August 13, 2019

Indefinite Leave to Remain ILR: A Complete Guide

What is ILR?

Indefinite Leave to Remain (ILR) is an immigration status which allows the person who holds it to live and work in the UK for an unlimited time, without any need to apply for a visa extension.

If you are granted Indefinite Leave to Remain, you are able to leave and re-enter the UK without any immigration restrictions. Unlike British citizenship, which is granted for life, an individual’s ILR can lapse in certain circumstances, for example if they leave the UK for a period of two years or more (see Can my indefinite leave to enter or remain be taken away? below).

Unlike Permanent Residence, Indefinite Leave to Remain is a status given to non-EEA nationals. If you have ILR and your home is the UK, you are regarded as being settled in the UK.

How do I prove that I have Indefinite Leave to Remain?

There are various ways in which Indefinite Leave to Remain can be documented:

a Biometric Residence Permit (BRP). If you are settled in the UK your BRP will display either ‘Indefinite Leave to Remain’, ‘Indefinite Leave to Enter’, or ‘No Time Limit’;
a No Time Limit (NTL) stamp in your passport (expired or otherwise), stating ‘There is at present no time limit on the holder’s stay in the United Kingdom’;
an Indefinite Leave to Enter (ILE) stamp in your passport (expired or otherwise), stating ‘Given indefinite leave to enter the United Kingdom’;
an ILR stamp in your passport (expired or otherwise), stating ‘given leave to remain in the UK for an indefinite period;
an ILR endorsement in your passport (expired or otherwise);
a letter from the Home Office confirming your right to remain indefinitely in the UK.
What if I do not have a document to prove that I have ILR?

If you have Indefinite Leave to Remain, but you do not have a document to prove it, you can apply for confirmation of this status in the form of a Biometric Residence Permit (BRP). You can do this through an administrative process called a no time limit (NTL) application.

You are also able to make an NTL application if you previously held a passport which contained proof of your ILR but this has been lost or stolen, or has expired. If this is the case, you may have to provide extra information such as a crime reference number or a police report, in order to prove to the Home Office that you are the same person who has previously been granted ILR.

If you make an application for a permit showing your Indefinite Leave to Remain and you do not have any documentary evidence of your ILR, the Home Office will check all their available systems and files for any records that provide evidence that you have been granted Indefinite Leave to Remain.

It is not mandatory for you to apply for a residence permit, or indeed to have any documentary evidence of your ILR. However, there are benefits which make it more convenient for you to do so. A BRP has enhanced security features which make it less likely to be used fraudulently than old-style passport stamps or endorsements. It can be used when you travel to and from the UK to facilitate your travel, as it evidences your right to enter and remain in the UK.

Also, it proves to any employer that you have the right to work in the UK. Employers are required under Section 25 of the Immigration Act 2016 to check that their employees have the right to work. If you do not have any documents to prove that you have ILR, your employer will have to contact the Home Office’s Employer Checking Service to verify that you have the right to work. If you have an NTL BRP, you can demonstrate your entitlement to work more easily by simply showing it to your employer.

Do I need permission to work in the UK if I have ILR?

Once your application for Indefinite Leave to Remain is approved, you do not need permission from a Government Department to take up new employment, or to change your employment. Moreover, any restrictions that were previously placed on your hours or type of employment are lifted.

You may engage in any kind of business or profession, self-employed or otherwise (as long as you comply with any general or statutory regulations for that business or professional activity).

Can I live or work in the UK if I have Indefinite Leave to Remain?

Once you have Indefinite Leave to Remain, there are no longer any restrictions on your living and working in the United Kingdom.

However, if you are thinking of going to live or work in the Isle of Man or one of the Channel islands, you should first consult the immigration authorities of the Island concerned.

Can I study in the UK if I have ILR?

Once you have ILR, you are free to study in the UK. You will also be eligible to pay home tuition fees (i.e. the same rate as British, EU, EEA and Swiss citizens) at higher education institutions, and to apply for student finance, provided that you have been ordinarily resident in the UK for at least 3 years before the first day of the academic year of your course. (‘Ordinarily resident’ means that you are habitually and normally resident in the UK, and any absences have been of a temporary or occasional nature).

