There are a number of immigration categories where it is possible to qualify for indefinite leave to remain ILR after 5 years.  Some of these categories include a requirement to spend not more than 180 days outside the UK in any 12 month period during the 5 years.  In this post we look at the immigration routes which permit ILR after 5 years and the continuous residence requirement.

There are a number of immigration categories where it is possible to qualify for indefinite leave to remain ILR after 5 years.  Some of these categories include a requirement to spend not more than 180 days outside the UK in any 12 month period during the 5 years.  In this post we look at the immigration routes which permit ILR after 5 years and the continuous residence requirement.

Indefinite leave to remain ILR after 5 years

There are a number of investment, business and work related settlement routes which allow an individual to apply for ILR after 5 years lawfully in the UK, including:

• Tier 1 (Investor)
• Tier 1 (Exceptional Talent)
• Tier 1 (Entrepreneur)
• Tier 2 (General) Skilled Worker
• Tier 2 (Intra-company Transfer) (ICT)(if granted under the rules in place before 6 April 2010) 
• Sole Representative of an Overseas Business
• UK Ancestry

Other 5 year routes to settlement include the Spouse, Civil Partner and Unmarried Partner routes.

Indefinite leave to remain after less than 5 years

There are also a number of immigration routes which allow an applicant to secure indefinite leave to remain ILR after 5 years, but also have accelerated routes to settlement after 2 or 3 years:

• Tier 1 (Investor)
• Tier 1 (Exceptional Talent)
• Tier 1 (Entrepreneur)

Individuals on the Innovator route are eligible to apply for indefinite leave to remain after spending 3 years in the category, but time spent in the Start-up route will not count as part of this 3 year ILR qualifying period.

ILR after 5 years by combining different immigration categories

In some immigration categories, it is possible to rely on time spent in different categories to qualify for ILR after 5 years.  For example, Tier 2 (General) migrants can combine time spent in the Tier 2 (General) category with time spent as a Tier 1 migrant (other than a Tier 1 (Post Study Work) Migrant or a Tier 1 (Graduate Entrepreneur) Migrant) or as a Representative of an Overseas Business in order to qualify for ILR after 5 years.

However, on the Tier 1 (Investor) and Tier 1 (Entrepreneur) accelerated routes, as well as the Innovator route, the period of time required must be spent in those categories.

ILR 180 day Rule

All of the investment, business and work related settlement routes mentioned above include a requirement to have spent not more than 180 days outside the UK in any 12 months during the qualifying period.

The family migration routes do not have a 180 day rule at the indefinite leave to remain application stage, but absences will be taken into account when applying for British Citizenship.

Calculating the 180 day ILR rule

For settlement applications made from 11 January 2018, absences from the UK are considered on a rolling basis, meaning that any consecutive 12 month period can be considered.

It should be noted that days of travel where the applicant is in the UK for part of the day will not count as an absence for the purpose of an indefinite leave to remain application.

If the 5 year period started before 11 January 2018, then any leave granted prior to that date will be assessed under the old rules, with absences assessed in consecutive 12 month periods ending on the date of application. The Home Office guidance provides the following example for how absences should be calculated:

For example:

The application date is 30 June 2020. The applicant’s continuous period includes the following grants of leave:

• one grant of leave from 1 July 2015 to 28 July 2018 – any absences during this grant of leave will be considered in separate 12-month periods, ending on 30 June each year
• one grant of leave from 29 July 2018 to 30 June 2020 – any absences during this grant of leave will be considered on a rolling basis: you must not include any absences from the previous grant of leave when you assess this/li>

For dependant partners, any absences prior to 11 January 2018 will be disregarded. Any absences from 11 January 2018 onwards will be assessed on a rolling basis in the same way as the main applicant.  Dependant children do not have to satisfy the 180 day ILR rule.

Excessive absences and the ILR 180 day rule 

If there are excessive absences but they are for serious or compelling reasons, it is possible that the Home Office could exercise discretion and allow the ILR application. ‘Serious or compelling reasons’  does not have a strict definition, but the Home Office guidance states that serious or compelling reasons include:

• serious illness of the applicant or a close relative
• a conflict
• a natural disaster, for example, volcanic eruption or tsunami

The indefinite leave to remain guidance also states that if there are serious or compelling reasons, the applicant must provide evidence of this. The evidence should include a letter from the applicant explaining the absence and additional evidence relating to the reason for absence such as medical certificates, birth or death certificates or evidence of disruption to travel arrangements.

British Citizenship after ILR

If you are married to or in a civil partnership with a British citizen then you will be eligible to naturalise as a British citizen as soon as you have been granted indefinite leave to remain and spent 3 years in the UK.

If you are not married to or in a civil partnership with a British citizen, you will be eligible to naturalise as a British citizen after you have held ILR for 12 months and spent 5 years in the UK.

The residence requirements for British citizenship are as follows: 

• No absences for more than 90 days in the last 12 months before applying;
• If you are married to or in a civil partnership with a British citizen, the total number of days absence for the whole 3-year period should not exceed 270. 
• If you are not married to or in a civil partnership with a British citizen, you should not have been outside the UK for more than 450 days in the 5-year qualifying period. 

Contact Our ILR Application Immigration Lawyers

For expert advice and assistance in relation to an application for ILR after 5 years, an accelerated ILR application or any aspects of the ILR Immigration Rules, contact our immigration barristers and lawyers in London on 0203 617 9173.