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Frequently asked immigration questions for ILR

January23

FAQs for ILR:

Q0 – My dependant(s) made an application for leave to enter / remain as a (HSMP/WP/PBS) dependant for the very first time before 09-Jul-12 and have held continuous leave since then. Are they affected by the changes to be introduced from 09-Jul-12?
NO

Q1 – Which are the relevant policy guidance notes that I should refer to for self-help?
Points-based system, Tier 1 settlement guidance
Points-based system, Tier 2 and Tier 5 settlement guidance
Codes of practice for sponsored workers
Indefinite leave to remain in closed categories
Indefinite leave to remain – calculating continuous period in UK
Criminality requirement for settlement

Q2 – Which application form do I need to use to apply for settlement?
SET(O). Google UK BA and set o for the latest form as this can change
Dependant(s), if any, eligible for settlement at the same time as the principal migrant must be included (as dependant) in the SET(O) form.

Q3 – When does my ILR qualifying period start?
There are two scenarios. One is that ILR qualifying visa (e.g. Work Permit, Tier 1, HSMP, etc) was obtained by switching into that category from another visa whilst still in UK. Second is that ILR qualifying visa was obtained out of country. For first case ILR clock starts from the day the passport was stamped with that visa. For second case ILR clock starts from the day when applicant first entered UK on that qualifying visa. E.g. If someone got Tier 1 visa from out of UK on 1st February 2006 and entered the UK for first time on 20th February 2006, then ILR clock starts from 20th February 2006.

Q4 – What is the earliest day I can apply for ILR?
One can apply no earlier than 28 daysbefore the 4th (HSMP before 03-Apr-06) / 5th (other economic migrants) anniversary of either date of entry in the UK (overseas applications) or date of switching (in-country applications) as a economic migrant in a category that leads to settlement. In all cases, one must apply for ILR or for another visa before expiry of current visa.

Q5 – My current leave as economic migrant expires before I complete the qualifying residential period. Can I apply for ILR?
Under current directions you must apply for extension before your current leave expires. The only exception to this, as per current UKBA guidances, is if you delayed your entry in UK by (at most) 3 months 90 days from date of issue of entry clearance and fall short of completing the residential qualifying period due to delayed entry in the UK. In such case one may apply for settlement before the current leave expires.
Note: If you have switched immigration categories (e.g. – Tier 2 to Tier 1, Tier 2 (ICT) to Tier 2 (General), went abroad to change immigration categories through entry clearance) during the qualifying residential period, and if you have not been granted 5 years continuous leave since the issue of entry clearance, then this concession does not apply to you.

Q6 – Who is covered by HSMP JR(s)?
One who applied for HSMP approval before 08-Nov-06. Every other date – other than the date of this application (for HSMP approval) – is irrelevant in determining whether one is covered by HSMP JR or not.

Q7 – I am an economic migrant covered by HSMP JR. What exemptions apply to me, in context of settlement?
1. You are not subject to eligibility criteria (point based) that a Tier 1 (General) migrant is.
2. Your dependant(s) are exempt from the “(2 year) qualifying residential period” requirement.
3. You (and dependant(s), if any) are exempt from LITUK test.
4. You (and dependant(s), if any) are exempt from the new criminality threshold.

Q8 – What is the minimum salary requirements for ILR?
For Work Permit holders and Tier 2 migrants, salary should be at least equal to the relevant SOC code as mentioned in the Codes of Practice (COP).
For Tier 1 (General) migrants, points are awarded according to their previous earnings in a consecutive 12 month period (within 15 month window) preceding the application.
Note for Tier 1 (General) migrants – The points one must score depends on the date of initial application and the rules in place on the date of such application

Q9 – I am a WP migrant. My employer has increased my salary to match the COP but I don’t have any payslips that reflect the new salary. Can I apply for settlement?
It is mandatory for WP and Tier 2 migrants to provide one payslip and a corroborating bank account statement to reflect payment at the rate specified in COP, in addition to the letter from the employer

Q10 – I’m a WP migrant. Neither is my job / occupation listed in the COP nor is there an equivalent job in the COP that I can determine for my current role. Can I apply for settlement?
Yes you may. In such case, please read the (Requirements for work permit holders – no code of practice or appropriate salary rate) section given in the Indefinite leave to remain in closed categories document.

Q11 – I am presently a Tier 2 (ICT) migrant. Am I eligible for settlement after having lived and worked in the UK for the required qualifying residential period?
If you entered UK as a WP holder (Intra Company Transferee) and switched to Tier 2 (ICT) at any time, or you applied for Tier 2 (ICT) before 06-Apr-2010, then you are eligible for settlement under the current rules (245GF(d)).

Q12 – Will my spouse / partner qualify with me for ILR?
For WP holders (pre-PBS) and HSMP JR migrants covered by HSMP Judicial review, all dependants qualify for ILR along with main applicant irrespective of length of stay in UK (196D).
Initial application for leave as PBS dependant made before 09-Jul-12: Spouse / partner must be in the UK as “dependant” on the date of the settlement application to be included as a dependant. The (spouse/partner) dependant must have lived with you in the UK for at least 2 years in a marital relationship, civil partnership or in relationship akin to marriage or civil partnership (319E(d)).

