Ever After

Is Applying for Indefinite Leave to Remain a Fairytale or a Nightmare?

“Settling into a new country is like getting used to a new pair of shoes. At first they pinch a little, but you like the way they look, so you carry on. The longer you have them, the more comfortable they become. Until one day without realizing it you reach a glorious plateau. Wearing those shoes is like wearing no shoes at all. The more scuffed they get, the more you love them and the more you can’t imagine life without them.”
? Tahir Shah, In Arabian Nights: A Caravan of Moroccan Dreams

Few people understand the enormous gumption it takes to up and leave the country of your birth to begin a new life abroad. Not only do you have to start from scratch on the practical matters necessary to life, such as finding a job, a home and schools for your children, but migrants have to adjust to a completely new culture, and even a new language (especially if you are an American).

Even if you have become “smitten by Britain”, if you have lived here for any length of time, there are sure to be some things about English folk that perplex and/or annoy the hell out of you. Melissa, a Canadian national who has lived in the UK for 13 years finds the road signs incredibly frustrating, “There are so many of them for some things (national speed limit sign followed by ‘slow’ followed by 40 mph) but then they miss them altogether for important directions”. A New Zealander, who wished to remain anonymous, recently commented to me that she finds it so hard to understand the way British people drop ‘subtle hints’ when they are displeased with something you have done, and then give you the cold shoulder when you fail to get the message. Also, the way the British cloak everything in polite words such as, “you must come around to dinner sometime” as a way of ending a conversation, even if they would rather drive in rush hour on the M25 every day of their life than ever have to see you again! Finally, Sintia, who moved from Mexico to be with her husband, cannot understand why no one is ever happy with the weather, “hot or cold, the British moan regardless”.

But despite these minor aggravations, once you have been in the country for a certain amount of time, it is natural to want to take steps to make your residence in the UK official; not only for personal but for practical reasons.

The advantages of obtaining Indefinite Leave to Remain (ILR)

Aside from the psychological benefit of feeling like you have cemented your right to remain in the UK, gaining ILR has numerous pragmatic advantages, including:

  • freedom from all visa restrictions
  • you can travel in and out of the country freely (however, ILR can be lost if you spend two years or more living outside the UK)
  • after a year you can apply for British Citizenship

Eligibility requirements for obtaining ILR

Working out if you are eligible for ILR is complex, as there are different requirements depending on the type of visa you entered the country on. Therefore, it is imperative that you seek legal advice before applying.

As a general rule the main criteria you need to meet are:

  • Five years’ residency. This applies to most visas including; work permit, marriage, ancestry, unmarried partner and EEA family permits. People who have an investor or entrepreneur visa can apply earlier depending on the amount of money they have invested or the turnover of their business and the number of jobs they have created.
  • Passing the English language and the Life in the UK tests.

The domestic violence concession

If you experience domestic violence in your relationship then you can apply for ILR straight away, without waiting until you have lived in the country for five years and even if you are an overstayer.

To be eligible, you must show:

  • you are on a spouse, unmarried partner or civil partnership visa, and;
  • you lived together when you arrived in the UK or were given your visa, and;
  • you are able to provide evidence that your relationship with your spouse, civil partner or partner was caused to permanently break down before the end of the probationary period because of domestic violence.

To prove your relationship has broken down because of domestic violence (which can include physical, emotional and sexual abuse) it is important to keep police and medical records and obtain independent witness statements if possible.

Changes to ILR eligibility from 6th April 2016

From 6th April 2016, most people on a Tier 2 visa (work visa), must earn a minimum of £35,000 per annum before they can apply for ILR. This has been introduced by the UK Government as a way of reducing net migration.

Unfortunately, this new requirement will make it very difficult for many people who to apply for permanent settlement in the UK. The average wage for a UK worker in 2015 was £27,600 per annum.

The £35,000 earning requirement will not apply to anyone whose job is on the shortage occupation list or to scientists and researchers in PhD level occupations. Nurses are also exempt, but only temporarily at present.

The £35,000 threshold has proved controversial, with many business interest groups and those in the healthcare sector demanding the Government scrap the requirement.

Currently, those who cannot meet the salary threshold will have to leave the country once their visa runs out.

A dream come true or the end of the road?

The income requirement has put an end to many peoples’ dreams of making the UK their permanent home. However, there is currently a petition in front of Parliament demanding that the £35,000 threshold be abolished, and it is likely a legal challenge will be mounted in the near future.

We will keep you posted on any new developments as they come to fruition.

Saracens Solicitors is a multi-service law firm based in London’s West End. We have a dedicated and highly experienced immigration law team who can assist you with any questions you have regarding Indefinite Leave to Remain. For more information, please call our office on 020 3588 3500.