Settlement Operational Policy Team
2nd Floor
India Buildings
Water Street
Liverpool
L2 OUR
Ramakrishna Vellaturi
c/o Whatdotheyknow.com / Tel0151 213 5462
EmailAmanda.Conneely
@homeoffice.gsi.gov.uk
Web
16thMarch 2011
Ref:
Dear R Vellaturi,
Thank you for your e-mail of 13 March, in which you ask for clarification of the start date for indefinite leave to remain for those entering the UK in the work permit employment categories. Although your request has been submitted as a request for information under the Freedom of Information Act 2000, it addresses issues more related to operational policy as the information you have requested is already reasonably accessible to you on UKBA website.
The information you require can be found at the following locations:
UKBA Website Immigration Rules
UKBA Website Immigration Directorate Instructions Settlement
UKBA Guidance: Indefinite Leave to Remain in Closed Categories
UKBA Guidance: Indefinite Leave to Remain - Calculating Continuous Period in the UK
It is important to differentiate between a Tier 2 Migrant under the Points Based System and or as a Work Permit Holder.
A Tier 2 Migrant comes under the Points Based System and is dealt with at Paragraph 245ZH of the Immigration Rules, where it states:
245ZH.To qualify for indefinite leave to remain as a Tier 2 Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements,indefinite leave to remain will be granted:
(b)The applicant must have spent a continuous period of 5 years Lawfully in the UK…
As well as the residence criteria, the applicant must meet all of the other requirements of the Rules, including “(c) the Sponsor that issued the Certificate of Sponsorship that led to the applicant's last grant of leave must certify in writing that he still requires the applicant foremployment and (d) the applicant must have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom”
The Immigration Directorate Instructions (IDI’s) for Tier 2 migrants in relation to calculation of the five year continuous period for settlement (Chapter6A, Section 2, subsection 5.2) states, “In some cases, applicants may have been granted 5 years continuous leave, but will not have spent 5 years continuously in the UK before their current leave expires. Caseworkers may count the period between entry clearance being granted and the date the applicant entered the UK towards the 5 years, provided this period was not longer than 3 months.”
A Work Permit Holder is dealt with under Paragraph 134 of the Immigration Rules, where it states:
134. Indefinite leave to remain may be granted on application to a person provided:
(i) He has spent a continuous period of 5 years lawfully in the UK…
As well as the residence criteria, the applicant must meet all of the other requirements of the Rules, including “he has met the requirements of paragraph 128(i) to (v) throughout his leave as a work permit holder" at para 134 (ii), that he is still required for the employment in question, as certified by his employer at para 134 (iii) and the knowledge of language and life requirement at 134(iv).
The Immigration Directorate Instructions (IDI’s) do not make a specific provision for the period of time between the issue of a Work Permit and the applicant’s arrival in the UK to be counted towards the 5 year period of continuous leave required to apply for ILR.
However, the general guidance to Work Permit holders re: Calculating the Continuous Period in the UK for ILR purposes provides a number of circumstances when discretion may be considered by a senior officer normally at HEO or SEO grade.
As you may be aware, applicants have the opportunity to request that entry clearance is post dated for a period of up to three months where they know that they will not be entering the UK immediately on the approval of their EC application. Where the delay is unforeseen and is only for a very short period, it is unlikely that this will be held against an individuals ILR application. This will obviously depend on the individual circumstances of the application, such as the timing, if they delayed their entry and are making their application early this will impact on their application as the gaps at the beginning of their leave would be combined.
The SET(O) application form currently advises applicants to apply no more than 28 days before they complete the qualifying period, as such in some cases where the delay is shorter than this period it may be appropriate to count this as part of this period providing that the applicant submits their application accordingly i.e. where an applicant's entry was delayed by 14 days they should not submit their application any earlier then 14 days before the completion of the five years).
I hope that this information meets your requirements.
Yours sincerely
Amanda Conneely
Settlement Operational Policy Team