We are currently receiving many enquiries about the need for Biometric Residence Permits or cards (BRPs) from people who have held indefinite leave to remain for many years, often evidenced by stamps in expired or lost passports. For instance, it may come as a surprise to many to discover that a BRP card may be requested, even by current employers, to prove the right to work in the UK.
This post explains the different terms used to describe indefinite leave to remain, why BRP cards may now be needed to prove indefinite leave to remain status, and what the process is to obtain a BRP card to prove this status.
What is indefinite leave to remain, and how do I know I still have it?
Having indefinite leave to remain in the UK means that there is no time limit on the amount of time which a person can be resident in the UK; they are 'settled' and their home is in the UK.
Under normal circumstances this status cannot be lost unless a person stays outside the UK for a continuous period of two years or more; even then an application can be made to have the status reinstated by making a 'returning resident' application (see a previous post here), or, if someone has spent more than 10 years in the UK before a lengthy absence, upon return to the UK they make an application for indefinite leave to remain based on this 'historic' 10 year period of residence (see a previous post here). It is possible to be deprived of this status in certain circumstances, but invalidation or revocation of indefinite leave to remain status will not be covered in this post. Briefly, the Home Office website says the following in relation to these circumstances:-
Can my indefinite leave to enter or remain be taken away?
If you are deported from the UK your indefinite leave will be invalidated.
Indefinite leave can also be taken away (revoked) if you:
- are liable to deportation but cannot be removed for legal reasons, such as the UK's obligations under the Refugee Convention or the European Convention on Human Rights (ECHR)
- obtained leave by deception
- were granted leave as a refugee and cease to be a refugee
Your indefinite leave will lapse if you stay outside the UK for 2 or more years (5 or more, if granted settled status under the EU Settlement Scheme) at a time.
What are the different terms for 'indefinite leave to remain'?
'Indefinite leave to remain' (ILR) has been described over the years in different ways such as indefinite leave to enter (ILE); it is also referred to in the Immigration Rules as being 'settled' or having 'no time limits' on residence in the UK.
Further there are those who were resident in the UK before 1 January 1973, who were deemed to be 'settled' by the operation of the Immigration Act 1971 . The Home Office guidance on this issue states the following about such residents:-
The Immigration Act 1971 took effect on 1 January 1973. Persons who were ordinarily resident and free of immigration time restrictions in the UK on this date are deemed to have settled status, unless they were either:
- exempt from immigration control on this date
- had the right of abode in the UK
As long as the applicant has continued to reside in the UK and has not had their indefinite leave revoked, or are not otherwise ineligible, they will have retained their settled status.
The relevant Home Office website gives further information about what are called 'wet' stamps in passports which state that the holder was previously granted indefinite leave to enter (ILE), as follows:-
ECB9.6 Indefinite Leave to Enter (ILE) and Indefinite Leave to Remain (ILR)
Applicants who are granted Indefinite Leave to Enter (ILE) at a visa issuing Post should have no time restrictions on their stay in the UK, that is, they can stay indefinitely. ILE carries the same entitlement as 'Indefinite Leave to Remain' (ILR) which is issued by the UK Border Agency to those who have already travelled to the UK. Anyone who has ILE does not have to apply for ILR when in the UK.
Although indefinite leave, by definition, will not expire, the ECO is unable to issue a visa to those who meet the criteria for ILE without putting a 'validity date' on the visa. In cases of ILE the 'validity date' on the visa should match the expiry date on the passport. When the applicant gets a new passport, they can apply to UK Border Agency for a transfer of conditions into their new passport. They do not need to apply for Indefinite Leave to Remain (ILR).
Note the above says that such leave will not expire despite having no dates of expiry, but you can apply to have the stamp put in a renewed passport, however see below in relation to obtaining a BRP.
There was a different term for EU nationals who had resided in the UK exercising their freedom of movement for more than 5 years by working, studying etc; this was called achieving 'Permanent Residence', and after applying to the Home Office for recognition that permanent residence status had been acquired, EU nationals would be issued with proof of this status. This proof took the form of cards which stated the date the Home Office recognised that the person had acquired the status. It is important to note that EU nationals still resident in the UK as persons with Permanent Resident status should have transferred this status to 'Settled Status' under the EU Settlement Scheme. The deadlines for these applications which were negotiated in the withdrawal agreements have passed, the last being the end of the 'grace period' on 30 June 2021, but late applications may be still be made, see a previous post here). Finally, therefore, there are those EU nationals who were granted Pre-Settled status who are able to apply for and are granted 'Settled Status' after 5 years of lawful residence in the UK.
Irish citizens are considered to be settled in the UK under provisions relating to the 'Common Travel Area' (the 'CTA'); see a previous post here.
