Applying for indefinite leave to remain (ILR) is a landmark point in the life of any migrant to the UK. After going through the process of securing leave in the first place, accruing enough continuous time in the UK to gain ILR (typically five years), and then going through the lengthy and costly process of applying, receiving a letter of refusal can be deeply upsetting. Not least because much rests on securing ILR, both for the main applicant and their family members, ILR represents the penultimate step in the process of securing UK citizenship, offering holders considerable certainty and security, and means that they will no longer need to be subject to immigration rules. For these reasons, it is extremely useful to understand why ILR applications are most commonly refused, meaning that you can ensure that your application does not fall into the same pitfalls.
Thankfully, of all the reasons for refusal, this is perhaps the easiest one to avoid. It is important to emphasise that UKVI will not necessarily reject an application due to a small oversight or missing document, but every error potentially increases the chance of refusal. Ultimately, UKVI case officers will make the decision on your ILR application based on the information given to them, so if you have not provided sufficient evidence that you have been in the UK continuously (you must not have been outside of the UK for more than 180 days in any one year period), or if the documents provided incorrectly show you do not meet the minimum income requirement, it stands to reason that a refusal decision is possible. Bear in mind the income requirements vary depending on your circumstances, and UKVI may carry out a pro-rata calculation of your actual income.
The best way to avoid falling into this trap is to read the guidance published by the UK Visas and Immigration (e.g. the guidance on how continuous residence is calculated), ensure that every question answered is complete and correct, and every document requested is provided and meets the standards required (e.g. in terms of translation, format, and whether it is original or a copy). If you don’t have time to do this fully, we recommend that you do no risk submitting your application. Ask an immigration Solicitor to check your application for you; not only will they review your application and documents, but they will also highlight any possible areas which may lead to questions or even refusal, and how these can be resolved (e.g. they may write a covering letter to accompany your application).
It may be that a minor technicality that you have not considered or read means you are not able to gain ILR. You may have spent just one more day over the 180 days allowed in a given one year period, your tax records may show your income is not sufficient, or you may have spent time in prison for a criminal conviction and not enough time has passed since the end of the sentence (one of the grounds for refusal states a person will be refused for ILR if they have “been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months unless a period of 5 years has passed since the end of the sentence”).
There are several grounds for refusal for permission to stay, as defined in the Home Office’s immigration rules part 9. We recommend reading these carefully to ensure that you do not fall foul of any. For example, one of these grounds for refusal relates to making false representations in your application. For this reason, it is vital that you provide honest answers and information in your ILR application, as any attempt to mislead UKVI will lead to immediate refusal. If you are concerned that one or more of the reasons for refusal applies to you, speak to an immigration Solicitor before you apply. They will be able to outline a strategy to mitigate these concerns where this is possible.
Some applicants are surprised and often upset when UKVI check their tax records and find a discrepancy between their taxable income and their stated income level. This occurs because according to Paragraph 9.3.1 of the grounds for refusal, “An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds)”. And in past cases, there have been situations where the Home Office has used tax and income discrepancies as a basis for refusal, as they argue this puts the conduct of the applicant into question. The Court of Appeal has now made it clear that UKVI cannot issue an immediate refusal for this reason and must inform the applicant of the finding and to give them an opportunity to provide new information, and they must consider whether there was a genuine intent to mislead. Nevertheless, it is always advisable from the outset to ensure that the figures you provide in terms of income match those recorded by HMRC.
There are many possible reasons that an application for ILR can be refused. UKVI case officers are supposed to use their discretion where possible and provide the applicant with the chance to provide new evidence where it is needed. That said, by taking the time to understand the grounds for refusal, the eligibility rules, checking your application thoroughly, and providing the correct documents, you will boost your chances of success first time. Alternatively, if you do not have the time needed to prepare a thorough application, or if you just want to give yourself the very best chance of a positive outcome, do consider engaging an immigration Solicitor.
To find out more about the ILR application process or how to challenge a refusal, please phone us on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.
There is absolutely no doubt that recruiting overseas staff for hospitality roles in the UK has become more difficult as a result of Brexit and COVID-19. According to the latest BBC news, the UK’s hospitality industry is experiencing a rapidly rising worker shortage, with vacancies currently at their highest ever levels. With the ending of free movement between the UK and the European Union from the 1st January 2021, the ability for hotels, restaurants, and other hospitality businesses to hire lower-skilled staff Home Office has Europe has been severely curtailed. As a result, we are now working with many businesses across the UK to help them find new and creative ways to recruit the staff they need; an especially pressing concern given the impact of the COVID-19 and the current ‘pingdemic’. If you are desperately trying to find enough hospitality staff domestically, what are your options for sourcing recruits from overseas?
There is a widespread perception that the Skilled Worker visa (which replaced the Tier 2 General visa) is for highly skilled sponsorship only, but this is not the case. This is because the Home Office lowered the skills threshold in anticipation of Brexit from degree level to college level (i.e. A-level). As a result, the list of roles for which overseas nationals can be sponsored to work in the UK grew considerably to include a wide range of senior hospitality positions (admittedly at the more senior end of the spectrum), including chefs, floor managers, licensees, and publicans. The full list of eligible occupations under the Skilled Worker route is available on the Home Office website. We highly recommend looking at this list to see whether at least some of the roles you are currently struggling to fill are included. It is important to note that the Skilled Worker visa route does impose a minimum salary requirement of £10.10 per hour (this is £25,800 for those on a full-time salary). That said, it is possible for a lower salary to be paid in certain circumstances; the Home Office rules state, “You can be paid between 70% and 90% of the usual going rate for your job if your salary is at least £20,480 per year and you meet one of the following criteria: your job is in a shortage occupation, you’re under 26, studying or a recent graduate, or in professional training”.
If the Skilled Worker visa may solve at least some of your recruitment needs, you will need to secure a sponsorship licence in order to sponsor an overseas candidate.
Many businesses assume that if they find a suitable candidate who is from the EEA/EU and is currently living in the UK and they have not applied for EU Settled Status, it is too late for them to apply, and hence they cannot hire them. In some cases, it may be possible for them to apply even though the EU Settlement Scheme closed for applications on 30th June 2021. The Home Office guidance for caseworkers tells them, “In line with the Citizens’ Rights Agreements, there remains scope, indefinitely, for a person eligible for status under the EU Settlement Scheme to make a late application to the scheme where, in light of all the circumstances and reasons, there are reasonable grounds for their failure to meet the deadline applicable to them”. Examples of reasonable grounds for a late application to the EUSS include:
Remember, in order to make a late application under the EUSS, candidates must have been living in the UK before the end of 2021. While a late application is not a possibility for many, it may be for some suitable candidates.
There are several other immigration routes that may enable UK hospitality businesses to find suitable overseas candidates, as follows:
We are not suggesting that the options outlined above are sufficient to resolve the shortage of hospitality workers in the UK entirely, but they may offer a partial mitigation. If you would like to discuss any of the immigration routes outlined above as a means of resolving your hospitality worker crunch, speak to an immigration Solicitor who will be able to explain more.
To find out more about the EUSS or hiring overseas workers, please phone us on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.