If you want to live in the UK as a non-EEA citizen, you need to have permission to do so. This permission is normally a visa with conditions attached to it, such as a duty to study at a designated University or to work for a particular UK business. There are two labels attached to most visas that a person must hold when residing in the UK: limited leave to remain and indefinite leave to remain. As a general rule, limited leave to remain is temporary in its validity and will expire unless extended. Indefinite Leave to Remain, on the other hand, is a form of settlement and will allow you to remain permanently in the UK, as long as you do not leave for a period of 2 continuous years. In order to secure indefinite Leave, you must first have held limited leave to remain for usually 5 years, although this may vary.
In this article, we will concentrate on people who have limited leave to remain with a valid visa. We will look at the options for those who have not yet gained indefinite leave to remain and see how this affects their ability to claim welfare benefits in the UK. Including how they can go about getting indefinite leave to remain.
In general, your visa outlines your ability to receive public funds. In most cases, non-EEA citizens in the UK who are currently on a visa will have no recourse to public funds and this is stated clearly on their biometric residence permit. The reasoning for this is simple: you will need to either support yourself or be supported for the entirety of your visa period. This is achieved by having a family member in the UK, a business in the UK or you work for a sponsor. Not only will you not be able to claim public funds, but you will also have to prove your ability to support your stay.
The only time non-EEA citizens can claim welfare benefits in the UK is if they acquire indefinite Leave to remain. The process of applying for indefinite leave to remain takes place at the end of a qualifying visa period (normally 5 years, but there are exceptions). This allows the migrant to cement their stay in the UK for the long term which means they are no longer governed by visa rules. Once you have gained indefinite leave to remain you will then be eligible to apply for welfare benefits with those who have settled in the UK.
To secure indefinite leave to remain, you need to reach the minimum qualifying period specified by your visa route. In the vast majority of cases, this is 5 years. As well as the remaining in the UK for those 5 years, you need to ensure that you’ve not left the country for significant periods within that qualifying period. For instance, you cannot leave the country for over 180 days in any individual year during your stay if you have a Tier 2 General visa, or a sole representative visa. The rules relating to spouse visa holders is slightly less specific and considers whether a British spouse had also been absent when you were. The extended leave criterion ensures that you are normally resident in the UK and spend most of your time in the country. You will need to apply if you wish to gain indefinite leave to remain, and they will assess this against the qualifying criteria laid out in the next section.
To apply for indefinite leave to remain, there are various eligibility criteria that you need to meet. As we’ve already laid out, you need to be in the UK for the minimum qualifying period. You will also need to ensure that you have not left the country for more than is permitted. As well as these basic criteria, you will also need to meet the following:
As long as you meet the criteria, you can apply. You will usually receive a decision within 8 weeks. The processing time will be dictated by how busy UKVI is at the time and also the complexity of your application.
While rare, it is not unknown for UKVI to take exceptional circumstances into account on an application for indefinite leave to remain. If you have spent over 180 days outside of the UK within your 5-year qualifying period, then you may still be able to apply. However, since you have not met the criteria, you will need to supply information that explains the reasoning behind your extended stay outside of the UK.
While there is no defined acceptable reason for a stay longer than 180 days outside the UK, some examples that may be acceptable are:
UKVI will require you to provide evidence of the reason for your extended stay. Official documents such as death certificates and proof of cancellation/amendment of travel arrangements can help to prove that you have a valid reason. As there is no stated definition of what makes up a valid reason, these reasons may still not be accepted. It will be down to the UKVI officer in your case to apply their discretion. If you need help with your application for indefinite leave to remain, then please get in touch with our immigration solicitors.
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