Q13 – Do I require P60s for all 5 years?
It is advisable to have P60s as that is the easiest way to provide evidence of your economic activity (HSMP/Tier 1G) or that your employment was in line with WP/CoS issued (WP/Tier 2). If you do not have P60s, then you can call HMRC and they can send you a letter showing your tax history and income for last 5 years. Usually the HMRC letter arrives within 2 weeks.
Alternatively, one may use payslips covering the period for which P60(s) is missing.
Do note that some caseworkers ask for P60s for all the five years and some don’t. No one can tell you whether or not your caseworker will ask for them (and how many), so the best suggestion is – be prepared for the worst and hope for the best!

Q14 How to get a slot as they are booking online? Some representatives can arrange appointments

Q15 – Do I need employer letter from my current employer?
For Tier 2 / WP migrants, this is a must and can not be avoided. It would need to be an original letter on letter headed paper and an original signature.
For HSMP / Tier 1 (General) migrants there is no such requirement or need.

Q16 – Maximum absences from the UK (economic migrants)
No more than 180 whole days absence are allowed in any of the five (Tier 1 General, Tier 2, Tier 1 Exceptional Talent, Tier 1 Entrepreneur, Tier 1 Investor), two (Tier 1 Investor), three (Tier 1 Entrepreneur, Tier 1 Investor) or four (HSMP ILR JR) consecutive 12 month periods, preceding the date of the application for indefinite leave to remain (ILR). The specified continuous period is counted backwards from the date of the ILR application.

a) If you have spent time in the UK as a “sponsored” migrant during the qualifying residential period (e.g. – work permit holder; representative of an overseas newspaper, news agency or broadcasting organisation; representative of an overseas business; employee of overseas governments (except those exempt from control) or the United Nations or other international organisation of which the UK is a member; minister of religion, missionary or member of a religious order; airport-based operational staff of overseas-owned airlines; private servants in diplomatic households; domestic workers in private households; person established in business under an EC Association Agreement; Tier 2; Tier 5 International agreement) then absences must be for a reason that is consistent with the original purpose of entry to the UK or for a serious or compelling compassionate reason and the applicant is required to provide evidence in the form of a letter from the employer setting out the reasons for the absences, including annual leave. Likewise, applicant will also be required to provide evidence of absences on account of compassionate and compelling reasons.

b) If you have time in the UK as a “not-sponsored” migrant under certain immigration categories – UK ancestry; business person; investor; innovator; writer, composer, or artist; retired person of independent means; Tier 1 (General); HSMP (not applying under Appendix S of the rules, i.e. – after 5 years) – then absences must be for reasons connected with the applicant’s purpose for being in the UK or for serious or compelling compassionate reasons. Evidence must be provided for compelling or compassionate reasons only.

c) For the Tier 1 Investor, Tier 1 Entrepreneur, Tier 1 Exceptional Talent and HSMP (applying under Appendix S of the rules, i.e. – 4 year ILR) categories there is no requirement to give a reason for absences if they do not exceed 180 days in any of the five, four, three or two consecutive 12 month periods of the continuous period, counted backwards from the date of application for indefinite leave to remain (ILR).

Q17 – How to count absences from UK?
The specified continuous period is counted backwards from the date of the ILR application. For example, if the date of application is 11 November 2012, the consecutive periods would be as follows:
Year 1 – 11 November 2012 to 10 November 2011
Year 2 – 11 November 2011 to 10 November 2010
Year 3 – 11 November 2010 to 10 November 2009
Year 4 – 11 November 2009 to 10 November 2008
Year 5 – 11 November 2008 to 10 November 2007

Absences are counted in “whole days”. Day(s) of departure and arrival are not to be included when calculating (total) days of absence. Bank / public holidays and weekends are to be included in absences if one was absent from UK on such days.

Q17 – I entered UK 40 days after the date of issue of entry clearance. Are these 40 days counted as absence?
If you haven’t entered UK there is no absence to consider .. you remain “not arrived”. To be absent from UK one has to first enter UK (arrive) and then leave.

Q18 – Which documentary evidences should I submit?
This depends on your application and your circumstances, so read the relevant settlement policy guidance. Although, a legal representative will be able to help

Q19 I need to take photocopies of documents submitted?

The application form states the following – You should photocopy each of these documents and provide the copies in addition to the originals. You should also provide passport/s along with photocopies of any pages that contain personal details, visas or immigration stamps (foreign or UK). Certainly in Croydon PEO these are required.

Q21 – Is there a “minimum balance” or “maintenance fund” required for ILR?
No, there is no absolute minimum balance required. However it is advisable to show bank statements with some savings to demonstrate that you can support yourself (and dependants) if required.

Q22 – When can I take Life in UK test?
Life in the UK test can be taken at any time prior to applying for ILR. Do note that you need to book a place at least 7 days in advance and that it must be taken at least 2 working days before an in-person application. Keep in mind that certificate given for passing the test is a very important document. It is mandatory to provide this (where applicable) with your application and if you lose the certificate, you will need to take the test again. As on date, LITUK test result never expires (is valid indefinitely).