Can I vote in the UK if I have Indefinite Leave to Remain?

If you have ILR, you can only vote in national and local elections and referenda in the UK if you are a qualifying Commonwealth citizen. The definition of a Commonwealth citizen can be found on the Electoral Commission’s website.

Can I access healthcare if I have ILR?

Generally, healthcare will be available to you if you have ILR and you are ordinarily resident (you are habitually and normally resident in the UK, and any absences have been of a temporary or occasional nature).

For more information, see the government’s guidance on healthcare.

Can I access public funds if I have Indefinite Leave to Remain?

If you have ILR, you have access to public funds. You are able to claim job seekers’ allowances and other benefits.

Do I still need to register with the police once I have ILR?

If you were previously required to report any changes in your circumstances to the police, you no longer need to do so once you are granted Indefinite Leave to Remain. Your police registration certificate will be stamped to show this.

What happens if I leave the UK after I have been granted ILR?

If you leave the UK following a grant of Indefinite Leave to Remain, you will normally be readmitted for settlement as a returning resident, provided that:

you did not receive assistance from public funds towards the cost of leaving the UK;
you had indefinite leave to enter or indefinite leave to remain here when you last left;
you have not been away for longer than two years; and
you are returning for the purpose of settlement.
In order to be considered as settled in the UK, you will have to be able to show that you are habitually and normally resident in the UK, and that any absences have been of a temporary or occasional nature.

If your absence from the UK is for longer than two years but you can still demonstrate that you had indefinite leave to enter or indefinite leave to remain here when you last left, and you are returning for the purpose of settlement, you may still qualify for admission as a returning resident if, for example, you have maintained strong connections with the UK.

You will not be re-admitted as a returning resident if you are resident overseas and only return to the UK for short periods.

You do not require a visa to return to the UK provided you are returning for settlement after an absence of two years or less. However, if you are returning for settlement to the UK after an absence of over 2 years, you are advised to apply or an entry clearance at the nearest British Diplomatic Post in the country in which you are living. This should then facilitate your re-admission to the UK.

What if I have a child born in the UK after I have been granted ILR?

If you have a child who is not a British citizen, but who was born in the UK on or after 01 January 1983, they may be able to register as a British citizen once you have Indefinite Leave to Remain.

Any child born to you in the UK while you remain settled here may be a British citizen automatically at birth.

Can family members join me in the UK once I have been granted ILR?

Family members who are not British citizens may be able to join you in the UK. There are different rules depending on what type of family member they are (partner/spouse/fiancé(e), child, parent, or adult coming to be cared for by a relative). The different rules for applying for family visas can be found here.

Can my Indefinite Leave to Remain be taken away?

It is possible to lose ILR in certain circumstances.

If you commit a serious crime and you are deported from the UK, your ILR will be invalidated.

Your ILR will be revoked if:

you are liable to deportation but cannot be removed for legal reasons, such as the UK’s obligations under the Refugee Convention or the European Convention on Human Rights (ECHR);
you were granted leave as a refugee and cease to be a refugee.
Under paragraph 20 of the Immigration Rules, your ILR will lapse if you stay outside the UK for a continuous period of more than two years, as you will be considered to be no longer present and settled in the UK.

If you wish to re-enter the UK after two years, you will have to apply for a Returning Resident visa (see What happens if I leave the UK? above).

July 22, 2019

Detention system continues to discriminate against migrants with mental health problems

The immigration detention system continues to discriminate against migrants with mental health conditions, in breach of the Equality Act 2010, the Court of Appeal has held. The case is R (ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1239.

The appeal concerned two men, known as ASK and MDA, who suffered from mental illness to the point where they lacked the legal capacity to challenge their detention. The court found that the Home Office had failed to adapt its detention system to account for this situation.

