Immigration options for ex-members of HM Armed Forces
Members of HM Armed Forces are, while they are serving, free from the restrictions imposed by UK immigration law. Upon enlistment with the appropriate department of HM Armed Forces, an applicant is entitled to have their passport stamped accordingly to confirm that they are free from immigration restrictions whilst they are serving.
Exemption from immigration control
Section 8(4) of the Immigration Act 1971 exempts certain members of the Armed Forces from immigration control. Section 8 provides that so long as the member of the home forces is subject to service law, they remain exempt from immigration control. The section also includes members of a Commonwealth force, serving or posted for service in the UK as a member of a visiting force (including NATO forces), and also persons serving, or posted for service as a member of an international headquarters or defence organisation.
On entry to the UK the passenger will have their passport stamped by the Immigration Officer, or after entry, the passport can be submitted to the UK Border Agency to be stamped as ‘visa exempt’. The passport will need to be submitted with a covering letter from the appropriate military unit confirming date of enlistment and final service date. The passport will be returned endorsed with a stamp confirming exemption from immigration control while section 8(4) of the Immigration Act 1971 continues to apply.
While the applicant is serving in the Armed Forces and while they remain exempt from immigration control, it is open to them to apply for their spouses/civil partners and children to travel to the UK. There are specific provisions within the Immigration Rules for dependents of HM Armed Forces which are, for the time being, less stringent than the requirements set out within Appendix FM.
Discharge from HM Armed Forces
A person will cease to become exempt from immigration control as soon as their period of enlistment, service or training comes to an end. They will be sent a letter from the UK Border Agency informing them that they are no longer exempt from immigration control and have 28 days from the date of discharge in which to either leave the UK or to make an application to regularise their stay.
If an applicant has been discharged from service on medical grounds due to injury sustained during operational duties, the requirement for four years’ service will usually be waived.
Where a person has been discharged on medical grounds due to an injury or medical condition which is attributable to their service, for example an injury received on duty but outside an operational theatre (UK Border Agency gives an example of injury sustained during pre-deployment training) the Home Office has a discretion to waive the 4 years’ service requirement. Whether discretion is exercised depends upon a number of factors, including the seriousness of the injury, the long-term prognosis, the need for ongoing medical treatment and the length of service up to the date of discharge.
Application for settlement
The Immigration Rules contain specific provisions for those discharged from HM Armed Forces. Paragraph 276L confirms that indefinite leave to remain may be granted where the applicant:
• Has completed at least four years’ service with HM Armed Forces;
• Was discharged from HM Armed Forces on completion of engagement;
• Was not discharged more than 2 years before the date of application;
• Has current leave to remain or holds entry clearance in that capacity; and
• Does not fall for refusal under the general grounds for refusal.
In order to meet the requirements of the rules the UK Border Agency will expect to see certain documentary evidence. Our immigration barristers are able to advise on the documentation required to support an application for settlement in order to maximise the prospects of the application succeeding.
The general grounds for refusal will apply to all applications submitted for settlement on the basis of discharge from service. These are set out within part 9 of the Immigration Rules, within paragraph 322.
One potential ground for refusal is based on the character requirement; where a person has a criminal conviction, this will result in the application being refused, unless a minimum period of time has elapsed.
The statement of changes in the Immigration Rules which came into effect on 13 December 2012 confirm that applications for ILR by member of HM Forces will not be refused with reference to paragraph 320(1C)(iii) or (iv). These provisions apply to persons who were convicted of an offence for which they received a sentence of less than 12 months unless a period of 7 years has passed from the end of the sentence, or they have been convicted of, or admitted, an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record, within 24 months of the date of application. This includes police cautions, community orders, fines etc.
Following the grant of indefinite leave to remain it is possible to make an application for naturalisation as a British citizen. The earliest that a naturalisation application can be submitted is one year from the date of the grant of indefinite leave to remain.
The UKBA requires applicants to be of good character. Applications submitted on or after 13 December 2012 will no longer be considered with reference to the Rehabilitation of Offenders Act 1974; instead UKBA will consider the good character requirement with reference to their own guidance. This states that where a sentence of 4 or more years’ imprisonment has been imposed the application should be refused, regardless of when the conviction occurred. Between 12 months and 4 years imprisonment, 15 years must have passed since the end of the sentence. A sentence of imprisonment up to 12 months applicants will be required to wait for 7 years, and persons who receive a non-custodial sentence the conviction must be more than 3 years old. The UK Border Agency does retain some discretion when dealing with very minor offences.
Our immigration barristers will be happy to provide advice and representation for members of the HM Forces seeking settlement or further leave to remain. Our professional service includes providing advice as to the requirements of the Immigration Rules, advice as to supporting documentary evidence, checking of supporting documents, assistance with completion of the application form, drafting of expert legal submissions in support of the application, submission of the application to the UKBA and acting as your agent in respect of all correspondence received from the UKBA.
If you would like further advice on applying for settlement or further leave to remain as a member of the HM Armed Forces having been discharged from service then please contact our immigration barristers in Covent Garden, London on 0203 617 9173 or email firstname.lastname@example.org.