Summary of the different terms
All of those persons discussed above can be referred to generally as having 'no time limit' on their residence in the UK, or as being 'settled' in the UK, and the different terms used to describe their status are:-
- indefinite leave to remain (ILR);
- indefinite leave to enter (ILE);
- those 'deemed to be settled' by the 1971 Immigration Act;
- EU nationals who previously had Permanent Residence status and now transferred this status and have been granted Settled Status under the EU Settlement Scheme,
- those EU nationals who have been granted Settled Status under the EU Settlement Scheme.
What evidence might already be held to prove you are 'settled' in the UK
This might take the place of a stamp in an expired passport, which might state that the bearer of the passport has 'indefinite leave to enter', or 'indefinite leave to remain'. Some people may have paper documents which state that there is no time limit on their residence in the UK. Some may have no particular physical evidence at all, but will have evidence to show they have lawfully resided in the UK for many years.
As set out above, EU nationals may have cards which state that they have 'permanent residence' in the UK, which should have been used by the deadlines or should be used in a late application for 'Settled Status' under the EU Settlement Scheme
Why might you need to provide further evidence of indefinite leave to remain status, such as a BRP card?
Non EU nationals/family members of EU nationals
There is a distinct difference between having 'no time limit' status/indefinite leave to remain and providing acceptable proof of the status in the various circumstances such proof is asked for. Increasingly those without BRPs are being asked for them as proof of having 'indefinite leave to remain status, such as to prove entitlement to be lawfully employed or to benefits. What proof is required in which circumstances are discussed in turn, as follows:-
One such circumstance is when you enter the UK; what the Home Office website says is that you must travel with your current passport and your expired passport which has the stamp, and show the two together when you enter, as follows:-
Your passport has expired
What you need to do depends on if you use your visa to:
- travel to and from the UK
- prove your right to work in the UK
Travel to and from the UK
You can use the valid visa in your expired passport when you're travelling to and from the UK. You'll need to travel with your expired and your new passport.
Many people have become accustomed to this practice. However, the current website also makes suggestions about how to replace the stamp, either by having it placed into your current passport or by applying for a biometric residence permit (BRP):-
You can also choose to either:
- replace your visa with a biometric residence permit if you're in the UK (the cost depends on your visa status)
- transfer your visa to a new passport online if you're outside the UK (it costs £154)
The website goes on to say, however, that such stamps in expired passports cannot be used to prove the right to work, as follows:-
Prove your right to work in the UK
You cannot use a valid visa in your expired passport to prove you have the right to work in the UK. (emphasis added) You must replace your visa with a biometric residence permit.
You now must provide a BRP to show a right to work in the UK, even if you have had indefinite leave to remain for many years.
Identity, study and public benefits
The Home Office website indicates that in order to prove identity, the right to study and to public benefits also are confirmed by the information on a BRP, as follows:-
What's on your BRP
Your BRP will include:
- your name, date and place of birth
- your fingerprints and a photo of your face (this is your biometric information)
- your immigration status and any conditions of your stay
- whether you can access public funds, for example benefits and health services
You may have a National Insurance (NI) number printed on the back of your BRP. Not all BRPs have this – it depends on factors like the date it was issued and your visa status.
You'll need to apply for an NI number if all of the following apply:
- there is not one on your BRP
- you do not already have one
- you're planning to work, claim benefits, apply for a student loan or pay Class 3 voluntary National Insurance contributions
Therefore it would seem that the best practice is to apply for a BRP to confirm definitively the fact that indefinite leave to remain status is held, that the person is 'settled', and has no time limit on their residence in the UK.
EU nationals/Settled Status under the EU Settlement Scheme
Some EU nationals and their family members who have been granted Settled Status will have BRPs issued before 31 December 2020 which still have not expired. The Home Office website says the following about these circumstances:-
If you have settled or pre-settled status
You can continue to use your residence card until it expires. You do not need to apply for a new one.
Until it expires, you can use it to:
- help you re-enter the country more quickly and easily if you travel abroad
- show employers you're allowed to work in the UK
- help prove you qualify for certain benefits and services
Thereafter, or if you do not have a BRP, your settled status can be checked online.
Here is a link to a previous post which discusses the issuing of BRPs to EU nationals, and a link to the Home Office guidance about the online system for checking immigration status for EU nationals with Settled Status granted under the EU Settlement Scheme.
What do I need to do to apply for a BRP if I am 'settled' in the UK?
Firstly, what you do not need to do is to apply for indefinite leave to remain again; you would be applying for a BRP to prove your 'no time limit' status. Here is a link to the Home Office guidance about making a 'no time limit' application:-
If you do not have a document to prove your ILR or ILE
If you believe that you have ILR or ILE but do not have a document to prove it, you can make a no time limit (NTL) application for confirmation of your status in the form of a biometric residence permit (BRP).
You can apply for NTL if:
- your passport containing your status or previous NTL endorsement has been lost, stolen or has expired
- you have ILR or ILE but you do not have any documentary evidence confirming this
- you have legitimately changed your identity since being granted indefinite leave and want this confirmed on a BRP
The guidance sets out what evidence you can provide to prove that you have indefinite leave to remain/are settled in the UK, and here is a link to the online form to make the application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.