ASK, an overstayer from Pakistan, was detained from January to September 2013 when he was admitted to a secure psychiatric unit. MDA, who arrived in the UK from Somalia aged 14, had been sectioned several times under the Mental Health Act 1983 but was in immigration detention from November 2015 to February 2017 (when he was sectioned again).

The government deployed Sir James Eadie QC in the face of multiple grounds of appeal. Only one succeeded, the Court of Appeal holding that the Secretary of State had discriminated against the appellants “by failing to make reasonable adjustments to the decision-making processes in breach of section 20 and 29 of the EA 2010”.

This followed from last year’s decision in R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57. The VC case also resulted in a finding of unlawful discrimination towards detained migrants with mental illness, but little has changed since. The instructing solicitors in ASK and MDA said in a joint statement that “despite 17 months passing since that judgment, no sufficient or adequate steps have been taken by the Secretary of State for the Home Department to comply with his duty to eliminate discrimination towards migrants with mental health conditions”.

Lord Justice Hickinbottom wrote:

… ASK’s case is not materially different from the cases of VC or MDA. Because of his illness, ASK suffered from a disability. It seems likely that, from time-to-time, he lacked the capacity properly to engage with the detention authorities in relation to important decisions that related to him, e.g. with regard to his continuing detention, segregation and non-transfer to hospital. In those respects, he was treated differently from those detainees who were not disabled. In breach of the PSED [Public Sector Equality Duty], the Secretary of State failed to have due regard to eliminate discrimination. Further, the duty on the Secretary of State to make reasonable adjustments having arisen, no adjustments were made and obvious adjustments (e.g. in the form of IMCA-type representation) could have been made. The burden was therefore on the Secretary of State to show he had complied with the duty to make such adjustments; and he adduced no evidence that he had even considered such adjustments and certainly no evidence that he had complied with the duty.

The lawyers involved, Bhatt Murphy and Deighton Pierce Glynn, have called for the Home Office to take “immediate steps to provide interim safeguarding arrangements to protect the right of access to justice for detained migrants who may lack capacity”.

July 21, 2019

Court of Appeal takes a strict stance on adducing new evidence to the Upper Tribunal

Kabir v The Secretary of State for the Home Department [2019] EWCA Civ 1162 (09 July 2019)

On the topic of fresh evidence (in the context of deception, false documents, bank statements) the Court of Appeal has held that the Upper Tribunal was right to refuse to admit fresh evidence in an immigration appeal where a Tier 1 (Entrepreneur) from Bangladesh had failed to follow the procedure in rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Underhill, McCombe and Haddon-Cave LJJ judged that the Upper Tribunal had been entitled to take into account the principle in Ladd v Marshall [1954] EWCA Civ 1 that the new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. Delivering the main judgment, McCombe LJ held that the present case was not one where the new material inevitably resolved the factual issue in the favour of the appellant. Furthermore, it was not a case of clear misapprehension of established and relevant fact. McCombe LJ explained that the principal issue before the court was whether the Upper Tribunal was wrong to refuse to admit on the appeal to it certain fresh evidence which had not been before the First-tier Tribunal. The underlying issue in the case before both tiers of the tribunal related to the genuineness of certain banking documents submitted by Mr Md. Iqbal Kabir with his application for leave to remain. Mr Kabir arrived in the UK as a student in 2009 and extended his stay on that basis until the end of 2012.

Prior to the expiry of his leave he applied for further leave remain in the UK as a Tier 1 (Entrepreneur) and used a letter and bank statement, appearing to have been issued by Brac Bank Limited concerning an account in the name of AKM Monirul Hoque, with a closing balance of 3,05,73,219.10, claimed to be greater than the £200,000 required for an applicant to be granted leave. Accompanying this was a supporting statement from the account holder that he was willing to make this sum available equally to Mr Kabir and his intending business partner, Mr Mohammed Sayed, for the purposes of their planned restaurant business. It was only after two years in February 2015 that the Home Office began inquiries regarding the genuineness of the documents. As a result the Associate Product Manager of Brac Bank responded that the certificates and statements were not issued by the bank. Thus, the decision-maker refused the application under paragraph 322(1A) of the Immigration Rules because false documents had been submitted. Mr Sayed also received a decision along these lines.

