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ILR AFTER 5 YEARS AS A SPOUSE VISA

After several years of living in the UK on a spouse visa with your UK based partner, it is likely that you will be looking forward to securing permanent settlement (also referred to as Indefinite Leave to Remain – ILR). While the spouse visa is extremely advantageous in that it enables spouses and partners to join their loved ones in the UK, also allowing them to work and study, there is always the issue of knowing that at some point you will need to extend your visa or take further action before it expires. As such, this can lead to ongoing uncertainty and an inability to truly feel secure and settled in the UK. Gaining ILR changes this because it means you are no longer subject to immigration control, you no longer need to apply for more visas, you do not need to pay the costly immigration healthcare surcharge, and you can remain in the UK as long as you wish. Holding ILR also means you can apply for British citizenship after a further 12 months. Here we will take a closer look at how to gain ILR after 5 years as a spouse visa holder.

As a spouse visa holder, you will be able to apply for ILR after 5 years in the UK. It is worth mentioning, however, that you cannot apply too early. The Home Office guidance suggests that the earliest you can apply for a spouse visa is 28 days before the 5 year time-frame. Applying earlier will risk refusal of your spouse visa application. It is also imperative that you apply before the expiry of your current spouse visa. Waiting until after your spouse visa expires may mean that you are classed as an over-stayer and will almost certainly lead to a refusal of your ILR application.

It is important to note that you can also apply for ILR through what is referred to as the 10-year long residence route. While it may seem illogical to apply for ILR on the basis of a longer duration of residence, unlike other routes to ILR, you can combine all of the time you have spent on other visas in the UK. As such, it can make sense to use the long residence route if you have already spent over 5 years on various other visa types (e.g. working holiday and work visas). If you are unsure which route to ILR to use, we recommend speaking to an immigration solicitor who will be able to advise you. Contact our immigration lawyers for a free telephone consultation on 00333 0124 253 or email at enquiries@pushlegalservices.co.uk

No, unlike many other routes to ILR, if you are applying as a spouse or partner visa holder, you will not be expected to meet any absence residence requirements. You will, however, need to exercise caution when it comes to how long you spend outside of the UK on your spouse visa. This is because one of the conditions of the spouse visa is that holders must intend to live together in the UK. The Home Office guidance states, “In applications for further limited leave to remain or for indefinite leave to remain in the UK as a partner, where there have been limited periods of time spent outside the UK, this must be for good reasons, and the reasons must be consistent with the intention to live together permanently in the UK. Good reasons could include time spent overseas in connection with the applicant’s or their partner’s work, holidays, training or study” 1. This means that you can spend time outside of the UK, and there are no strict timeframes for how long you can do so, but you must have “good reasons” for leaving the country.

As a spouse visa holder, you will need to meet several eligibility requirements to gain ILR in the UK, as follows:
  • Residence requirement – i.e. You must have been in the UK for enough time on a family visa as a partner or spouse to meet the requirement for ILR
    • Relationship requirements
    • Your partner must be settled in the UK – either as a British citizen or a person with indefinite leave to remain
  • Your current visa must be based on your relationship with your spouse or partner in the UK
  • You must have lived with your partner since you last renewed your visa
  • You must intend to continue living with your partner once you have ILR
  • Financial requirements for ILR
  • Accommodation requirement
  • Knowledge of life in the UK requirement
  • English language requirement
  • Residence requirement
    • As outlined above, you will need to prove to the Home office that you have lived in the UK for the required amount of time. For those holding a spouse visa, in most cases, this is 5 years. If applying under the 5-year route, you cannot include time spent in the UK on other visa types or with other partners. Also, as explained above, while there is no requirement to meet an absence requirement to gain ILR as a family member, you will need to satisfy the Home Office that you have always intended and will continue to intend to live with your partner in the UK. As such, if you have spent long periods outside of the UK, you may need to show that these were for “good reasons” and, therefore, compatible with your intention to live with your partner in the UK.

