A Guide on Moving From Work Visa to Indefinite Leave to Remain
Going from being on a Tier 2 visa to ILR is a big step and, for many, it spells freedom from bureaucracy of Immigration control. It is not just you as an individual employer who benefits as your employer won't need to sponsor you under their Home Office Sponsor Licence management system once you have successfully obtained Indefinite Leave to Remain. That means less paperwork for your employer and more freedom for you. Often, one of the questions ILR solicitors receive is whether you can work while an ILR application is being processed.
Indefinite Leave to Remain solicitors
If you are on a Tier 2 (General) visa and need advice about Tier 2 restricted work, an application for Indefinite Leave to Remain or if you’ve had your application for leave to remain application refused and want expert advice about your best UK settlement options then call London based Indefinite Leave to Remain solicitors on 0203 959 9123 and speak to one of our experienced ILR solicitors or complete our online enquiry form.
Tier 2 and settlement in the UK
One of the major draws of a Tier 2 (General) visa is that it can lead to settlement in the UK. When Immigration solicitors talk of settlement not everyone knows what they mean. Settlement in the UK means you are a non-UK national who is living in the UK free of Immigration control. You can achieve freedom from Immigration control as a non-EEA citizen by
- Applying for Indefinite Leave to Remain
- Applying for British citizenship – once you have ILR you don’t have to go onto apply for British Citizenship but many individuals do decide to apply for British nationality.
Currently, if you are an EU citizen and you benefit from EU free movement, you don’t need a Tier 2 (General) visa and you can work in the UK free from Immigration control. You can obtain either Permanent Residence or Settled Status under the EU Settlement Scheme to prove your right to live and work in the UK. Once an EU citizen has secured permanent residence or Settled Status, they can go onto apply for Indefinite Leave to Remain and then British Citizenship, should they choose to do so.
With Brexit and the end of free movement the government intends to bring in parity in Immigration processes between EU and non-EEA citizens so the likelihood is that in future years more people will be in the UK on work visas and will be looking to secure Indefinite Leave to Remain.
Why should I apply for Indefinite Leave to Remain?
If you obtained your Tier 2 (General) visa after the 6 April 2012 you cannot stay in the UK indefinitely on your work visa and keep applying for extensions to your work visa. The Immigration Rules say that if you obtained a general work visa after April 2012 then the maximum amount of time you can stay in the UK (with a work visa extension) is six years.
Therefore, after the maximum period of time on a UK work visa, whilst you may not mind being subject to Immigration controls, you will either need to decide to:
- Leave the UK – if you leave the UK after the end of your work visa (or the extension of your work visa) then you won't be able to apply for another Tier 2 (General) visa for twelve months or
- Switch to an alternative UK visa – (any switch application must be made prior to the expiry of your Tier 2 (General) visa as otherwise you will be classed an overstayer and that will have an adverse impact on your Immigration record) or
- Apply for Indefinite Leave to Remain.
What advantages does ILR offer compared to a work visa?
The benefits of ILR are:
- You can remain in the UK indefinitely without having to make repeat visa applications
- You are not restricted to working for an employer with a Home Office sponsor licence – this makes changing your job a lot easier
- You will not be restricted to trying to find jobs that are on the Shortage Occupation List or where your proposed employer has conducted a Resident Labour Market Test and not been able to recruit a settled worker (a British citizen or someone with Settled Status in the UK)
- If your employer has their sponsor licence revoked by the Home Office you won't be forced to find new Employment with another employer who holds a Home Office Sponsor Licence or face having to leave the UK if you are not able to get another Certificate of Sponsorship from another sponsor within the time period granted by the Home Office
- You can set up your own business and be self-employed
- Once you meet the British citizenship eligibility criteria you can make a British naturalisation application.
Going from Tier2 worker to having Indefinite Leave to Remain is potentially not just of benefit to you but also to your employer. That is because once you secure Indefinite Leave to Remain they will no longer have to:
- Sponsor your Employment through a Certificate of Sponsorship
- Pay an Immigration skills charge
- Report on you to the Home Office (for example on your changes of address, absences etc.) under their Sponsor Licence management duties. If your employer fails to comply with their reporting duties they are at risk of their Sponsor Licence either being downgraded, suspended or revoked. If their Sponsor Licence is revoked it means they can't continue to employ non-EEA workers under Tier 2 (General) visas.
Tier 2 to ILR eligibility criteria
Going from Tier 2 worker to Indefinite Leave to Remain status isn’t an automatic transition at the end of your work visa. You need to:
- Meet the ILR eligibility criteria
- Gather together your supporting paperwork
- Make your Home Office application.
