Married for Years without Applying for Spouse Visa: Applying for ILR Based on the Age of Relationship
As a non-EEA citizen living in the UK for many years with a British partner or settled person, you may be contemplating applying for Indefinite Leave to Remain (ILR). It would seem logical on the basis of a UK family and duration of leave that you should be able to secure ILR. Indeed, you may be, but it may not be based on your relationship with your British spouse/partner. Why? Because to apply for ILR due to your relationship, you would have had to have held a family spouse visa for five years. And if you were to apply for a spouse visa now, the clock may be reset on the amount of time you have already spent in the UK which counts towards ILR. The good news, however, is that you may be eligible for ILR based on the visa that you currently hold. In this article, we will discuss the visa types which can lead to ILR (most commonly after five years) and the ten-year-long residence route.
What is Indefinite Leave to Remain (ILR)?
With ILR, migrants are no longer subject to immigration control. In practical terms, this means they will no longer need to apply for further visa extensions, can choose to work (or not), change employers, use the NHS without cost, leave and enter the country without restriction, and have recourse to public funds. After a further year, ILR holders may then be able to apply for British citizenship.
Which Visas Allow ILR after Five Years of Continuous Residence?
As we have established, applying for ILR on the basis of having held a partner visa for many years is only one of many possibilities. Under the following visa types, to secure ILR, migrants must have held the visa for a continuous period of at least five years:
- Tier 1 (investor) visa
- Tier 1 (entrepreneur) visa
- Tier 1 (exceptional talent) visa
- Tier 2 (general) work visa
- Tier 2 (intra-company) work visa
- Family visa – including the spouse/partner visa
- UK Ancestry visa
- PBS visa dependants
- Sole representative of an overseas business
- Turkish workers or businessperson
If you have already held one of these visas for five years or more, you may be able to apply for ILR immediately. In order to do so, you will need to ensure that your five years in the UK were continuous; i.e. that you have not spent any more than 180 days outside of the UK in any consecutive 12-month period.
Some visas do allow ILR in less time, including the investor visa, which depending on the level of investment made by the visa holder, may allow accelerated time to ILR of two or three years.
What Are the Other Criteria which Must Be Met to Apply for ILR?
In addition to the five years of continuous residence in the UK, you will also need to provide evidence that you have:
- No criminal convictions
- Not breached any immigration laws
- Passed the Life in the UK test
- Meet the English language requirement - if you are not from an eligible English-speaking country or you do not have a degree (or higher) taught in English, then you may need to have passed an approved English language test at the CEFR B1 level or higher. There are other exemptions that apply based on age and any physical and mental conditions.
Can I Apply for ILR under the Ten-year Long Residence Route?
If you have been living lawfully and continuously in the UK for ten or more years, you may be able to secure ILR based on long residence.
Your 10-year qualifying period commences from when you arrived in the UK with a visa, or when you were given permission to stay in the UK.
There are some important features of this route to ILR. Firstly, once you have passed the threshold for long residence, it will remain yours. The long residence route guidance states, “Once an applicant has built up a period of 10 years’ continuous lawful residence, there is no limit on the length of time afterward when they can apply. This means they could leave the UK, re-enter on any lawful basis, and apply for settlement from within the UK based on a 10 year period of continuous lawful residence they built up in the past.”
The second feature is that unlike the five-year ILR qualification period, it is the amount of lawful time in the UK which counts, not the types of visa you were on.
It is possible to apply for a settlement based on long residence no more than 28 days before reaching the ten-year qualification period. Applications received before 28 days will be refused. As such, if you are looking to apply for ILR as early as possible, it is crucial to calculate the amount of continuous residence in the UK accurately and to submit the application on the correct day. Factors such as a period of overstaying may count against the applicant, as will any time have spent in prison.
In order to apply for ILR on the basis of long residence, you will need to:
- Have been continuously in the UK – this means you must not have been out of the UK for more than 180 days at a time, or 540 days in total
- Have kept within the terms of your visa/s at all times
- Pass the Life in the UK test
- Meet the English language requirement
If you have been married for several years in the UK, the fact you have not applied for a spouse visa need not prevent you from applying for ILR. You may be able to apply to remain indefinitely after five or ten-year residence in the UK. If you are yet to reach the qualification point for ILR, it may be preferable to remain on your current visa, where possible, until you have reached the time required. If you are unsure of the best option to secure ILR, seek legal advice from immigration Solicitors.
Complete guide on how to get indefinite leave to remain on a spouse visa