ILR in the UK Based on Family Relationships
In this post, we provide an overview of the routes to indefinite leave to remain (ILR) or settlement not covered in the first of our two blog posts: Quickest Ways to Get ILR in the UK and 5 Year Work and Business Routes to Settlement in the UK. This post will consider the 5 year routes to settlement which are based on family relationships, other routes and the 10 year long residence route to settlement in the UK. The 20 year long residence route was recently covered here.
Indefinite Leave to Remain as a Partner, Civil Partner or Spouse
These routes allow for settlement (where the indefinite leave to remain (“ILR”) requirements are met) in the UK for unmarried partners, civil partners or spouses of:
- a British or Irish citizen in the UK; or
- a settled individual, an individual with indefinite leave to remain or permanent residence in the UK; or
- an individual with pre-settled status as a result of Appendix EU; or
- an individual on the Turkish Businessperson or Worker routes as a result of Appendix ECAA; or
- an individual with refugee status or humanitarian protection in the UK.
Settlement is possible after spending 60 months (5 years) in the UK on the relevant route. Other ILR requirements will include demonstration of the continued existence of a genuine and subsisting relationship with the relevant partner or spouse (sponsor) in the UK, that the financial requirements, which can be quite complex to meet, are met and that suitable accommodation continues to be available for the couple.
EU Settlement Scheme – Settled Status
Settled status is the terminology used for ILR for those in the UK as a result of the EU Settlement Scheme. The EU Settlement Scheme (“EUSS”) is for EU, EEA and Swiss citizens and their family members who began living in the UK by 31 December 2020 and who sought to remain in the UK after 30 June 2021. Most individuals on this route will have Pre-Settled Status, which is the status given to individuals where they have not been in the UK for a continuous qualifying period of at least 5 years. Although the deadline to apply to be on the EU Settlement Scheme was 30 June 2021, many people found themselves unable to meet this and there may be options available to allow one to apply for status now, where reasonable grounds exist for the late application.
The requirements for Settled Status include demonstrating that you are an EEA citizen, a family member of a relevant EEA citizen, a family member with a retained right of residence due to a relationship with a relevant EEA citizen, an individual with a derivative right to reside or a Zambrano right to reside. You would also need to demonstrate residency in the UK prior to 31 December 2020 or that the relevant EEA citizen being relied on started their residency before then and completed at least a 5 year continuous qualifying period of residence in the UK. Individuals applying for Settled Status would also be required to complete the 5 year continuous qualifying period of residency.
Family Members of EEA Citizens
Non-EEA citizens who are family members of relevant EEA citizens may apply for a EUSS Family Permit from outside the UK as detailed in this post. An EUSS Family Permit will enable them to enter the UK and is usually granted for a period of four or six months. Once in the UK, the individual would be able to apply for limited leave to remain (Pre-Settled status) on the EU Settlement Scheme under Appendix EU. In order to apply for Pre-Settled status, the family member being relied upon must have started living in the UK before 31 December 2020 and either has Pre-Settled or Settled status, is waiting for a decision as to their status or would be eligible for either status in the UK. An application to the EUSS must occur within 3 months (90 days) of the individual’s arrival in the UK, where applications are made more than 90 days after arrival in the UK, one would need to demonstrate that there are reasonable grounds as to why the application is late. Guidance exists which provides a non-exhaustive list as to what would constitute reasonable grounds. Once with Pre-Settled Status, one can then apply for Settled Status after a period of 5 years’ continuous residence in the UK, provided all necessary requirements are met.
Parent of a Child
This visa enables parents of children who are living in the UK already and are either British, Irish or have Settled or Pre-Settled status in the UK, to join their children in the UK in order to care for them. Applicants will need to demonstrate that the child is living in the UK and is either a British or Irish citizen, settled in the UK or is in the UK with pre-settled status. Initial Applicants need to also demonstrate that they are 18 years and above, their child is under the age of 18, they either:
- possess sole responsibility for the child; or
- that the parent or carer with whom the child normally lives is a British or Irish Citizen in the UK, settled in the UK, or in the UK with pre-settled status, they are not their partner, they are not eligible to apply for entry clearance as a partner under Appendix FM of the Immigration Rules and they have direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK.
