Applying for Indefinite Leave to Remain: Special Considerations for Closed Categories
In the last three years, the Entrepreneur, Investor and Sole Representative of an Overseas Business category have all closed to new entrants. Those who already have a grant of leave in the category or have applied to enter prior to the relevant deadline are permitted to stay in the relevant category until they reach settlement. However individuals in these categories may have to pay closer attention to their residence and absences to ensure that they are able to apply for settlement, if this is the ultimate goal. This is especially the case for individuals over the last two years who may have had travel arrangements and plans disrupted by Covid 19.
What categories have closed and when?
The Entrepreneur category closed to new entrants on 29 March 2019 and migrants will be able to apply for extensions until 5 April 2023. Indefinite Leave to Remain applications can be made until 5 April 2025.
There are slightly different rules for individuals who are in the Entrepreneur category, but who previously held leave in the Graduate Entrepreneur category. For individuals in this category, applications to enter the Entrepreneur route did not close until 5 July 2021. Extension applications can be made until 5 July 2025 and Indefinite Leave to Remain applications until 5 July 2027.
The Investor category closed to new entrants on 17 February 2022. The last date to make an extension application is 17 February 2026 and any Indefinite Leave to Remain application must be made by 17 February 2028.
The Sole Representative of an Overseas Business category closed on 11 April 2022. Final dates are not yet given for applications to be made for an extension or Indefinite Leave to Remain, but in line with previously closed categories, it is expected that these will be included in later versions of the immigration rules.
What are the residence requirements?
In this article we will focus on the five year route to settlement, though applicants should be aware that the Entrepreneur and Investor categories have accelerated settlement options too.
Applicants in the five year route must spend a continuous period of five years in the UK. This five year period can be broken by overstaying, gaps in lawful residence, and by having too many absences from the UK during the period.
Overstaying
The current rules relating to overstaying allow an application to made after the expiry of a person’s leave only in limited circumstances:
- Where the application is made within 14 days of the expiry of leave and there were exceptional circumstances outside the applicant’s control which prevented an in-time application from being made.
- Where the application is made within 14 days of a refusal, or an appeal or administrative review is concluded.
- Where the period of overstaying was between 24 January and 31 August 2020
- Where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021.
Gaps in lawful residence
This might arise where a person makes their extension application from outside of the UK. A gap will arise if the extension application is not made during the currency of their existing leave, or within 14 days of existing leave if there are exceptional circumstances. Applications can be made outside this time without interrupting continuous residence only where there is refusal decision or appeal or administrative review.
Migrants should be aware of this provision because the rules allow an extension application to be made from outside of the UK as long as the person held leave in the relevant category with the 12 months before their application. This could mean that a person is granted leave, without knowing that their period of continuous residence is considered to have been interrupted.
During the pandemic an increasing number of individuals made their extension applications from abroad, and anyone in this category should be careful to check their dates.
Absences
Absences are counted in two different ways depending on when leave has been granted: the pre- 11 January 2018 rules and post 11 January 2018 rules.
Pre-11 January 2018
For any period of leave granted under the rules prior to 11 January 2018 a person must have no more than 180 days absences in each 12 month period. This is calculated on the basis of consecutive 12 month periods.
Post-11 January 2018
For grants of leave after 11 January 2018, absences are calculated differently. The Home Office will look at a rolling 12 month period, rather than consecutive periods. This means that if there is any 12 month period where a migrant has more than 180 days outside of the UK, they will not meet the requirements. When applying under these rules, a migrant cannot use the application date to split up long absences into different years and so this requirement is stricter. Anyone in this category should be aware that the stricter rules don’t apply directly from 11 January 2018, but from the date of the first grant of leave after 11 January 2018. This means that a person granted leave from 5 January 2018 until 5 January 2021, who is granted an extension of leave on 1 February 2021 following an in time application, only has to start counting under the stricter rules from 1 February 2021 onwards.