It is essential that your ILR application is made prior to the expiry of your Tier 2 (General) visa to avoid you being classed as an ‘overstayer’. If your ILR application is submitted to the Home Office before your Tier 2 (General) visa expires but the ILR application is not processed until after the expiry of your work visa then that is OK.
The Tier 2 to ILR eligibility criteria are:
- You have been in the UK on a Tier 2 (General) visa for at least five years
- You meet the Immigration Rules residence requirement
- You are still employed by an employer with a Home Office Sponsor Licence
- You meet the minimum salary threshold
- You do not have unspent criminal convictions
- You have passed the Life in the UK test
- You have passed the English language test or you are exempt from taking the test.
What is the Home Office ILR residence requirement?
The Immigration Rules residence requirement is different depending on when you secured your Tier 2 (General) visa:
- If you secured your Tier 2 (General) visa before the 11 January 2018 then you cannot have been absent from the UK for more than 180 days during the five consecutive twelve month periods of your Tier 2 (General) visa
- If you secured your Tier 2 (General) visa after the 11 January 2018 then you cannot have been absent from the UK for more than 180 days on a rolling basis to any twelve month period during the qualifying period of your Tier 2 (General) visa.
What is the minimum salary for a Tier 2 to ILR application?
The current minimum income or salary thresholds for a Tier 2 to ILR applicant are:
- If you are applying for ILR before the 6 April 2020 the threshold is £35,800
- If you are applying for ILR before the 6 April 2021 the threshold is £36,200
- If you are applying for ILR before the 6 April 2022 the threshold is £36,900
- If you are applying for ILR on or after the 6 April 2022 the threshold is £37,900.
You should be aware that the government could change the minimum income thresholds for Tier 2 workers to qualify as eligible to apply for Indefinite Leave to Remain.
Why do I need to take the Life in the UK test?
If you have been living and working in the UK for five years to qualify to apply for ILR you make think that you do not need to be tested on life in the UK. However, the Home Office rules are clear. To meet the ILR eligibility criteria you will need to pass the multi-choice Life in the UK test. The pass rate is seventy five percent. The test has to be taken at an approved test centre. Immigration solicitors say that it is best that you prepare for the test as some of the questions can be quite random but a book is published detailing questions and answers and the test will comprise twenty four of the questions contained in the Life in the UK handbook.
Why do I need to take an English language test for my ILR application?
If you have lived and worked in the UK for five years you may have a perfect understanding of the English language. However even if you and your employer know that your English language skills are excellent you may still need to sit the English language test as part of the eligibility criteria for Indefinite Leave to Remain unless you fit into a limited number of exemptions from sitting the English language test, namely:
- You have a qualification in English at B1 level or above of the Common European Framework of Reference for Languages (CEFR) or
- You have a degree that was taught in English or
- You are a citizen of a majority English-speaking country. The Home Office keeps a list of the countries that it deems are majority English speaking.
Can I lose my Indefinite Leave to Remain status?
You can lose your Indefinite Leave to Remain status if you leave the UK for two years. If you are planning a long absence from the UK you should talk to an immigration solicitor about your best options such as:
- The timing of your absence and its purpose and how it fits in with any plans to apply for British Citizenship. Once you secure British Citizenship you can leave the UK without restriction but there are residence requirements on a British naturalisation application
- The option of applying for a returning resident visa.
When can I apply for British Citizenship after Tier 2 to ILR?
You can stay in the UK, without time limit, with Indefinite Leave to Remain status. However, if you choose to do so you can apply for British citizenship after going from Tier 2 to ILR.
If you are married to a British citizen (or someone with Settled Status) you can apply for British Citizenship as soon as you have secured Indefinite Leave to Remain. If you are not married to a British citizen then you will have to wait at least twelve months from the date of grant of your ILR before being able to make a British naturalisation application.
If you decide that there is no hurry to make a British naturalisation application then you can wait for as many years as you want before applying for British Citizenship as your Indefinite Leave to Remain status entitles you to live in the UK indefinitely and free from Immigration control.
Next steps to go from Tier 2 to ILR
If you are interested in going from Tier 2 to ILR then it is important to speak to an Immigration solicitor to ensure that your ILR application stands the best prospects of a successful outcome.
Indefinite Leave to Remain solicitors
Do you have questions about going from a Tier 2 work visa to Indefinite Leave to Remain? If you need help with your planned Tier 2 to ILR application then call the specialist Indefinite Leave to Remain solicitors based in central London on 0203 959 9123 or complete our online enquiry form.
OTS Solicitors are experts in immigration law. The solicitors in the ILR team have substantial experience in applications for Indefinite Leave to Remain and in challenging the refusal of Tier 2 to ILR applications.
London based OTS Solicitors are Legal 500 and Chambers Guide to the Legal Profession recommended Immigration lawyers and have Law Society accredited solicitor status as trusted specialists in Immigration law.