Settled Status, Permanent Residence, and Indefinite Leave to Remain

Settled Status, Permanent Residence, and Indefinite Leave to Remain- What’s the difference and which one do I need?

These sound as if they are the same thing, and people often use them interchangeably.  However, they are different forms of leave and it is important to understand the difference.

In this post, I will look at the main differences between the three types of status and why you should check which one you have.

Permanent Residence

Permanent Residence is a status under EU law and applies to EU nationals and their non-EU family members. Ultimately, post Brexit, permanent residence will become ineffective in the UK. EU nationals will be required to apply for settled status in order to maintain their legal right to live in the UK.

EU nationals have the right to free movement i.e. the right to live in another member state in order to seek work, run a business, study or live self sufficiently. This is referred to as ‘exercising treaty rights’.

Once an EU national has been exercising treaty rights in another member state for 5 years, they become ‘permanent residents’ automatically. They do not need to make an application, and a lot of people gain ‘permanent residence’ without realising that it has happened.

Once an EU national has got ‘permanent residence’, they no longer need to be exercising treaty rights in order to stay in another member state.

EU nationals also have comparatively generous right to their non-EU family members live with them within the EU. Non-EU family members do need to apply for Permanent Residence rather than getting it automatically.

Indefinite Leave to Remain

Indefinite Leave to Remain (ILR) stems from the Immigration Rules and is also often referred to as ‘settlement’.

You don’t get ILR automatically; instead you have to make an application to the Home Office and they decide whether to grant it.

Indefinite Leave to Remain allows you to live and work in the UK without limitation. Those with ILR can claim public funds in the same way that a British citizen can.

Historically, if you were granted Indefinite Leave to Remain you got a stamp in your passport, and many people still rely on this. However, since DATE, the Home Office have issued ‘Biometric Residence Permits’ to people granted Indefinite Leave to Remain.

Some EU nationals do have indefinite leave to remain for various reasons. For example, they may have moved to the UK before we joined the EU, or before their country of nationality joined the EU.

Settled Status

Settled Status was introduced in March 2019. It is a new status for EU nationals and their family members who have been living in the UK for 5 years before the UK leaves the EU. It is intended to supersede Permanent Residence.

Settled Status is essentially a type of Indefinite Leave to Remain, as EU nationals have to apply for it under the Immigration Rules. That said, some of the conditions attached to it may be more advantageous to ‘normal’ Indefinite Leave to Remain. The exact details of this will not be known until the withdrawal agreement is passed by Parliament.

Does it make a difference?

Yes! It is important that you know which status you have.

Firstly, ‘Permanent Residence’ will cease to be effective in the UK after we leave the EU and the transition period ends.

A lot of EU nationals who applied for Permanent Residence cards falsely believe that they ‘have settlement’ and do not need to apply for settled status.

You could be forgiven for thinking that ‘permanent’ means ‘forever’. Unfortunately, the Home Office are not always very forgiving. Unless they have naturalised as a British citizen, or are Irish, they will need to apply for settled status in order to continue living in the UK in the long term.

Secondly, there are some differences between the different types of status. For example, you will loose ILR if you are outside the UK for more than 2 years without returning. However you keep Settled Status for up to 5 years after leaving the UK. This is important if you have been outside the UK for an extended period and wish to return.

Thirdly, if you have had children in the UK, your immigration status at the time that they were born will have an impact on whether they are ‘born British’ or not. This will be covered in a subsequent post.

Fourthly, those with Permanent Residence and Settled Status have more generous provisions in terms of bringing non-EU family members to live with them in the UK.

This is a post designed to provide general information on this issue, not legal advice. If you need to discuss your own particular situation, please get in touch.

It is important to understand which type of status you have, or which you should apply for. If you need advice on your own situation please do contact us here.

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