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ILR Q and A brief for staff final
Q and A brief for staff

1. What are the main changes to obtaining settlement in the UK and whom will they affect?

The main change is that the qualifying period for people in work-related immigration categories, that is the amount of time that has to be spent continuously in the UK, has increased from 4 years to 5.

In order to qualify for settlement after 4 years, applicants were required to show that they would remain in employment or viable self-supporting activity for the foreseeable future. We are simply asking this state of affairs to continue and to be marked after 5 years instead of 4.

The only people affected are those in employment related categories of migration. This includes those in: -

• work permit employment;
• highly skilled migrants;
• those setting up in business or self employment;
• Investors;
• Sole Representatives;
• Innovators;
• UK Ancestry applicants;
• anyone else whose basis of stay is primarily employment related (for example Ministers of Religion, and Domestic Workers in Private Households; and,
• Retired Persons of Independent Means.

This list is not exhaustive

2. Do these applicants still have to meet other requirements?

Yes, they must still meet the requirements of the relevant category of the Immigration Rules.

If in employment, they still have to show that there is a need for their skills and their employer intends to continue employing them for the foreseeable future. They will have to show that they are able to support themselves and any dependants without recourse to public funds.

Those who are not in salaried employment, e.g. Investors, those in business or self-employment categories, still have to show that they meet the requirements of the category and that they can support themselves and any dependants without recourse to public funds.

3. What is the purpose of these changes?

This brings us in line with the European norm for these purposes and also helps to ensure that settlement is a final stage in an on-going process of building up an attachment to the UK.

4. When you say that this change will bring us in line with the European norm, what exactly do you mean?

The European pattern is for people to be granted residence in order to pursue employment and for this to become permanent residence after 5 years. This will become confirmed as a right for EU nationals under the Free Movement of Persons Directive for EEA nationals exercising treaty rights after 30 April 2006. We have to respond to this and the Government does not feel that there are any benefits to be had by the UK maintaining a 4-year provision for non-EEA nationals.

5. When will the changes take place?

The changes took effect from 3 April this year. They were announced as far back as February 2005 in the ‘Five Year Strategy for Asylum and Immigration’ where we said that ‘skilled workers will need to have been present, in employment and contributing to the Exchequer for 5 years (rather than 4) before becoming entitled to apply for settlement’.

6. What will happen to people who have already made an application for settlement before 3 April?

Applications for settlement can be made up to 28 days in advance of a person completing the required qualifying period. This means that, where an application for settlement was made before 3 April and the applicant was within 28 days of completing 4 years on the date the application was made, the qualifying period will be considered to have been met.

However, applications for settlement submitted before 3 April, where the applicant was not within 28 days of completing 4 years on the date the application was made, will fall for refusal on the grounds that the 4-year qualifying period for settlement has not been met.

7. What will happen to people who apply for settlement on or immediately after 3 April, but who have only completed 4 years in the UK?

We have transitional arrangements for those who apply for settlement on or immediately after 3 April having only completed 4 years in the UK. Those applicants will have the opportunity to vary their application from a settlement application to a limited leave to remain application without losing their original application fee. These arrangements will operate from 3 April until the introduction of the revised application forms from June 2006 incorporating details of these changes.

8. Will this lead to other changes in the way that applications are dealt with?

Some of the associated patterns of grants of leave will change but these are not substantial changes. Thus, for most people a 5-year qualifying period will result from a pattern of leave being granted of an initial 2 years followed by a further 3 years. This will be of benefit to those setting up a new business or entering as, Innovators and others in a self-employed capacity where a 2-year initial leave period for establishing oneself is more realistic.

Work permit holders are normally granted leave in line with their work permit or letter of permission. For all others those who have already been granted an initial period of leave of 12 months, and who subsequently apply for an extension, will - in most cases - be issued a further period of 4 years leave. Such approvals will be made exceptionally (ie. for periods in excess of the maximum 3 years stipulated in the Immigration Rules). The aim in adopting this approach is for applicants to be brought up to the new 5-year qualifying period, but still on the basis of two applications only.

Unavoidably, those who have already been granted an initial period of 12 months, followed by a 3-year extension will, under the revised Immigration Rules, still be required to make a further extension of leave application before they are able to complete the new, 5-year qualifying period for settlement. However, the approach adopted in light of the 3 April Immigration Rule changes is aimed at enabling the vast majority of those seeking to obtain indefinite leave to remain within an employment/business category, to do so after having made only two applications for leave to enter/remain in the UK.

The UK ancestry provisions provision will still allow leave to be granted in one single period up to the settlement-qualifying period.

Work permit holders will also need to ensure their employer applies for a further work permit for any further period of leave required.

Domestic Workers and those admitted under the Lawyers Concession will also have to make an extra application, because they currently receive a maximum of 12 months leave at a time.

9. How many people in employment related categories get settlement each year?

The Control of Immigration Statistics published every year (Cm 6690) state that in 2004 there were 16,205 grants of settlement following completion of four years in work permit employment. When those in employment for which a work permit is not required are added this amounts to 22,500.

A further breakdown of the settlement figures is available in that publication.

10. Will Work Permit holders need their employer to apply for another work permit?

If a work permit holder’s current leave to remain in the UK extends sufficiently to cover the new qualifying period for Indefinite Leave to Remain, they will not need their employer to apply for another work permit approval. Rather, they will need to submit an ILR application, using form SET(O), before their existing leave expires, but no earlier than 28 days before they have completed the full 5 year qualifying period.

If a work permit holder’s current leave to remain in the UK does not extend sufficiently to cover the new requisite qualifying period for ILR their employer will need to submit a work permit extension application on their behalf. The work permit holder will then need to apply for further leave to remain, in line with the fresh work permit permission granted. The leave application should normally be made after the work permit permission has been obtained, but before the applicant’s existing leave has expired.

11. Will my employer have to pay for the new work permit? If so, why.

Yes. The costs of running the current in-country operations, associated with decisions taken in the UK including work permits, are recovered in fees and charges. The Government remains committed to a sustainable system, that is as far as possible self financing without reliance on the public purse, and further, that is not disproportionate for the migrants or employers who benefit from migration. The fees we charge recover our costs only, and are a small proportion of overall costs such as cost of living and cost of study that migrants to the UK have to pay.

12. Will the changes affect ECAA cases?

Bulgarian and Romanian nationals applying under Paragraph 222 of the Immigration Rules for indefinite leave to remain under the Association Agreements with those countries will be subject to this change.

The issue in Turkish ECAA cases often centres on whether the current or the 1973 rules should apply. This change has no bearing on that issue. Whenever a case is considered under the 2006 rules, that case will be subject to this change, because the current rules relating to businesspeople apply and the change has effect for those. For cases considered under the 1973 rules, this change will have no bearing on how we consider those cases, because it was not present in those rules. For details on when to apply the 1973 and 2006 rules, please see the guidance for caseworkers, on the IND website.