First-tier Tribunal

In their appeal to the First-tier Tribunal, Mr Kabir and Mr Sayed provided a letter from a branch manager that the documents submitted with the application were authentic. The letter was dated 11 May 2016. The First-tier Tribunal adjourned the appeal to permit the Home Office to verify the new letter. That process resulted in a Document Verification Report (“DVR”) from the High Commission in Dhaka stating that the earlier letter was not genuine.

The Presenting Officers Unit sent the DVR to Mr Kabir’s former solicitors, but the person concerned failed to take timely notice of it. Six weeks later, when the scheduled for hearing again, it came to the attention of the solicitors who asked for an adjournment to obtain further evidence. But the request was refused and the First-tier Tribunal held that the decision-maker had been justified in refusing the application for further leave to remain. The judge decided that the decision-maker had been justified in refusing the application for leave to remain in the UK, relying upon paragraph 322(1A) of the rules. The judge also rejected the two appellants’ claims based upon article 8 of the ECHR but there was no finding that the assertion in the refusal letter about the use of deception was correct.

Upper Tribunal

Mr Kabir appealed to the Upper Tribunal on the basis that the First-tier Tribunal had been wrong to refuse the adjournment to allow him to respond to the DVR. The Upper Tribunal decided that there was no basis for criticising the First-tier Tribunal refusal to adjourn. Mr Kabir’s application for permission to appeal to the Upper Tribunal, which was granted by the First-tier Tribunal, included new evidence, said to have been obtained from the bank, namely (a) a letter dated 13 November 2016 from the manager of the Natun Bazar branch of the Bank, i.e. the same branch from which the letter of 11 May 2016 and the original documents from 2012 were said to have originated, (b) the manager’s business card, (c) a further declaration from Mr Hoque, the account holder, and (d) documentation tracking the delivery of the documents from Bangladesh.

The Upper Tribunal dismissed Mr Kabir’s appeal. It held that there was no basis for criticising the First-tier Tribunal’s refusal to adjourn. It also refused to admit the new evidence, partly on the basis that notice of the desire to adduce the new evidence had not been given in proper form and the judge opined:

9. Admitting this evidence could lead to the hearing descending into a non-fathomable realm of allegation and rebuttal. The fact is that the Secretary of State, by officers of the High Commission, tried to examine the evidence, took a view, disclosed it to the appellants and the appellants did not take advantage of the opportunity to get their evidence together before the First-tier Tribunal.

The Upper Tribunal refused permission to appeal. Aggrieved, Mr Kabir argued that he served proper notice to include new evidence with the Upper Tribunal and while granting permission Longmore LJ took the view that “it is arguable that, once the further evidence sought to be adduced in response to the DVR was before the Upper Tribunal (even if only informally), it ought to have been considered rather than being dismissed because it could lead to the hearing descending into a non-fathomable realm of allegation and rebuttal.” He opined that on the face of it, the letter dated 13 November 2016 from the manager of the bank’s Natun Bazar branch “carries some conviction.”

The Court of Appeal

Dismissing the appeal Underhill, McCombe and Haddon-Cave LJJ decided that the view of the Upper Tribunal had been correct and it had been entitled to take into account the principle in Ladd v Marshall.

In addition to the decision of the Upper Tribunal, the Home Office submitted that (a) the fresh evidence did not meet the requirements for being admitted on an appeal, either pursuant to the principles in Ladd v Marshall or those appearing in E & R [2004] EWCA Civ 49, (b) the fresh evidence application did not comply with the procedure required by Rule 15(2A) of the 2008 Rules, and (c) even if the new evidence relied upon had been admitted, on the findings made by the First-tier Tribunal, the judge would nevertheless have dismissed the appeal.

