With major reforms to the UK settlement system expected later this year potentially as soon as April many migrants are understandably exploring whether they can apply for indefinite leave to remain (ILR), also known as settlement, earlier than planned.
Early applications can sometimes be possible, but settlement differs from limited leave applications in an important way: most ILR routes require applicants to complete a minimum qualifying residence period before they can meet the eligibility requirements.
This article considers when early settlement applications may be possible, the legal framework behind them and the risks involved.
What Does an “Early” ILR Application Mean?
An early ILR application refers to submitting a settlement application before completing the required qualifying period for your immigration route. This qualifying period is usually:
- three years
- five years
- ten years
Some routes allow immediate settlement, such as applications made as a bereaved partner or as a victim of domestic abuse.
In most categories, the qualifying period is a strict requirement. However, the rules allow limited flexibility in how that period is calculated.
How the Qualifying Period Is Calculated
The main rules governing settlement residence calculations are found in Appendix Continuous Residence.
The relevant provision explains that the qualifying period may be counted back from whichever date is most favourable to the applicant. These include:
- the date of application
- any date up to 28 days after the application date
- the date the decision is made
For most applicants, this creates three possible ways of demonstrating that the qualifying period requirement has been met.
The Practical Effect of the 28-Day Window
In practice, many applicants apply within the final 28 days of their qualifying period.
This is because, even if the qualifying period has not fully completed on the day the application is submitted, it will usually have completed by the time a decision is issued.
Applying in this final month is common and generally low risk, provided all other settlement requirements are satisfied.
Applying Earlier Than 28 Days Before Completion
It may be possible to apply more than 28 days early, but this is significantly more risky.
In these cases, the applicant would need to ensure that the entire qualifying period is completed before the Home Office makes a decision.
It is important to understand that the “28-day rule” and the “date of decision” approach are separate provisions. They cannot be combined to extend flexibility beyond what the rules allow.
For anything beyond the standard 28-day window, careful timing is essential.
Delaying a Decision Where Leave Is Expiring
In some situations, applicants may be approaching the end of their current permission but are still months away from completing the qualifying period.
Where extending leave is not an option, some applicants rely on the fact that settlement applications are often decided several months after biometrics are enrolled. Delaying biometrics through the standard UKVCAS process may slow down the timeline.
However, this is never guaranteed and should be approached with caution.
Placeholder Applications and Variation
Where the gap between visa expiry and settlement eligibility is longer, one possible strategy is lodging a paid “placeholder” application to avoid overstaying, then later varying that application into a settlement application.
If done transparently and properly and where the applicant is honest about their circumstances, the Home Office does not currently object to this practice.
That said, using inappropriate routes purely to gain time particularly fee waiver applications where the applicant does not qualify is highly problematic and should be avoided.
Asylum and Humanitarian Protection Routes
For individuals with refugee status or humanitarian protection, the guidance encourages applying when leave is close to expiry.
Where an application is submitted within three months of completing the five-year period, the Home Office may not refuse it solely on timing, although it may delay making a decision until the qualifying period is met.
Final Thoughts
In many situations, it is possible to apply for ILR shortly before completing the qualifying period, particularly within the standard 28-day window.
More complex early applications especially those relying on decision timing or placeholder strategies require careful planning, as errors in timing can lead to refusal.
For those hoping to settle before anticipated reforms later this year, much will depend on:
- when the new rules take effect
- whether transitional provisions apply
- whether your qualifying period will be completed in time
The statement of changes, expected potentially as early as March, will be crucial in determining whether an early settlement application can offer protection under the current rules.
With over 20 years of experience and a commitment to excellence, Morgan Smith Immigration is your trusted partner for all your immigration needs. Contact us today to learn more about how we can assist you with UK Visa Applications. For any enquiries or assistance, call us at 0203 959 3335 or email [email protected].
