Are You Suitable for Family Settlement (ILR) in the UK? (Part 1)
In This Article
1. Understanding Settlement Requirements
2. Suitability for Settlement on the 5-Year Family Route
3. ‘Must Refuse’ Cases
4. ‘Should Normally Refuse’ Cases
5. ‘May Refuse’ Cases
6. Deportation Orders in Settlement Applications
7. Declaring Offences and Criminality in Settlement Applications
8. Suitability for Settlement: Sentences and Mandatory Refusals
9. Appealing a Conviction or Pending Prosecution
10. Exceptional Grants of Settlement Outside the Rules
11. Limited Leave as an Alternative to ILR
12. Overseas Convictions and Their Impact on Settlement Applications
13. Serious Harm
14. Persistent Offending
15. Suitability for Settlement: Non-Conducive to the Public Good
16. Contact Our Immigration Barristers
17. Frequently Asked Questions
18. Glossary
1. Understanding Settlement Requirements
Applying for settlement or indefinite leave to remain (ILR) in the UK is a significant step for your rights to live and work in the UK alongside your family, and whether you’re applying under a partner visa or other family route, meeting the suitability requirements is more difficult at this stage than in previous visa applications. To find out about the impact of criminal convictions on applications for entry clearance to the UK on a partner or family visa, read our previous article Criminal Convictions and UK Partner & Family Visa Applications.
This is the first part of a two-part series on the suitability requirements for settlement or ILR applications in the UK on partner and family routes. In this article, we will explore elements of the suitability requirements for settlement on the 5-year partner and family routes, and break down what they mean. Understanding these rules can help you ascertain whether you are eligible for settlement, and what type of application you should proceed with.
2. Suitability for Settlement on the 5-Year Family Route
The suitability requirements for settlement or ILR on the family 5-year route, which covers partners and parents, are contained in section S-ILR of Appendix FM to the Immigration Rules as well as the general grounds for refusal found at Part 9 of the Immigration Rules. There are mandatory and discretionary grounds for refusal, and these are split into three categories of refusal: must refuse, should normally refuse, or may refuse.
3. ‘Must Refuse’ Cases
Must refuse means that if the applicant has done something which falls within this category, the caseworker is compelled to refuse the application and settlement or Indefinite leave to remain will not be granted under the Immigration Rules. There is no allowance for discretion here.
4. ‘Should Normally Refuse’ Cases
If you have done something which falls within the ‘should normally refuse’ category, then the starting point will be that your application for indefinite leave to remain will be refused, but the caseworker is granted limited scope to exercise discretion. This means that only more compelling circumstances are likely to displace this starting point.
When a caseworker is considering a discretionary suitability issue, whether ‘should normally refuse’ or ‘may refuse’, they should look at the nature of the suitability issues in the context of the whole application, and decide whether it is sufficiently serious to refuse the application. They will also consider whether there are compelling reasons that the application should not be refused. The guidance dictates that caseworker decisions must be proportionate and reasonable, based on the facts of the case.
5. ‘May Refuse’ Cases
If you are looking at a ‘may refuse’ suitability issue, the caseworker will be allowed a wider scope of discretion, meaning that it is easier to grant settlement in the face of a suitability issue.
6. Deportation Orders in Settlement Applications
If the applicant is the subject of a deportation order, their application for settlement must be refused.
7. Declaring Offences and Criminality in Settlement Applications
You are required to disclose all offences and subsequent penalties from both the UK and other countries. The application form will make clear where disclosure is necessary, and you will be warned that a failure to declare any criminality may lead to a refusal, or a finding of false representation. A failure to declare something material in an application could result in an allegation of deception, which can attract a 10-year ban from the UK.
All non-custodial sentences and out of court disposals must be declared on the application form. If an applicant has received a non-custodial sentence or other out of court disposal that is shown on their criminal record within the 24 months preceding the date of decision of the application, the application must be refused.