Example calculation
If during 2022 you spent all of June to the end of October outside of the UK and in 2023 you were away again between January to the end of March, this would not meet the requirements because from all dates in June 2022 to June 2023 you would have been outside the UK for 8 months which is more than 180 days in total. The same would be true for all dates in July 2022 to July 2023 which would have 7 months outside the UK and so on.
When does the five year period start?
Migrants can be flexible when choosing the start date of the five year period. The Immigration Rules and Guidance specify the earliest date that an application can be made, and the latest date is dictated by the expiry of leave and/or closure of the category, but an application can be made at any point between these two dates, depending on what is convenient for the applicant. Rather than counting forwards from a specific date, the Immigration Rules look backwards from the date of application for Indefinite Leave to Remain.
The earliest date that this can be is 28 days before five years from the grant date of the visa. For example, if an Investor visa was first granted on 1 March 2021, the earliest date that an application could be made for Indefinite Leave to Remain would be 1 February 2026.
The Guidance states:
‘The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK count towards the 180 days allowable absence in the continuous 12-month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.’
This means that anyone who wants to apply at the earliest possible time should be sure to include their absences between grant and entry in their calculations.
When calculating the earliest possible date, applicants should be aware of any route specific requirements for example Investors’ timelines may be affected by the date that they first made their investments and Entrepreneurs may be affected by the time required for job creation.
What happens if a person is unable to enter immediately or has a high number of absences?
If a person in the above example who is granted leave on 1 March 2021 delayed their entry to the UK until 1 December 2021, this would mean that the new earliest date that they could apply for Indefinite Leave to Remain would be 3 November 2026, subject to any other relevant absences.
In this case there is a risk that their grants of leave will not provide them with sufficient time to get to November 2026. For example if the first grant of leave were to run from 1 March 2021 to 1 July 2024, and the second grant of leave from 1 August 2024 until 1 August 2026, the individual would be just over three months short of getting to their date for indefinite leave to remain.
There are three options here, depending on the amount of time short an applicant is:
- Delay application for extension (within validity of leave) and do not use priority services so that extension grant starts and ends later.
- Make an additional extension application, noting that for an Investor this would have to be made prior to 17 February 2026.
- Switch into a different category, which permits grants of leave until the requirements for ILR can be met.
- Apply early and ask the Home Office to hold the application until the relevant date that the rules can be met.
Do all absences count towards the permitted limit?
For individuals in these categories, the only absences that will not count towards the 180 day limit are those for the purpose of assisting with a national or international humanitarian or environmental crisis overseas. All other absences, including those for work based reasons will be considered like any other absence.
There is an exception in the guidance where someone has excessive absences but there are compelling or compassionate reasons for this absence which is beyond the Applicant’s control.
The relevant guidance states:
‘Serious or compelling reasons will vary but can include:
- serious illness of the applicant or a close relative
- a conflict
- a natural disaster, for example, volcanic eruption or tsunami
The applicant must provide evidence in the form of a letter which sets out the reason for the absence with documents of support. For example:
- medical certificates
- birth or death certificates
- evidence of disruption to travel arrangements’
Are Dependants subject to the same rules?
A dependent spouse is subject to the same rules, with the exception that absences during grants of leave prior to 11 January 2018 are not counted. The requirements for grants of leave post 11 January 2018 are considered in the same way as the Main Applicant.
Children are not subject to any residence requirements, but can only apply for Indefinite Leave to Remain when both parents are eligible. This means that if, for example, the Dependant parent has a large number of absences and is not eligible for Indefinite Leave to Remain, this will potentially delay the applications for any dependant children.
Conclusion
For anyone who is planning to settle in the UK on a long term basis, it is important to plan ahead and keep track of requirements and absences so that appropriate action can be taken to ensure the path to settlement runs smoothly. This is even more important for individuals who are in categories which have now closed. Individuals may wish to seek advice early about their individual circumstances.
The requirements for citizenship are outside the scope of this article, but individuals should also be aware that there are different residence requirements should they wish to apply for British Citizenship.
Contact our Immigration Barristers
For expert advice and assistance with an Indefinite Leave to Remain application, contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.
