When does the clock restart for ILR?

Indefinite leave to remain (ILR), also known as settlement, gives an individual the right to live permanently in the UK (subject to limited restrictions), undertake employment of any type in the UK, set up in business and access public funds, if eligible. A person holding ILR may eventually be eligible to apply for British citizenship.

To apply for ILR, applicants must, along with the other mandatory criteria, meet the qualifying period.

What is the qualifying period?

The qualifying period is the amount of time an applicant must have lawfully been in the UK, in the relevant visa category, before they are eligible to apply for ILR.

For example, the qualifying period for Tier 2 (General)/Skilled Worker visa holders and their family members is five years. For those in the Innovator or Global Talent (Exceptional Talent) categories, the qualifying period is three years.

Not all immigration categories in the UK lead to settlement. For example, usually time spent as a student does not count. If the qualifying period for ILR is broken, this can cause the clock to “restart.”

What does a clock restart mean for ILR?

Quite simply, the clock ‘restarting’ for ILR means that any time already spent in the UK will not count towards the qualifying period. The applicant will therefore need to spend a longer period of time in the UK before they become eligible to settle.

What can cause the clock to restart for ILR?

Below are some examples of circumstances which may cause the clock to restart.

Relationship breakdowns

When a UK visa is granted to a dependent family member, that visa is inextricably linked to the ‘main applicant. If the family tie ceases to exist, the dependent family member’s right to live in the UK is directly impacted.

If there is a relationship breakdown between the main visa holder and a spouse or partner, this must be reported to the Home Office, who will curtail the spouse or partner’s leave. The spouse or partner must then decide to leave the UK within a specified period or switch immigration categories. It is at this point that the clock for ILR will restart.

Scenario:

A is the spouse of B, a Skilled Worker migrant. Their relationship has broken down after two years in the UK together. As a result, A obtains a Skilled Worker visa in their own right. The two years spent in the UK as B’s dependent spouse will not count, and A must complete a further five years in the UK as a Skilled Worker before they will be eligible for ILR.

Switching immigration categories

Like the above scenario, changing immigration categories can cause the clock to restart. If a Skilled Worker migrant changes employer but remains in the Skilled Worker category, the 5-year qualifying period is maintained. However, if a Skilled Worker migrant changes to a dependent visa, the clock will restart.

Some categories, such as the Global Talent/Tier 1 (Exceptional Talent) category, permit using time spent in a combination of categories to meet the qualifying period.

Scenario:

C entered the UK as a Skilled Worker migrant and spent two years in this category before switching to the Global Talent category and spending an additional year in the UK. C can combine the two years in the Skilled Worker category and the one year in the Global Talent category to meet the qualifying period.

Gaps between employment

As above, it is often the case that applicants must remain in their original qualifying visa category to maintain the qualifying period. This can be across multiple jobs and/or employers. If a migrant ceases to work for their sponsor, it will usually be appropriate for the Home Office to curtail the migrant’s leave to 60 days, allowing the migrant to file a new application or to make arrangements to leave the UK.

Provided that a new application is filed within the period specified in the curtailment letter, any gap between employment will not affect that individual’s ability to settle in the UK.

Scenario:

D entered the UK as a Tier 2 (General) migrant. After three years, D was made redundant by their current sponsor, their Certificate of Sponsorship was cancelled, and they were issued with a curtailment letter. D filed a Skilled Worker application within the period specified in the curtailment letter. The qualifying period is therefore maintained despite the change in employer/gap between employment. D must complete an additional two years in the UK as a Skilled Worker before they will be eligible to apply for ILR.

Absences from the UK

Unless an exemption applies, absences from the UK of more than 180 days in any 12-month period may essentially restart the clock for ILR. Excessive absences may therefore require an applicant to remain in the UK for a longer period of time, until the absence requirement is met.

Need to know more?

For further information on ILR requirements, or if you are concerned that a change in your circumstances may affect your ability to apply for ILR and need assistance, please contact Senior Associate Louisa Blundell at [email protected].

This blog was published on 25 January 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.