Indefinite leave to remain

[sharvey]

Hi,new to forum,my wife is thai and got indefinite leave to remain back in 2012 .We would like to know if indefinite is indefinite and we don't have to do anything else for her to live in the UK (she doesn't want to go for residency,life in the uk test too daunting).I know this sounds a bit silly but I find the uk gov.website very confusing also could anyone tell me what to do, as we are going back to Thailand for a month next year and her passport with the indefinite leave stamp in it runs out soon, do we as someone has suggested take a new passport and the old one with the stamp in it.Thanks.

[7by7]

Indefinite is indefinite; but not permanent

It means that she can live in the UK indefinitely, but her ILR can lapse or be cancelled.

It will lapse if she spends a continuous period of 2 years or more outside the UK. In which case she will need to apply for the appropriate visa to enter the UK again.

If it becomes apparent to an Immigration Officer at port of entry to the UK that she lives outside the UK and uses her ILR just for visits then her ILR could be cancelled; though she would be allowed in as a visitor on that occasion.

When her passport expires she can't transfer the sticker to her new passport; instead she applies for a Biometric Residence Permit. See under "You have permission to settle (‘indefinite leave to remain’)" on this page.

However, as it says at the top of that page, she does not have to do this; carrying the old passport with her ILR sticker in and her new passport is fine.

I'm not sure what you mean by

she doesn't want to go for residency,life in the uk test too daunting

She has residency; her ILR. Do you mean citizenship?

If she obtained her ILR in 2012, she will have needed to pass the LitUK test for that and can use the same test result for citizenship.

She will, though, need to pass a speaking and listening test at B1 of the CEFR or equivalent, if she has not already done so.

I would recommend going for citizenship; once British she will not have to worry about time spent out of the UK, transferring stickers to new passports, changes to the rules, getting visas to visit another European country etc.

See British citizenship basics for more details.

But it is, of course, up to her.

Edited September 28, 2014 by 7by7

[Richard W]

When her passport expires she can't transfer the sticker to her new passport; instead she applies for a Biometric Residence Permit. See under "You have permission to settle (indefinite leave to remain)" on this page.

However, as it says at the top of that page, she does not have to do this; carrying the old passport with her ILR sticker in and her new passport is fine.

Except that she may have to downgrade to "no time limit" and apply for a biometric residence permit if she wants to have a new employer. I mentioned some of the drawbacks in the thread Biomretirc Card when I explained what a 'biometric card' was.

There is a distinct possibility that she may have to carry passports between the old passport with the ILR sticker and the current passport. Unfortunately, it seems that it is no longer possible to extend Thai passports, so she could have quite a stack to carry.

[bobrussell]

She does not need to apply for a biometric residence permit to have a new employer. She just has to show the ILR in her old passport. The new employer photocopies it and keeps it for his records. Simple.

This is all that is required to indicate that appropriate efforts have been made to ensure she is legally allowed to work. If in doubt the employer can phone the employers helpline. Employers only have to show 'due diligence' when they take someone on. I make checks, including passport checks on all new members of staff as part of the employment process. Takes about 5 minutes.

Makes sense to keep all expired passports safe but there is no requirement to carry them all! The ILR vignette is the important bit.

ILR = no time limit. The clue is in the word Indefinite!

[Richard W]

Employers only have to show 'due diligence' when they take someone on.

I'm glad to hear that. Is this a court ruling? I'd assumed that in order to establish a statutory excuse, one had to see (and copy) the documents prescribed by the regulations. My understanding was that so long as the employee indeed had a right to work, you would be safe, but due diligence would not be a defence against a fine.

The Home Office currently maintains that you would be wrong in your approach - see Frequently asked questions about the illegal working civil penalty scheme (dated May 2014) Question 13. The answer includes

An Indefinite Leave to Remain stamp in an expired passport is not acceptable because it is insecure, easily forgeable and the person might no longer have their indefinite leave subsequently remaining overseas for more than two years. Instead, you should provide your potential employee or employee an opportunity to obtain current documents. Generally this will be a Biometric Residence Permit

Are you perhaps relying on the October 2013 version of Full guide for employers on preventing illegal working in the UK? (I can't find a link to this from the master page at https://www.gov.uk/government/collections/employers-illegal-working-penalties.) As far as I am aware, an up-to-date list is available in the July 2014 document An employers guide to right to work checks. The latter document disallows ILR endorsements in expired passports.

[Richard W]

Employers only have to show 'due diligence' when they take someone on.

I'm glad to hear that. Is this a court ruling? I'd assumed that in order to establish a statutory excuse, one had to see (and copy) the documents prescribed by the regulations. My understanding was that so long as the employee indeed had a right to work, you would be safe, but due diligence would not be a defence against a fine.

Sorry, I think I misunderstood you. I thought you were implying that you checked whether a prospective employee had the right to work, but I now realise that by 'due diligence' you may just mean checking that they have the documents needed to provide a statutory excuse (or confirmed the existence of a relevant application under consideration or appeal), and that they appear genuine and to apply to the prospective employee. For example, one may accept a full British birth certificate and National Insurance number together, although in general these neither demonstrate current immigration status nor indeed that the person to whom they apply was ever a British citizen.