Below is guidance on what constitutes non-custodial sentences and other out of court disposals:
- Suspended sentences. However, if they have been activated, due to the applicant’s reoffending or breaching of conditions, the decision-maker will look at the original suspended sentence. Relevant considerations are the length of the suspended sentence, the circumstances that led to activation, and the time the person will spend in custody following activation;
- Fines. These count as a criminal conviction and forms part of a person’s criminal record;
- Disqualifications from driving. This also forms part of a person’s criminal record and count as a non-custodial sentence for immigration purposes;
The following do not constitute criminality for immigration purposes:
- Community resolutions. These are used for less serious offences or anti-social behaviour, and are not convictions. However, the decision-maker may consider this relevant to the assessment of whether the applicant is a persistent offender or refused on non-conducive grounds;
- Binding over. This does not form part of a person’s criminal record and is to be disregarded for the purposes of counting as a conviction for an offence.
8. Suitability for Settlement: Sentences and Mandatory Refusals
If the applicant has been convicted of an offence and received a sentence of less than 12 months, this will be a mandatory ground for refusal unless 7 years has passed since the end of the sentence.
If the applicant has been convicted and sentenced to a period between 12 months and 4 years, 15 years must have passed for this to not be a mandatory ground for refusal.
A refusal is mandatory where the applicant has been convicted of an offence for which they were sentenced to at least 4 years’ imprisonment, irrespective of how much time has passed.
9. Appealing a Conviction or Pending Prosecution
If you are going through an appeal, you should declare this on the application so that the decision maker can take this into account. If an appeal changes your sentence but does not quash it, meaning you remain convicted of the offence, the new or revised sentence will be considered in your application.
Where a prosecution is still pending for an offence or series of offences, or is yet to be sentenced, the decision-maker will consider putting the application on hold pending the outcome of the criminal proceedings. However, this will only happen if the outcome of the pending proceedings would materially affect how the decision is made, i.e., if this is your first offence, or you have an existing suitability issue which would mean your application could be refused on a discretionary basis, but you have pending proceedings for criminality which would lead to a mandatory refusal. However, if you already have criminality which would lead to your application being refused, then the additional conviction will be immaterial, and the decision-maker can proceed on this basis.
If you have been prosecuted for an offence but acquitted, you will be treated as having no conviction. However, it is possible for the decision maker to nonetheless consider the circumstances that led to the bringing of charges. They are then entitled to conclude that your application should therefore be refused on non-conducive grounds (discussed below).
10. Exceptional Grants of Settlement Outside the Rules
It is technically possible to be granted settlement outside of the Rules, but the government guidance indicates this has an incredibly high threshold, where ‘there are other particularly exceptional compelling or compassionate reasons’. It also states that ‘there must be sufficient evidence to show that your individual circumstances ‘are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of DL [discretionary leave] under this policy’.
An example of this high threshold is that where a child may be granted indefinite leave to remain under the policy because they have a serious or chronic medical condition that cannot be treated outside the UK, the parent should not necessarily be granted indefinite leave to remain in line with the child. Therefore, applications for settlement outside the Rules carry a very high risk of refusal.
11. Limited Leave as an Alternative to ILR
An applicant needs to meet all suitability requirements in order to be granted indefinite leave to remain. However, if the applicant meets all suitability requirements except those concerning offending behaviour with a sentence of under 12 months, then the decision maker may grant them limited leave to remain instead. The decision maker will then consider the individual circumstances of the case, as what may be appropriate for one application may not be appropriate for another.
For example, if you had a six-month custodial sentence for a minor offence committed five years ago, this will be a mandatory ground for refusal. However, if you have since demonstrated rehabilitation, and have other positive factors such as maintaining steady employment and strong family ties in the UK, the decision-maker may refuse indefinite leave to remain or ILR, but grant limited leave to remain. As long as the applicant continues to demonstrate good character before reapplying, this allows for 7 years to pass so that refusal is no longer mandatory, and the applicant can reapply for settlement or ILR.
12. Overseas Convictions and Their Impact on Settlement Applications
The above rules apply in the same way with respect to overseas convictions. Caseworkers will consider these offences in the same way as their equivalent offence in the UK would be approached. If there is no direct match, then they will consider a broad equivalent.
Some overseas convictions may be for conduct that is not criminalised in the UK, such as homosexuality or trade union membership. If an applicant has received a conviction for an offence that isn’t recognised in the UK, this will not be a mandatory ground for refusal.
