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FAQs for ILR - Tier 1G/Tier 2/WP/HSMP - Read before posting

Please use this section of the board for queries about Indefinite Leave to Remain (ILR). However please use the EEA-route section for queries about the EEA-route equivalent of Permanent Residence (PR).


This section is relevant irrespective of whether current status is Tiered or Non-Tiered.

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xyz123
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Joined: Mon Jan 25, 2010 1:58 pm

FAQs for ILR - Tier 1G/Tier 2/WP/HSMP - Read before posting

Post by xyz123 » Thu Dec 17, 2015 8:36 pm

Hi All

This forum is quite popular and used by many. However most questions are just repetitions of what has already been answered. So I have done some FAQs for ILR which would be a good post to start for all. Though below is more applicable for WP/Tier 1/Tier 2/HSMP migrants applying for settlement under economic route (5 years) there are some general pointers here as well and should be worth a read.


Please note: You can apply to settle as a Tier 1 (General) worker until 5 April 2018.





Q1 - 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.



Q2 - Which are the relevant policy guidance notes that I should refer to for self-help?

Q3 - Which application form do I need to use to apply for settlement?
SET(O).
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.




Q4 - When does my ILR qualifying period start?

According to the updated guidance (Apr. 2016), the qualifying period for ILR for all PBS categories starts from the date of issue of entry clearance / leave to remain (as the case may be). It does not matter whether you arrived in the UK within or after 90 days of entry clearance being issued. The days between entry clearance effective (issue) date and the date of entry in the UK will be treated as "absence from UK" (see Q20).
Absences which will not break continuity in the continuous period wrote:Period between the issue of entry clearance and entering the UK
The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the relevant 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.
If the delay is more than 180 days, you can only include time after the applicant entered the UK in the continuous period calculation.

Q5 - What is the earliest day I can apply for ILR?
One can apply no earlier than 28 days before the 4th (HSMP before 03-Apr-06) / 5th (other economic migrants) anniversary of their "start of qualifying period" (as explained in Q3). In all cases, one must apply for ILR or for another visa before expiry of current visa.
Use the date calculator to ascertain the "28 days window".



Q6 - 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. If the extension application remains undecided by the time you become eligible for settlement, you may vary the extension application to settlement application.



Q7 - 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.



Q8 - 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.



Q9 - What is the minimum salary requirements for ILR?
For WP migrants and Tier 2 migrants, salary should be at least equal to the relevant SOC code as mentioned in the current Codes of Practice (COP) / Appendix J.
Tier 2 (General / Sportsperson) migrant applying for settlement after 05-Apr-2016 should read Q22 below.

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 (245CD(e) and 245CD(g)). The date on which the leave was granted is irrelevant. Likewise, whether you earn more or less or same as at the time of initial / extension application is irrelevant as long as you score the min. required points at the time of settlement application.



Q10 - 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 (245GF-SD or 245HF-SD).



Q11 - 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.



Q12 - 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)).



Q13 - Will my spouse / partner qualify with me for ILR?
For WP holders (pre-PBS) and HSMP JR migrants covered by HSMP JRs, 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)(i)). This "2 year" stay in UK need not be as a "dependant" and can include "absences from UK".
Initial application for leave as PBS dependant made after 08-Jul-12: The PBS dependant will be eligible for settlement only after completing "5 year probationary period as a dependant of the principal migrant" (319E(d)(ii)). This "5 year" stay in UK can include "absences from UK".
See also Q19 and Q23.



Q14 - Will my child qualify with me for ILR?
For WP holders (pre-PBS) and HSMP JR migrants covered by HSMP JRs, 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: The child (dependant) will be eligible for settlement at the same time as the principal migrant becomes eligible for settlement, irrespective of the child's length of stay in the UK (319J(e)(iv)), provided the other parent is in the UK lawfully (in any immigration category).
Initial application for leave as PBS dependant made after 08-Jul-12: The child (dependant) will be eligible for settlement only when the other parent (in UK as PBS dependant or as a principal migrant in another immigration category) becomes eligible for settlement (319J(e)(i)), irrespective of the child's length of stay in the UK.

In all cases, if the child has a single parent in the UK then the parent will need to prove sole responsibility for the child (319J(e)(i) and 319J(e)(ii)).



Q15 - Based on the question above, my spouse / partner does not qualify for ILR at the same time as me or is not applying at the same time as I for some reason. What application should my (dependant) spouse / partner make to extend stay in UK and apply for settlement later?
See Dependants of ILR (economic, 5 year route) applicants. For further queries on the matter (extension of stay for dependant(s)), please post in this forum.



Q16 - 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!