Applicants will also need to demonstrate how they are taking an active role in the child’s upbringing and how they intend to continue doing so. Maintenance, accommodation and English language requirements will also need to be met. Successful Applicants will be issued an initial visa for 33 months, will then be required to apply for leave to remain if they wish to remain in the UK. If successful, a visa will be granted for a period of 30 months. Eligibility for indefinite leave to remain will then arise after a continuous period of 5 years in the UK on this visa. It is important to note that one cannot combine time spent in the UK on another immigration route to allow for this five year period to be met.
Applicants for settlement will need to meet a more stringent English language requirement (CEFR B1 compared to A1 at the entry clearance/leave to remain stages) additionally to the other requirements which they would have needed to meet at the entry clearance/leave to remain stages. They will also need to pass the Life in the UK test, unless exempt.
Adult Dependent Relative Visa Settlement
This immigration category is for Adult Dependent Relatives of:
- British citizens living in the UK;
- Individuals with Settled or Pre-Settled status under Appendix EU who live in the UK; and
- Individuals with refugee leave or humanitarian protection status.
Adult Dependent Relatives can include parents, grandparents, brother or sister, son or daughter all aged 18 years or over of a person who is in the UK and who is also aged 18 years or older. Where an individual is applying on the basis of a sponsor who is settled in the UK, they will be granted ILR status. In other circumstances, where individuals’ sponsors hold temporary status in the UK, they will be granted temporary status ending on the same date as their sponsor’s status. Once Applicants with temporary status are in the UK, they can apply to extend their leave or for settlement in line with their sponsor.
In order to enter the Adult Dependent Relative route, one must apply from outside of the UK, although there are very limited circumstances in which one can apply for leave to remain, on the basis of human rights grounds, from within the UK. Key requirements that Applicant’s will need to show they meet are that they require long-term personal care (help with performing everyday tasks e.g., dressing, washing and cooking) due to age, illness or disability and that they are unable to access the required level of care in their country of residence even with the financial support of their sponsor who is based in the UK. They will further need to demonstrate that there is no one (a close relative, home-help, housekeeper, care or nursing home, nurse or carer) in their country of residence who is able to provide the required support. Such requirements can be very difficult to evidence and the evidence used will vary depending on Applicants’ circumstances, as a result it can be very useful to seek immigration support from expert immigration lawyers.
ILR for Hong Kong BN(O) Status Holders and Family Members
The Hong Kong British National (Overseas) (Hong Kong BN(O)) Status Holder Visa is for individuals who ordinarily live in Hong Kong or the UK and who are classed as a British National (Overseas) under the Hong Kong (British Nationality) Ordinance Order 1986. No one born after 30 June 1997 is able to come within this classification. British Dependent Territories citizens with a connection to Hong Kong were able to register as British National (Overseas) due to their relationship to Hong Kong and the strict cut off date for registering as a British National (Overseas) was 01 July 1997.
Individuals can apply for a status holder visa using either a valid or expired BN(O) passport as evidence of their status. Other eligibility checks can also be made where one has lost their passport. Another requirement includes demonstrating that, if applying from outside the UK, one ordinarily lives in Hong Kong or if applying from inside the UK, that one ordinarily lives in Hong Kong, Jersey, Guernsey or the Isle of Man on the date of application. This visa allows individuals to live, work and study in the UK for a period of 30 months or 5 years, depending on the period of leave applied for.
One can apply for settlement after five years’ continuous residence in the UK. If time has been spent on a different route that leads to indefinite leave to remain status in the UK, there is a potential to combine this with time spent on the Hong Kong BN(O) route, as long as the last period being relied on to meet the settlement period was spent in the BN(O) route. The absence threshold will further need to be met, meaning that one cannot be outside the UK for a period of more than 180 days in any 12 month period. English language and Life in the UK tests will also need to be taken by those under 65.