13. Serious Harm
The Secretary of State may also decide that the presence of the applicant in the UK is not conducive to the public good due to their offending causing serious harm, or that they are a persistent offender who shows a particular disregard for the law.
An offence that has caused ‘serious harm’ refers to an offence that has resulted in significant physical or psychological injury to a victim or victims, or one that has contributed to a broader issue causing substantial harm to a community or society as a whole. If an individual has been convicted of violent, drug-related, racially motivated, or sexual offences, they are typically regarded as having committed an offence that caused serious harm. Where a person is required to sign the sex offenders register they will be considered to have caused serious harm. An offence may be considered to have caused serious harm even if the sentence imposed would not typically result in the refusal of an application as set out above.
14. Persistent Offending
Persistent offending is often indicated by multiple convictions showing a pattern of offending behaviour. This pattern may even be established through multiple out of court disposals. Such a conclusion may be reached notwithstanding the relevant time periods passing since the applicant’s offending. Relevant considerations in determining whether someone is a persistent offender includes:
- The number and frequency of offences;
- The time period over which they occurred;
- Whether significant time has passed since the offending period, and whether this indicates a change in behaviour;
- The severity and nature of the offences;
- Whether the offences have become more serious over time;
- Any pattern in the offending behaviour;
- Whether there has been a consistent disregard for the law.
- Whether the pattern of offending shows that refusing the application would serve the public interest. This is especially important if the individual has been residing in the UK for a significant period. This requires consideration of whether the potential refusal or cancellation would disproportionately impact the person’s right to family or private life.
Where an applicant has served concurrent sentences, the decision maker will consider the longest single sentence received. Where sentences have been served consecutively, the relevant consideration is the combined length of all sentences received.
15. Suitability for Settlement: Non-Conducive to the Public Good
The Secretary of State may also reach a decision that the applicant’s presence is not conducive to the public good on the basis that the applicant’s conduct, which may include convictions which do not fall within the above provisions, or character, association, or any other reasons, make it undesirable for them to be allowed to remain in the UK because they pose a threat to UK society. This is found at paragraph S-ILR.1.8 of Appendix FM.
Things that may engage this ground are:
The applicant is a threat to national security, including involvement in terrorism and membership of proscribed organisations;
- The applicant has engaged in extremism or other unacceptable behaviour;
- The person has committed serious criminality
- The applicant is associated with individuals involved in terrorism, extremism, or war crimes;
- Admitting the person to the UK could unfavourably affect the conduct of foreign policy;
- War crimes, crimes against humanity, and genocide. Reliable information is required for this ground, but it is not necessary to have been charged or convicted;
- The applicant is subject to international travel bans imposed by the UN Security Council or the EU, or sanctioned;
- Immigration offending;
- Inciting public disorder;
- Involvement with criminals and gangs;
- Involvement or complicity in corruption, or profiting from crime.
Factors that weigh into this assessment include:
- The nature and seriousness of the behaviour;
- The potential experience of difficulty in the UK as a result of admitting the person with that behaviour;
- The frequency of the behaviour;
- The other relevant circumstances pertaining to that individual.
The test is deliberately broad to allow for the Home Office to make a proportionate assessment on a case-by-case basis, depending on the nature of the individual’s behaviour and circumstances. All decisions should be fair, balanced, and supported by evidence.
Introduced on 01 December 2020, ‘non-conducive to the public good’ is also contained in paragraph 9.3.1 of the Immigration Rules as part of the Home Office’s attempts to introduce a more robust and consistent framework against which immigration applications are assessed on suitability grounds. Though the relevant paragraph is S-ILR.1.8 of Appendix FM, the Home Office’s application of paragraph 9.3.1 is instructive on how all ‘non-conducive to the public good’ decisions are made. You can read more about refusals on these grounds in our previous article Refusals on ‘Not Conducive to the Public Good’ Grounds. You can also read our commentary on a case concerning refusal of entry to the UK on the basis of non-conductive to public good on national security grounds (Alo & Ors, R. (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2380).
16. Contact Our Immigration Barristers
For expert advice and assistance with your settlement or indefinite leave to remain (ILR) application following suitability issues, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