Q17 - Do I need employer letter from my current employer?
For Tier 2 / WP migrants, this is a mandatory requirement.
For HSMP / Tier 1 (General) migrants there is no such requirement or need.



Q18 - What are the requirements regarding "absences from the UK" and what are the documentary evidences needed?
WP and HSMP migrants are not subject to these requirements.

For PBS migrants:
No more than 180 whole days absence are allowed in any of the five 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 (see Q20).

For specific evidence(s) required, read the immigration rules that apply to you - 245AAA (all), 245CD-SD (Tier 1 General), 245GF-SD(B) (Tier 2 ICT), 245HH(B) (Tier 2 General)

See also Indefinite leave to remain – calculating continuous period in UK.
Interim caseworker action – missing evidence
If an applicant is required to provide specified documents from their employer explaining their absences and fails to do this, and the absences do not exceed 30 working days plus statutory public holidays per annum (for example, such absences are likely to be consistent with paid annual leave), you can choose, having regard to all the circumstances of the case, to consider the application without this documentation.




Q19 - What are the requirements regarding (maximum) absences from the UK for a dependant og PBS / non-PBS economic migrants?
A dependant is not subject to "maximum absences from the UK" requirement.




Q20 - How to count absences from UK?
***** Note Changes effective from 11 January 2018 *****
Rolling absence less than 180 days per 12 month period.
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.



Q21 - I entered UK 40 days after the date of issue of entry clearance. Are these 40 days counted as absence?
Yes. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the relevant 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.



Q22 - I am a Tier 2 (General / Sportperson) migrant eligible for settlement on or after 06-Apr-2016. What changes to current rules will affect me?
For the purpose of settlement, you will need to earn either the minimum salary threshold specified for the given year (as below) or the rate of pay as specified in Appendix J (on such date) for your SOC code, whichever is higher.
The minimum salary threshold for the years (as specified in 245HF on date):
  • on or after 06-Apr-2016 -> gross annual salary £35,000
    on or after 06-Apr-2017 -> gross annual salary £35,000
    on or after 06-Apr-2018 -> gross annual salary £35,500
    on or after 06-Apr-2019 -> gross annual salary £35,800
    on or after 06-Apr-2020 -> gross annual salary £36,200
    on or after 06-Apr-2021 -> gross annual salary £36,900
You need not earn the specified salary for the whole year preceding the settlement application. Documentary evidence(s) to show that yu earned the required salary in the month preceding the application will be sufficient, just as it is currently (245HH).

Note:
If, at the time of application for settlement a Tier 2 (General) migrant, is under sponsorship for a occupation that appears, or has appeared on the following lists:
  • 1. Shortage Occupation List in Appendix K
    2. occupations skilled to PhD-level as stated in the Codes of Practice in Appendix J
during the 5 year qualifying residence period, then the above stated conditions do not apply. In other words, such a migrant is exempt from these (minimum salary threshold) conditions.




Q23 - What documentary evidence(s) should I use to prove cohabitation?

SET(O) form asks for evidences of cohabitation when a spouse / civil partner is named in the settlement application (see section 10A of the SET(O) form). Refer to FLR(M) or SET(M) to understand the sort of documentary evidence(s) UKV&I accepts as proof of cohabitation.

Do note that the residence period for which cohabitation evidences is required does not necessarily have to be the period immediately preceding the application but can be any qualifying residential (2 or 5 year) period since the date of (first) entry of the dependant in the UK as a PBS dependant.
The items of correspondence should be addressed to you jointly or in both your names. Examples of acceptable items are listed below. The documents provided must be originals. Photocopies are not acceptable.

The dates of the items of correspondence should be spread evenly over the whole 2/5 years. They should be from at least 3 different sources. If you do not have enough items in your joint names, you may also provide items addressed to each of you individually if they show the same address for both of you.

For example - Four items of correspondence in joint names to the same address and two items addressed to each partner at the address. In total eight items would need to be submitted. If you and your partner have no bills or correspondence in joint names, you will need to submit twelve items (six each) of correspondence, evidencing that you reside together at the same address.

If you and your partner lived with relatives or friends for some or all of the 2/5-year period, please provide a letter from the relative(s) and/or friend(s) confirming this.

If you did not live together for any part of the 2/5-year period, tell us the reasons for this and whether you stayed in contact with each other during this time, and provide any relevant supporting evidence.

Please give an explanation on a separate sheet if you cannot provide six items; if the items are not addressed to both of you; or if they do not cover the 2/5-year period.

