for a specified period. The specific qualifying period depends on which visa category each individual falls under, as well as their current status in the UK.
Generally speaking, a person can apply for ILR after living continuously in the UK for five years, assuming that all other requirements are met. In some cases, however, someone may apply after just two years. Finally, there is the so-called ’10 year route’ under which an individual may apply for ILR status after having lived lawfully in the UK for a continuous period of ten years or more.
To conclude, people wanting to apply for ILR has to have stayed in the UK for a qualifying amount of time and under a specified visa category. However, before being granted ILR, they must be able to fulfil the minimum requirements for knowledge of British life and the English language.
What are the main routes to qualify for Indefinite Leave to Remain?
Typically, foreign nationals who wish to apply for ILR in the UK must fall under one of the following visa categories:
- Tier 1 migrants – Are divided into four different subcategories according to their skills and circumstances; general, entrepreneur, exceptional talent or investor and their dependents.
- Tier 2 (General) – Applies to all other qualifying migrants and their dependents.
- Migrants who are the spouse or partner of someone who is already legally settled in the UK.
- UK ancestry route – Migrants from families who have strong historical roots in the UK.
- Domestic workers who are covered by specific transitional arrangements.
- Migrants in closed categories – This generally applies to Work Permit holders and, until it was scrapped and replaced in 2008, also applied to people working in the UK under the Highly Skilled Migrant Programme (HSMP), as well as their dependents.
As previously noted, migrants wishing to apply for ILR must fulfil the requisite time criteria according to their visa category and application route to qualify. It is highly unlikely that any application which does not meet these requirements will be successful, except in the circumstance that the applicant is claiming political asylum.
The English Language Requirement
Applicants from non-English speaking countries can prove they meet the minimum English language standard by having achieved one or both of the following qualifications:
- An English language qualification at either B1, B2, C1 or C2 level.
- A degree in any other subject/ provided that it was either researched or taught in English.
If an applicant is unable to provide either of these qualifications, then they can demonstrate their understanding of the English language through passing the life in the UK test as well as proving their knowledge of British Life.
According to the government’s official website, applicants applying from the following countries do not need to achieve this requirement:
- Antigua and Barbuda
- The Bahamas
- New Zealand
- Ireland (for citizenship only)
- St Kitts and Nevis
- St Lucia
- St Vincent and the Grenadines
- Trinidad and Tobago
People applying for ILR from nations not on the list will have to prove their English language proficiency, even if English is an official language of the country in question.
In addition to people seeking asylum or applying to settle on other humanitarian grounds, applicants for ILR who are over 65 or unable to demonstrate their knowledge of English due to a long-term physical or mental condition are exempt from fulfilling the language requirement. However, the latter will need to provide a completed exemption form from their doctor to confirm their condition.
The Life in the UK Test
In addition to proving their ability to speak and understand English to an acceptable level, ILR applicants must also pass a Life in the UK test to be successful. This is to ensure that any foreign national who wishes to make the UK their permanent home is sufficiently familiar with British life and customs.
The questions within the test can be on anything, from British history to “what would you do in the following situation?…”, and everything in between.
Example questions include asking the candidate whether it is either communism, intolerance, individual liberty or inequity that’s considered to be a “fundamental principle of British life” and “why did Henry VIII establish the Church of England?”.
The test itself consists of 24 multiple choice questions about British traditions, norms, history, trivia and values. The candidates have a maximum of 45 minutes to complete it.
How long does it take for individual Indefinite Leave to Remain applications to be approved or denied?
As with British citizenship applications, the average time from the start of the ILR process and a decision to be reached is approximately six months. However, decision times can vary wildly depending on the route taken, the visa category of the applicant and their circumstances. Cases in which further enquiries are needed will typically take longer than the six-month average.
Furthermore, the longer an application takes, the more forms and documents will be required, and the greater the fees and expenses incurred by the applicant.
Please be aware that the rules on immigration are ever-changing, particularly during these uncertain times of Brexit and Covid-19. For further expert and professional advice and assistance concerning your Indefinite Leave to Remain application, including fees, application methods, processing times, the requirements and eligibility criteria, please do not hesitate to contact an immigration solicitor on Qredible.co.uk. They are ready and able to help you.
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