Settlement in the United Kingdom
Jan 7, 2010
Indefinite leave to remain (ILR) or Settlement in the UK is a challenging area of the Immigration Rules even for the experienced practitioner. There are several aspects to be considered when making an application for settlement depending on the particular visa category and the applicant’s immigration history. However, under the current rules, settlement can be broadly granted either having spent 5 years in a “working” category or two years as the spouse, civil or unmarried partner of a British Citizen or person present and settled in the UK.
Please note that an applicant falling under the HSMP forum policy will be able to apply having spent only four years in the UK. Further, he/she will not need to pass the Life in the UK which is a mandatory requirement unless the applicant is below the age of 18 or above the age of 65. The long residence is again a category has its own specific criteria inclusive of 10 years of lawful residence in the UK.
Similarly, when applying as a non-EEA family member of an EEA national, settlement is referred to as “permanent residence” and one would need to apply pursuant to Regulation 15 of the Immigration(European Economic Area) Regulations 2006.
In this article we wish to focus on a fairly common but quite thorny issue often encountered in settlement applications: absences. The SET(M) application form used by applicants who are the spouse or partner of a British or with ILR, does not require to produce a schedule of travelling. However the SET(O) form used by people who have worked for 5 years in the UK requires a schedule of travelling under section 6.1. Applicants who have spent more than 3 months in any one years outside the UK might encounter problems such as a delay or even a refusal of their settlement application. According to the UKBA’s own internal instructions (IDIs) absences for holidays consistent with annual leave and paid maternity leave or business trips may be disregarded.
Discretion will be applied in cases where:
- there have been no absences abroad (apart from those described above) and authorized employment or business here has not been broken by any interruptions of more than 3 months or amounting to more than 6 months in all; or
- there have been longer absences abroad, provided the absences were for compelling grounds either of a compassionate nature or for reasons related to the applicant's employment or business in the United Kingdom. None of the absences abroad should be of more than 3 months, and they must not amount to more than 6 months in all.
If you have an enquiry relating to your immigration status or you ability to work in the UK, we can assist you in your application. Please contact us or book an appointment.
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