Q24 – Do I need to submit a certificate(s) to prove that I and my dependants are free from unspent convictions?
No. UKBA will do the necessary checks on their own.

Q25 – Payment at PEO
Most people pay be card (also option of paying by postal order). Best to call your bank in advance and let them know of the transaction due to happen. Also have bank contact numbers ready in case card gets declined and you need to contact the bank. Only 100% sure way is to pay by postal order but that will cost money to get postal order. Most people do not have any problem paying by card.

Q26 – Is it must to take dependants to ILR appointments at PEO?
If any dependants are applying for settlement, then Yes.

Q27 – Does premium appointment at PEO guarantee same day service?
No. Although vast majority of cases are decided on the same day for PEO appointments, it is not a guarantee. There can be delay due to IT problems at home office, in which case you will be told the outcome of your application and then advised whether to come back in few days to collect the passport of they will send the passport by mail. In some cases, case worker may not be able to decide on your application on the day if they need to do more checks to satisfy themselves. In this case your application will be put in a queue and dealt with other postal applications. So there is a risk of losing money for not getting much (in fact getting more stress due to realising there may be a problem with your application).

Q28 – Does my UK-born child qualify for british citizenship?
Child born in UK before either parent is granted settlement: There is no requirement for a non-travelling UK-born-child to be included in the settlement application of the parent (that the child is a dependant of). Immediately after a parent is granted settlement, their child is entitled to register for British citizenship (Section 1(3)), irrespective of child’s immigration status.
Child born in the UK after either parent has been granted settlement: Is a British citizen by birth.

Q30 – My UK-born child has never applied for leave. Can I skip including him in the settlement application?
The important point is that children born in the UK are not required to seek permission, if they remain in the UK. Children born in the UK, who are not British, are not illegal entrants because they have not entered unlawfully. If they have not applied for leave to enter/remain in the UK, then they are not overstayers nor in breach of their conditions of leave because they do not have any conditions to breach; in principle, therefore, they may remain in the UK indefinitely! After settlement, register your child as a British citizen (as explained in the question above).

Q31 – My UK-born-child was issued leave previously. Can I skip including him in the settlement application even though his leave will expire before I can expect my settlement to come through?
Yes, if you have no reason to believe that your settlement application will be refused. If you are granted settlement then whether the child has valid (PBS or non-PBS) leave or not, or whether dependant leave will expire on the day you apply for settlement or 2 years down the line – becomes irrelevant. Any “overstay” won’t affect the child’s entitlement for British citizenship, if/when you’re granted ILR. After settlement, register your child as a British citizen (as explained above).

Q32 – When should I consider including my UK-born child in my settlement application?
Under the following circumstances:
1. – If your UK-born-child had applied for leave in the past which is due to expire before you can expect a decision on your settlement application and you have reason(s) to believe that your settlement application may be refused. Including the child in your application will ensure that the child gets the same appeal rights as you do.
2. If you wish to travel abroad with the child soon after you receive settlement and do not have the time to apply for child’s registration and British passport (and receive these documents) before you travel.

Q33 – Does PSW leave count towards ILR?
No and yes. Time spent in UK under Tier 1 (PSW) or IGS or SEGS or PFT (permit free training) or as student nurse cannot be included when applying for settlement under economic route (WP / HSMP / PBS). However if applying under 10 years long stay ILR category any legal stay in the UK (including those under immigration categories mentioned above) can be included.

Q34 – I am a Tier 1 (General) migrant. For my settlement application I am unable to determine the points that I will score for my age or whether I can score points on the basis of a bachelor’s degree qualification?
Reading this topic should help.

Q35 – I am a Tier 1 (General) migrant. How can I satisfy the following instruction in section 11L of the SET(O) form – “For the period before you were granted leave as a Tier 1 (General) migrant, documents showing that you met the relevant requirements of the immigration rules.”?
1. If your (5 year) qualifying residential period preceding settlement application does not include a period of stay in the UK as a WP migrant, Tier 2 migrant, innovator, self-employed lawyer or as a Writer, Composer or Artist, and you never entered UK before being granted leave in any of these categories then this instruction does not apply to you.
2. If your (5 year) qualifying residential period preceding settlement application includes a period of stay in the UK as a WP migrant, Tier 2 migrant, then this instruction applies to you and the documentary evidences required will depend on which leave you were under.
3. If you were in the UK in any other immigration category (other than Tier 1 (General) and other than any of the categories mentioned in 1. above) and switched to Tier 1 (General) this instruction may apply to you and the documentary evidences required will depend on which leave you were under.

Q36 – Where can I find the PBS calculator for ILR?
There is only one PBS calculator.

Q37 – Is there a qualifying residential period for minor dependants?
A minor (under 18) is not subject to any qualifying residential period (319J).

 

NEW Settlement guidance

December21

For those applying for settlement, please find the link to the UK BA’s guidance:

 

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/settlement/guidseto04091.pdf

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