Family Members
Dependent children and grandchildren (under 18) of BN(O) Status Holders are able to apply with or to join a BN(O) Status Holder in the UK. This route also allows dependent partners or spouses of BN(O) Status Holders to do the same. If the partner or spouse is a BN(O) Status Holder in their own right, it is not necessary for them to apply as a dependent partner or spouse and they can instead apply as a BN(O) Status Holder in their own right. There is further a potential for adult dependent relatives, with a high degree of dependency on the BN(O) Status Holder or the BN(O) Status Holder’s partner or spouse to apply to join the family in the UK using this route.
The Hong Kong BN(O) Household Member Visa is for adult children (those aged 18 or over) of BN(O) Status Holders or a BN(O) Status Holder’s partner, born on or after 01 July 1997. This route, as with the Status Holder route, allows individuals to live, work and study in the UK. Adult children of a BN(O) Status Holder are able to apply for this route regardless of whether the parent who holds BN(O) status has applied or been granted permission as a Status Holder. Dependent partners, children aged under 18 and adult dependent relatives of Hong Kong BN(O) Household Members or their partner may be able to also join the Household Member, where the specified requirements are met.
Family members will be able to apply for settlement in a similar way as identified for BN(O) Status Holders. It is important to note that the requirements to meet for Applicants on the various BN(O) routes can be quite complex, therefore it is always best to seek advice from expert immigration lawyers.
UK Ancestry Route ILR
The UK Ancestry Visa is open to:
- Commonwealth citizens;
- British Overseas citizens;
- British Overseas territories citizens;
- British National (Overseas); and
- Zimbabwean citizens
who can prove that one of their grandparents was born in the UK, Channel Islands or the Isle of Man. One’s grandparent can also have been born in what is now the Republic of Ireland as long as they were born there before 31 March 1922 or if a grandparent was born on a British registered ship or aircraft. Ancestry can still be claimed if one was adopted or their parents were adopted or if one’s parents or grandparents were not married, but cannot be claimed where one is relying on a step-parent.
Other requirements to meet include, demonstrating that one is 17 years of age or above, has enough money to support themselves and any dependents without needing to rely on public funds and also that they can and are intending to seek employment in the UK. As identified above, partners and children of those on this route are able to join them in the UK, where they meet the requirements. For example, with a partner, one would need to demonstrate that they are either in a civil partnership or marriage that is recognised in the UK, or that they have been living together for a period of at least 2 years when they apply. In terms of a child, one would need to show that their child is living with them (unless the child is in full time education at boarding school, college or university) and is not married, in a civil partnership or has children.
A UK Ancestry Visa is valid for a period of five years and after completion of five continuous years in the UK on this route, one may be able to apply for ILR in the UK. An applicant would, as on other routes, need to meet the suitability requirements, ensure that they meet the English language requirement (CEFR Level B1 in speaking and listening) and that they have taken and passed a Life in the UK test, where exemptions do not apply. It is important to note that those applying for settlement will need to also provide evidence to show that they have been working or genuinely seeking employment during the five years that they have been in the UK on this visa. Where one is unable to meet the requirements for settlement, it is open to one to extend their visa in the UK on this route until they are able to meet such requirements.
The 10 Year Route to Settlement
This route, also called Long Residence ILR, allows for the combination of different categories of leave in order for an applicant to obtain indefinite leave to remain in the UK after a period of 10 years. This is a useful category as it can allow for the combination of time spent in categories which would otherwise not lead to settlement, for example, time spent in the UK as a Student, other than on a short-term study visa. One will need to have lived in the UK continuously and lawfully for a period of 10 years. Applicants will need to show that their 10 years in the UK is unbroken, that is demonstrate that they have, for example, not been absent from the UK for a period of more than six months at any one time or that they have not spent a total of 18 months outside of the UK throughout the 10 year period. They will need to further demonstrate that there are no public interest reasons which would make it undesirable for the granting of indefinite leave to remain and that they do not fall within the general grounds for refusal, such as, by having a relevant criminal conviction.
This post has provided a brief overview of the 5-year family and relationship based routes to settlement in the UK, including the 10 year route to obtaining indefinite leave to remain.
Contact our Immigration Barristers
For expert advice and assistance in relation to ILR requirements and applications and/or to discuss your options please contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
