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Settlement: how to make a successful application!

02 June 2010

This article is not meant to be an exhaustive guidance on the subject of Indefinite Leave to Remain (ILR) in the UK, however it should provide you with a general overview of the preliminary work to be done in the preparation of a settlement application by identifying some of the most common mistakes, thus saving you money, time and hopefully tears.

The Immigration Rules have different "visa" categories which can be broadly separated into two main branches: leave to enter and remain under the Points Based Scheme, in particular theTier 1 and Tier 2 Schemes, and immigration categories based on an applicant's relationship to a British sponsor or someone present an settled in the UK, namely as his/her spouse, civil or unmarried partner or minor child.

There are also other categories which may lead to ILR , such as domestic worker, ancestry, work permit, sole representatives or a person exercising rights of access to a child resident in the UK. There are, finally, less well-known categories such discretionary leave, legacy cases, overseas government employees, however if you do happen to fall into one of these, please contact us for specific advice.

Under the Immigration Rules one might be able to apply for Indefinite Leave to Remain having spent five years in a "working" category leading to settlement or two years as the spouse/partner of a person present and settled in the UK or a British Citizen.

Please note that HSMP holders, whose applications were approved prior to 3 April 2006, are able to apply for settlement after 4 years of residence pursuant to the arrangements set in place following the judicial review brought by the HSMP Forum Ltd.

However, it is important to understand that not all immigration categories lead to settlement. Therefore, if you are in the UK as a student or a Tier 4 holder, or if you have been granted a Tier 5 visa (as a temporary workers or under the Youth Mobility) or a Post Study Worker visa or have entered the UK as a visitor, the time spent in these categories will not count towards the 5 years, but it may be aggregated towards the long residence.

There are some cardinal rules to keep in mind when submitting an ILR application. First, you will need to make sure to submit the correct form (SET(O), SET(M) or  SET(F), SET (DV) or EEA4  or EEA3 in case of permanent residence for EEA nationals ). The form must be up-to-date and be accompanied  by the correct fee. An application can be submitted by post, or using the same day service in person or through representatives. However, not all applications can be submitted on the same day (such as the Long residence) and some planning might be required due to limited number of premium slots available. At any rate, an application must be submitted prior to expiry of an applicant's leave to avoid becoming an over-stayer and losing the right of appeal against a refusal. Further, applications will need to be supported by the required and mandatory evidence. The UK Border Agency will only process applications which are lodged with a valid original passport unless there are compelling and exceptional circumstances.

In addition, all supporting documents will need to be original or certified copies. You will also need to pass the Life in the UK test and provide an accurate schedule of absences for the five years period as evidence that you have made the UK your "main home". Any criminal or civil conviction including a  traffic offence should be truthfully declared in the application form whilst any recourse to public funds may be treated as breach of your visa's conditions. Passport photos should not be more than 28 days old.

Please note that each category has its own specific requirements under the Immigration Rules and if unsure, we would recommend to seek legal advice.

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Migra & Co is a private immigration company, regulated by the Office of the Immigration Services Commissioner (OISC), reference number F200900038. This website is not a government website and as such, we are not linked or affiliated with the UK Visas and Immigration. We offer expert legal advice and flexible tailored solutions to both private and corporate clients to ensure that their immigration needs are met. If you wish to download or prepare a UK visa application form, you can do so free of charge by visiting the Official UKVI website.