The UKBA has recently clarified their policy in relation to visa holders who cannot meet the qualifying period for Indefinite Leave to Remain before their visa expires in the UK.

In order to qualify for Indefinite Leave to Remain as a work permit holder, applicants must have completed the relevant qualifying period (five years) in the UK. It is established policy that applicants can apply for ILR up to 28 days before the qualifying period has been completed. The qualifying period begins on the day that the applicant enters the UK (or in the case of visas granted inside the UK, the date of issue), so providing an applicant enters the UK with their work permit entry clearance visa less than 28 days after the visa was issued, they should qualify for ILR before their 5-year visa expires.

Holders of 5-year work permit visas who entered the UK more than 28 days after the issue date of their visa have previously been told that they would need to extend their visa in order to qualify for ILR.

The UKBA has now confirmed, via an update to their internal guidance that these applicants will be able to use the time between the date of issue of their visa and their entry into the UK (up to a maximum of three months) to contribute towards the qualifying period of five years.

For example, an individual was granted a 5-year work permit visa on the 1st June 2006, but first entered the UK on 15th July 2006. Before this policy was altered, the individual would have completed their qualifying period on 15th July 2011, and been able to apply 28 days early, on 17th June. This date is still after the expiry of their visa, so the individual would have needed to extend their visa before applying for ILR.

Under the new guidance, the same individual would be able to apply up to 28 days before their visa expires, i.e. on or after 4th May 2011.

It should be noted that this new policy will not allow individuals to apply for ILR if they have been granted visas totalling less than 5 years. In addition, this policy will not allow applicants to apply early if they have a visa that lasts until the completion of the qualifying period, i.e. if they have been granted a combination of visas totalling more than 5 years.

As it stands, this policy also appears to apply to those individuals holding Ancestry and spouse/ unmarried partner visas.

If you have any questions about how this new policy might affect you, or if you would like to take advantage of our free initial assessment, please do not hesitate to contact us.