Indefinite Leave to Remain –
why you might need
to extend instead
19 February 2014
For many applicants, indefinite leave to remain (ILR) is the penultimate step in their UK visa journey. With no need to apply for further visas thereafter, it is often the target that many migrants work towards in order to secure their own and their family’s future here in the UK. However, once the 5 year minimum time period for applying has been reached there are still many migrants who extend their current visa rather than settle indefinitely in the UK. Here we examine some of the reasons why they may need to do so.
1. Time spent outside the UK
When applying for ILR it is necessary for the applicant to have spent no more than 180 whole days (i.e. not including the day of departure from the UK or arrival back in the UK) in any 12 month period during the 5 year qualifying period. Although particularly large absences can be split across two 12 month periods, no single absence can be greater than 180 days. Many, especially those who travel for business, fail to meet this requirement and are forced to extend and wait until the absence works its way out of the 5 year period. It is also vital to be aware that any absence, regardless of the reason, contributes towards the 180 days.
2. Criminal Convictions
During the 5 year residency period some migrants may fall foul of the law and incur a minor punishment such as a fine or a community sentence. Such indiscretions can prove costly from an immigration perspective as, from the date of conviction, an applicant cannot apply for ILR until 3 years have passed. Thus certain applicants may have to hold off applying until their conviction is classed as spent.
3. Life in the UK Test/English Language
The Life in the UK Test is a common stumbling block in the process of obtaining ILR. At busier times of the year availability to sit the test can be limited. As a consequence, some migrants fail to sit the test ahead of their current visa expiration date and are therefore forced to extend their stay instead. Even if an applicant sits the test in good time, there is still a need to complete it successfully. Failure to attain the necessary pass mark has led to many applicants postponing their application for indefinite leave to remain.
4. Passport required to travel
ILR applications take up to 6 months to be decided by the authorities although history tells us that processing times can double without prior warning. With Tier 2 postal applications only taking a matter of days to consider, some applicants may choose to extend their visa rather than be without their passport for several weeks or months.
5. The ILR option is simply not available
Finally, not all categories under UK immigration law lead to ILR and for some it may be necessary to extend or look for an alternative route to remain in the UK. Students are such an example as they cannot obtain ILR after 5 years, nor can they remain under the Tier 4 categories for more than 8 years.
For further information on applying for indefinite leave to remain in the UK, please contact Smith Stone Walters today.