Examples of acceptable items of correspondence
  • • Letters or other documents from government departments or agencies, for example HM Revenue and Customs, Department for Work and Pensions, DVLA, TV Licensing.
    • Letters or other documents from your GP, a hospital or other local health service about medical treatments, appointments, home visits or other medical matters
    • Bank statements/letters
    • Building society savings books/letters
    • Council tax bills or statements
    • Electricity and/or gas bills or statements
    • Water rates bills or statements
    • Mortgage statements/agreement
    • Tenancy agreement(s)
    • Telephone bills or statements
Note: The requirement that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms has been judged unlawful. Therefore, flexibility (if you cannot provide the specified documents as above) should be expected for settlement applications as well.




Q24 - Do 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).




Q25 - 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.




Q26 - Do I need to provide evidence that I have registered with the police during my stay in the UK?

Under the immigration rules (Part 10 and Appendix 2), citizens of certain countries are required to register with the police. Requirement to register with the police should have been noted on the vignette issued and/or the BRP (if issued).



Q27 - 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).




Q28 - How can I and/or my dependant(s) fulfill the English language requirement for settlement?

See FAQs - English language requirements for settlement




Q29 - Do I need to submit a certificate(s) to prove that I and my dependants are free from spent conviction(s) or have unpsent conviction(s)?

No. UKBA will do the necessary checks on their own.
It is only when one is unsure of whether he / she has any "unspent convictions" on record, one may consider paying for a Basic Disclosure - only for his / her own peace of mind.
You must give details of all unspent and spent criminal convictions. This includes road traffic offences but not fixed penalty notices (such as speeding or parking tickets) unless they were part of a sentence of the court. This includes all drink-driving offences.


Q30 - Is it must to take dependants to ILR appointments at PEO?

If any dependants are applying for settlement, then yes.




Q31 - 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).



Q32 - If my settlement application is refused, can I appeal against the decision?
If a decision to refuse is made on a date that you have valid leave remaining, you will not be granted the right of appeal. If a decision to refuse is made on a date that your leave has expired (or is likely to get expired by the time the refusal is communicated to you), then you will be given the right to Administrative Review.
If given the right to AR, then you must do so within the stipulated time (14 days, the letter will tell you that too). For those 14 days, your stay in the UK will be legal. If you submit the AR within the stipulated time your leave will continue under section 3C until all appeal options are exhausted. If you don't, then you will become an overstayer at end of the time period given. Staying in UK any longer than 28 days from the date of becoming an overstayer may negatively influence entry clearance application(s) in future.



Q33 - 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.




Q34 - 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).



Q35 - 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).



Q36 - 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 AR 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.




Q37 - My child applied for PBS dependant leave for the first time before 09-Jul-12 and my partner is not applying for settlement with me. Can I include the child as a dependant in my settlement application?

Yes, you may (319J(e)(iv)).



Q38 - My child applied for PBS dependant leave for the first time on / after 09-Jul-12 and my partner is not applying for settlement with me. Can I include the child as a dependant in my settlement application?
No, the child will have to wait until your partner becomes eligible for settlement, to be included in your partner's settlement application as a dependant (319J(e)(iv)).



Q39 - I am a Tier 1 (General) migrant. How can I satisfy the following instruction 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."?
First, note the use of "and" in 12L. People overlook it and get confused.
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 (e.g. - WP authorisation, Letter from then employer confirming employment, salary slips, P60, evidence of self-employment, etc.).
3. If, during these 5 years, 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.



Q40 - I am unable to answer the following question in SET(O) form: "When did you (the main applicant) first enter the UK? This refers to the date of your first entry into the UK at the beginning of the period of stay on which this application is based."
It is the date of your first entry in UK (if applied for entry clearance from abroad) or date of issue leave to remain (if applied within UK) in the immigration category that the applicant held exactly 5 years (ago) before the date of the settlement application.



Q41 - Does PSW leave count towards ILR?
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). That said, if applying for settlement under "long residence" category any legal stay in the UK (including those under immigration categories mentioned above) can be included.



Q42 - 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.



Q43 - Do I and/or my dependants have to pay IHS when making a settlement (ILR) application?
No.



Q44 - Is there a qualifying residential period for minor dependants?
A minor (under 18) is not subject to any qualifying residential period (319J).



Q45 - I am Tier 1 (General) migrant applying for settlement. What type/format of bank statements does Home Office accept?
In exactly in the format as it was required for extension application.



Q46 - What is the process of booking appointment to apply in person? What is the best time to search for appointments?
Post queries on the matter in General UK Immigration forum.





Click on the links for more / detailed information on the subject.




Hope this helps.

geriatrix
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Joined: Fri Mar 17, 2006 3:30 pm
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Re: FAQs for ILR - Tier 1G/Tier 2/WP/HSMP - Read before post

Post by geriatrix » Thu Dec 17, 2015 8:44 pm

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