(i) Procedure for adducing new evidence

McCombe LJ said that Mr Kabir had failed to comply with the correct procedure to adduce new evidence and this was very obvious from the terms of rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which requires that a party wishing to adduce new evidence in an appeal to the Upper Tribunal “must send or deliver a notice to the [UT] and any other party” setting out the nature of the evidence and explaining why it was not submitted to the First-tier Tribunal. The proper practice is to use the standard application notice (Form T484) for this purpose and in the present case the solicitors in question failed to issue any such application notice and simply stated the desire to adduce the new evidence in the grounds of appeal by appending copies of the new documents to those grounds. The use of form T484 entails a £255 fee.

(ii) Refusal of adjournment

McCombe LJ found it “impossible” criticise the First-tier Tribunal’s decision to refuse the request for a second adjournment on the material then available to it. There had been one adjournment already and Mr Kabir’s solicitors squandered the opportunity to seek out further evidence in the period that was available to them before the date of the appeal hearing. The court opined that:

32. … It was well within the proper exercise of the First-tier Tribunal’s wide discretion to grant or refuse adjournments to refuse the application in this case. There was no error of law in that decision.

(iii) Refusal to admit fresh evidence

McCombe LJ proceeded to explain that the Upper Tribunal also enjoyed a wide discretion on this issue. The present case was not the type of case where the fresh material inevitably resolved the factual issue in Mr Kabir’s favour.

The new evidence presented similar factual questions to the initial evidence and it was neither a case of clear misapprehension of established and relevant fact nor was it in keeping with ML (Nigeria) [2013] EWCA Civ 844 where it was held a material error of fact, material to a tribunal’s conclusion, will also constitute an error of law (ML involved a series of “egregious errors”). McCombe LJ therefore held that the Upper Tribunal had been entitled to refuse the application in view of the failure to follow the correct procedure and to take into account the Ladd v Marshall principle that this new evidence could, with reasonable diligence, have been made available to the First-tier Tribunal on the initial appeal. He said:

33. … I discern no error of law, therefore, on the Upper Tribunal’s part in the decision that the judge made in declining to admit the fresh evidence.

(iv) Deception

The court also noted that the Home Office did not dispute that neither tier of the tribunal had endorsed the decision-maker’s assertion that Mr Kabir had behaved deceptively when making his application for leave to remain.

It was open to him on any future entry clearance application to contest any reliance upon alleged deception in answer to a refusal of leave to enter, and it would be incumbent upon the decision-maker fairly to assess afresh the evidence presented on the issue.

Comment

The result in this case is a reminder that a failure to follow the correct procedure is fatal for applicants wishing to adduce further evidence in the Upper Tribunal. Equally, the fact that Mr Kabir’s solicitors sought a second adjournment on the day of hearing did not help him either. Mr Kabir was lengthily left in limbo for a period of 6.5 years (2013-2019) while his case was ongoing and the fact that the Home Office dithered on his application for two years prior to taking any action in his case is a testament to its inefficiency and continuing failures in upholding service standards for charged immigration applications such as those in the former Tier 1 (Entrepreneur) category. But of course the failure to properly follow the procedural rules ultimately appears to have been Mr Kabir’s undoing in this appeal and those hoping to avert a similar fate should take on board the decision of the Court of Appeal in Mr Kabir’s case, which is very strict in its nature. We can only hope that the same degree of strictness will be applied to the Home Office if it is the appellant in the Upper Tribunal seeking to adduce new evidence.

Notably, Statement of Changes HC 1919 overhauled the points based system and the Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur) categories have been replaced by the new Innovator and Start-up categories. But with the UK economy in jitters because of the prospects of a no-deal Brexit, as shown by the Office of Budget Responsibility’s forecast that the UK economy would contract by two per cent in the event of a no-deal Brexit, it is very difficult to see why someone would wish to come to the UK and take risks with their money in very testing economic times. With high levels of political volatility and economic unpredictability, and given that the Home Office loves to short-change migrants their full immigration rights even after they have satisfied the relevant requirements, it is hard to see how someone such as Mr Kabir would wish to waste further energy, time and money by applying for entry clearance to go round the whirligig one more time.

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