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UKSolicitorJA, Solicitor
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To whom it may concern, My wife and I are nearing the 5

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To whom it may concern,
My wife and I are nearing the 5 year qualifying period to apply for Indefinite Leave to Remain (ILR). We do, however, have some questions.
Question 1 – When to apply and what if we overstay our current leave to remain before applying?
Our current leave to remain is through a five year ancestral visa (my wife’s ancestry). The visa was issued on 01/03/2011 and expires on 01/03/2016. We only arrived in the UK on 02/04/2011 (33 days after it was issued).
According to the SET O guidance notes the following applies:
“You and any dependants applying with you should apply before the end of your/their permitted stay in the UK” (in our case 5 years); and
The qualifying period runs; “from the date on which you entered the UK with a visa in the relevant category”.
It goes further and also states/requests:
“Please do not apply more than 28 days before completing the qualifying period”.
In our case, if we were to strictly follow the above, we should be applying no earlier than 05/03/2016 (which is a Saturday, so I assume it will be 07/03/2016. This will, however, mean that we would have overstayed our current leave to remain by several days (7 days).
The same guidance notes (SET O) clearly states that; “If you entered the UK with a visa several weeks or more after the date from which it was valid for use, you may need to apply for an extension of stay to complete the relevant qualifying period”.
I then did some further research and had a look at a document called; “Indefinite leave to remain: calculating continuous period in UK” which I found on the Home Office website.
In this document in states; “The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days".
My interpretation of this is that our qualifying period started on 01/03/2011 and will be completed on 01/03/2016. We will also not be able to apply before 03/02/2016 (28 days before the completion of our qualifying period).
The same document also states; “You can only disregard breaks in the period of lawful residence in the following circumstances” - one of which is; “Applications made on or after 9 July 2012, where the application for indefinite leave to remain (ILR) is made no more than 28 days after the expiry of the applicant’s previous leave”.
This would be relevant in the case should we apply after our leave to remain has expired before we apply for ILR.
It would, therefore, seem that we would be able to apply in March 2016 (after our current leave to remain) has expired OR in February 2016 if our qualifying period started on the date the visa was issued. We need clarity on this so we can apply at the right time.
Question 2 - How many days absence are allowed in the final year of the qualifying period (in our case 5 years)?
The only reference I can find regarding this is again in the; “Indefinite leave to remain: calculating continuous period in UK.” It states; “No more than 180 whole days absence are allowed in any of the five, four, three or two consecutive 12 month periods, depending on the category, preceding the date of the application for indefinite leave to remain (ILR)”. In our case 5 years.
I quote; “The specified continuous period is counted backwards from the date of the ILR application”. In our case, if the date of application is 2 March 2016, the consecutive periods would be as follows:
Year 1 (2 March 2016 to 3 March 2015)
Year 2 (2 March 2015 to 3 March 2014)
Year 3 (2 March 2014 to 3 March 2013)
Year 4 (2 March 2013 to 3 March 2012)
Year 5 (2 March 2012 to 3 March 2011)
I have been told that you are only allowed 90 days in the last year (Year 5). I can, however, not find any documented proof of this anywhere. Could you please confirm if 180 or 90 days absence are allowed in the last year before application for ILR.
Question 3 – Is the main applicant required to have been employed for a certain amount of time prior to the application date (and does he/she need to be earning a minimum salary)?
I have been employed permanently since the end of May 2011, but my wife has not been able to find permanent employment despite continuously trying (and keeping documentation to prove that she has been applying for jobs). I should add that my wife part owns the flat we live in, in London.
As she is the main applicant and I will be applying as her spouse. What are the chances of our application to be refused because my wife has not been able to secure permanent employment and would the fact that she part owns a flat be of any help?
Finally, does my wife need to be earning a minimum salary or does this just apply where a UK citizen marries a foreign national and is not earning enough?
Kind regards,
Nico Pretorius

To answer your 3 questions:

1) I agree with your analysis and you would be eligible to apply for ILR from 3rd February 2016 until the window closes on 29th March 2016. To be on the safe side, I would suggest that your apply for ILR on or a few days before 1st March 2016.

2) The 90 days requirement in the last year is for British nationality purposes, so if you intend to apply for British nationality, you should stay under the 90 days out of the UK rule, see here:

3) The requirement is that your wife is able to work and seeking work, so if she has evidence that she made job applications and explains that she has been unable to find employment although she has actively been seeking employment e.g. rejection letters, letters calling her for interviews, proof of job applications, she should be fine. See question 12Q of form SET(O):

You having permanent employment or her part owning a flat are not relevant.

Hope this helps
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