    When applying for ILR as a spouse/partner visa holder, you will need to show that factors that led to your visa being granted still apply. This means your partner must still be in the UK, they must be a British national or hold ILR, you must have lived with your partner since you last renewed your visa, and you must intend to continue living with your partner. The Home Office will want to be assured that your relationship is entirely genuine and it is not a “sham” for the purposes of gaining ILR in the UK.

    The financial requirements for ILR as a spouse visa holder are essentially the same as those you will have already met when applying for your visa. As such, if you are still in the same or better financial position, this requirement will be met. As a reminder, you will need to show evidence that you and your partner earn at least £18,600 per year, plus an additional amount of £3,800 for your first child and an additional £2,400 for each subsequent child. This is to prove you can meet the financial needs of your whole family. You can include income from various sources, including:
  • Income from employment before tax and National Insurance (check your P60 or payslips) – you can only use your own income if you earn it in the UK
  • Income you earn from self-employment or as a director of a limited company in the UK – check your Self Assessment tax return
  • Cash savings above £16,000
  • Money from a pension
  • Non-work income, for example, from property rentals or dividends
    • To calculate how savings can be used toward the financial requirement, you will need to divide any amount over £16,000 by 2.5 and deduct this from the threshold required; e.g. if you have £21,000 in savings, this reduces the amount you need to earn each year by £2,000.

    You will need to pass the “Life in the UK” test, which is designed to ensure you have a broad understanding of British history and culture. This will need to be completed at an approved test centre. There is plenty of information available online, and there are several books available that explain how to pass the test. If you are under 18 or over 65, or you have a physical or mental condition, you may be exempt from taking the life in the UK test.

    To gain ILR as a spouse visa holder, you will need to meet the English language requirements, either by:

    Passing a CEFR English qualification at B1, B2, C1 or C2 level

    Holding a degree taught or researched in English

    If you are under 18 or over 65, or you have a physical or mental condition, you may be exempt from meeting the English language requirement. You will also not need to meet this requirement if you are from either one of the following countries: Antigua and Barbuda, Australia, The Bahamas, Barbados, Belize, Canada, Dominica, Grenada, Guyana, Jamaica, Malta, New Zealand, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Trinidad and Tobago, or the USA.

    As when you applied for your spouse visa, you will need to show that you, your partner, and your family have adequate accommodation in the UK; this means:
  • You do not need public funds for your accommodation
  • Your family owns or has exclusive use of the accommodation
  • It is not overcrowded
  • It does not contravene public health regulations
  • Spouse visa to ILR required documents
    • When you apply for ILR as a spouse visa holder, you will be advised which documents to upload for submission to the Home Office. These may include the following:
  • Your current passport or other valid travel ID
  • Copies of the photo page and any visa or entry stamps in your previous passports
  • Your biometric residence permit
  • Details of any previous immigration applications you’ve made
  • Details of any criminal convictions
  • Your national insurance number
  • Your tuberculosis test results if you’re from a country where you have to take the test
  • A certified translation of any document that is not in English or Welsh
  • Evidence that you meet the financial requirement – e.g. Bank statements and wage slips
  • Evidence you meet the English language requirement – e.g. Your English language certificate or a certificate for a degree taught in English
  • Evidence you have passed the Life in the UK test
  • Evidence you continue to live with your partner (e.g. Utility bills, rental agreements, mortgage agreement in both names).
  • Details of your accommodation, including the number and use of rooms in the property.
    • Push Legal Services have a vast experience in helping family members in the UK to gain ILR and citizenship. Our team of award-winning immigration lawyers can:
  • Review your situation and goals for your future in the UK and recommend an overall strategy to meet your immigration needs.
  • Review your application and evidence prior to submission
  • Handle the application process entirely on your behalf
  • Explain how best to overcome any potential issues regarding your eligibility, ensuring you make a successful application. This may include a detailed covering letter to head off any possible challenges by the Home Office
  • If your application has been refused, we can explain the options available to you and deal with the Home Office on your behalf
  • Handle spouse/partner ILR appeals, Administrative Review and Judicial Reviews on your behalf, ensuring you have the very best chance of success.
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