Indefinite leave to remain & Settlement for spouses and partners

Indefinite Leave to Remain (ILR) & Settlement for spouses and partners in the UK

The non-EEA spouse or partner of a person who has sufficiently solid status in the UK may apply for a visa to join them or, in some cases, stay with them in the UK.

Sufficiently solid status is in this case either British citizenship, settlement, refugee leave, or humanitarian protection leave. (Refugee leave and humanitarian protection leave are not in reality quite as solid because they constitute limited permission to stay in the UK, not unlimited permission, but nonetheless this is what the law allows.)

A “partner” in this context is a spouse, civil partner or unmarried partner (ie someone who has lived with someone in a relationship akin to marriage for at least two years) or possibly a fiance/ee or proposed civil partner – but in this case the rules are a bit different and a bit more restrictive.

A spouse/civil partner/unmarried partner visa is granted initially for two and a half years. If everything goes well – both with the relationship and with meeting all the various requirements of the immigration rules – then the visa can be extended for a further two and a half years.

If everything continues to go well, after five years in total the partner can make an application for indefinite leave to remain /settlement. 

This is the general idea but is a slightly simplified version because, firstly, a migrant granted entry clearance outside the UK will initially receive a 30-day visa that enables them to enter the UK, and only once they are in the UK will get their partner visa/biometric residence card (BRP).

Five years in total in the UK meets the Indefinite Leave to Remain residence requirements under the 5 year route to settlement. Although the settlement rule says that the partner must have spent five years “in the UK” with their UK-resident partner, this needs to be carefully interpreted. The first point is a clear one: the partner is not “in the UK” until the airliner has landed, they have gone through border control, the cheery Border Force officer has put an entry stamp in their passport and they emerge “landside”. (Some readers may be interested to know that, properly legally speaking, a migrant is not fully in the UK until they have successfully negotiated border control – the normal laws of physics do not apply.)

So far so good, but then the question emerges of how to qualify for having been for five years “in the UK” with your other half. It is relieving to know that the rule is not interpreted absolutely strictly: you do not both need to stay huddled together in the UK, terrified to leave the country in case something bad happens to your immigration status. 

You or you and your partner can go abroad on holidays now and again, within reason, and it is no problem. It may be that your partner needs to go abroad sometimes for, for example, work reasons and again this is no problem, within reason. And there might be other acceptable scenarios. 

But there are limits to this and, unlike with other types of visa, there are no stated mathematical figures for permitted days spent outside the UK. It might be easier if there were, but instead the Home Office operates a discretionary policy. 

The published policy instructs Home Office caseworkers processing applications, both for extension applicants and settlement applications, that if there have been relatively long periods of absence outside the UK for either the partner or the British resident “this must be for good reasons and the reasons must be consistent with the intention to live together permanently in the UK”.

Essentially, you must have been resident in the UK for a minimum of 5 years from the day you enter the UK. The start date of the visa does not include your residency unless you received the visa while you were in the UK.

This of course is intentionally flexible, but the meaning is at least tolerably clear, and we do get one mathematical steer: “If the applicant, their partner or both have spent the majority of the period overseas, there may be reason to doubt that the couple intend to live together permanently in the UK.”

And, to make things a bit more complicated, it sometimes happens that a migrant needs to apply for more than two grants of leave as a partner in order to qualify for settlement: there is a “five-year route” and a “ten-year route” to settlement. This is a relatively complex area, and there are different possible permutations. In any event, a migrant applying for settlement who is relying on the five-year route needs to show that they have acquired (or are coming close to acquiring) five years’ leave on the five-year route. If they can show this then they can apply. 

This can be a tricky area, and if you find yourself embroiled in it you might want to take good and informed legal advice before you apply for your Indefinite Leave to Remain application. 

Indefinite Leave to Remain allows the holder to stay in the UK permanently. However, this status can be lost if you stay outside the UK for 2 years continuously. You can submit your Indefinite Leave to Remain application online through gov.uk website.

We at GSN Immigration are expert Immigration Lawyers and are able to explain and guide you through the complex parts of the Immigration law. We have helped many clients with their Immigration matters and can assist you with your Immigration queries and problems.

Contact Us today and we will provide you with the best Immigration advice.

Author

Oliver Westmoreland

OISC Level 3 Immigration Lawyer