Discharge

01   Applying for Indefinite Leave to Remain (ILR) on/after discharge

Soldiers

Once you are discharged from the Army your exempt stamp is cancelled and you will be granted 28 days to make an application for Indefinite Leave to Remain (ILR) in order to remain in the UK (if you are eligible). See below for guidance on when you can apply.

Requirements

The requirements for ILR in the UK as a foreign or Commonwealth citizen discharged from HM Forces are that the applicant:

1. has completed at least four years’ service with HM Forces, or
2. meets the medical discharge criteria (see section below) and
3. has been discharged less than two years before the date of application* and
4. is not in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded** and
5. meets the suitability requirements*** – see the Main requirements’ section on the Visas page.

*See exceptions for medical discharges with a criminal conviction below and those who discharged after four years prior to 2014, but did not apply for ILR.
**See exceptions for soldiers who discharged prior to March 2014.
***See exceptions for discharging with a criminal conviction below.

When and how to apply:

• Soldiers are able to apply for ILR up to 10 weeks prior to discharge
• You should complete form SET(AF), click here for a link to the online form and guide
• You should tick the box marked ‘a former member of HM Forces on discharge under Appendix Armed Forces’
• You CAN include your spouse and children on the same application form if they are eligible (see below)
• You DO NOT have to complete sections 5, 6 and 7
• You DO NOT have to meet any English language requirements or take the Life in UK test or provide details of your finances
• If you make your ILR application prior to discharge, UKBA should send you an ‘indicative letter’ to assist with making arrangements for housing and employment whilst you wait for your ILR. Click here for a sample letter. This letter should be accepted as proof of your status in the UK; if any potential employer or local authority refuses to accept this, then you should contact the Armed Forces enquiry line at armedforcesenquiries@homeoffice.gsi.gov.uk with full details.

Spouses and children

Please note that spouses are only eligible for ILR on discharge if the soldier is also eligible.

Spouse has limited leave visa issued after 1st Dec 2013 under new rules.

You should have a visa issued for five years and will not be eligible to apply for ILR until 28 days prior to the visa expiring.

You will need to meet the Knowledge of Language and Life in the UK requirements (more details can be found here)  and minimum income requirements.

Complete form SET(AF), you will need to tick the box marked ‘partner or child of a member of HM Forces who has been discharged’ on page 3.

There will be no applications under this route until Dec 2018 at the earliest. If you weren’t issued a visa for five years, click here and read the ‘visa error corrections’ section for information on how to get this rectified.

Spouse does not have a 5 year visa or is an overstayer

If you are an overstayer or are not sure what type of visa you have, please contact the F&C team and send us a copy of your current or previous visa(s).

Unit responsibilities:

Units should refer to Annex E in the ‘Unit guide to supporting non-British nationals’ on Dii for all details.

• Units should brief you on the changes to your immigration status at least three months prior to discharge
• The unit should inform UKVI up to 10 weeks before the discharge date by completing column A of the Discharge Proforma (Appendix 1 to Annex E above) and faxing it to the Armed Forces Team at UKVI
• On the day of discharge, the unit should strike through the exempt endorsement on the passport with the statement “ceased and the discharged or finished date” written over the exempt endorsement. The unit must complete Column B of the Discharge Proforma (Appendix 1 to Annex E) ensuring the Service person signs the declaration
• They should ensure that a faxed letter granting you 28 days’ leave to remain arrives from UKVI. Until UKVI have been informed of your discharge and have sent you a letter granting you 28 days to remain, you are still considered to be exempt for immigration purposes.

Problems:

If you have been discharged and are still waiting for your ILR after a number of weeks, please contact the F&C team.

02   Applications from soldiers who discharged after four years’ Service without applying for ILR

Guidance published in May 2015 allows soldiers who are overstayers and/or discharged more than two years ago, to apply for ILR if they met the requirements above at the time of discharge.

The full guidance can be found here on page 11 & 12, and says:

“They must not be regarded an overstayer if they have not had any form of leave since they ceased to be exempt from immigration control. This is regardless of how long ago they were discharged.

It will be appropriate to consider granting settlement outside of the Immigration Rules when:

• the applicant has served a tour of duty in a conflict zone or been deployed on humanitarian duties within the 10 years before the date of application
• the only reason for refusal under the Immigration Rules is because the application is out of time and/or the applicant was discharged more than 2 years ago
• it is not possible to show that the Ministry of Defence (MOD) or UKVI informed the individual of the responsibility to regularise immigration status on discharge”

You should complete form SET(AF) as above and should provide your certificate of discharge. Contact AFF’s F&C team first before making an application.

03   Applying for citizenship prior to discharge

All information about applying for citizenship can be found on the citizenship page.

WARNING: You should only apply for citizenship if you have at least four to six months before your date of discharge. This is because applications can take up to six months to process and you won’t be able to continue with a successful transition if you don’t have evidence of your right to remain in the UK.

F&C soldiers are unique in that they can apply for citizenship without first requiring ILR. This is because their exempt stamp is considered to be ILR for the purposes of naturalising.

So it makes sense to apply for citizenship during Service as it means you won’t have to then apply for ILR on discharge, thus saving a lot of time and money.  However, there is no requirement to apply for citizenship to be able to remain permanently in the UK, you are only required to get ILR.

Becoming a British citizen does not affect your spouse’s visa.

What happens if my application for citizenship is not processed prior to the end of the 28 days?

• Unlike applications for visas, your immigration status at the time of application for naturalisation will not continue whilst the application is being processed. So once the 28 days is over, you will be considered to be an overstayer. However, your application for citizenship will not be refused if you become an overstayer.
• The main problem with becoming an overstayer is in cases where the citizenship application is refused. As an overstayer, you will theoretically not be eligible for ILR and may have to apply for limited leave to be able to remain in the UK. You should therefore be very careful to read the citizenship guidance (particularly the good character guidance) to ensure you meet all the requirements.
• If your application has not been processed after six months, you should contact the F&C team who should be able to check on progress.

Should I apply for citizenship if my wife still has a limited leave visa?

New transition rules now mean that it no longer matters if the soldier becomes a British Citizen whilst the spouse still has their limited leave visas. It is also no longer cheaper to make a joint application for ILR. The cheapest option is for the soldier to apply for citizenship prior to discharge and for the spouse to apply for ILR.

The spouse is eligible for ILR as long as the soldier has served for four years. See the ‘Applying for ILR’ section above for more information.

Applying for Citizenship after discharge

• You can only apply for citizenship after discharge if you have already been granted ILR. If you don’t apply for citizenship prior to discharge, you will need to apply for ILR instead within 28 days of the date of discharge.
• Discharged soldiers can apply for citizenship immediately after they have been granted ILR if they meet the other requirements. There is no requirement to wait for 12 months.
• This information is clearly written in the UKBA guidance, see below. This applies to all F&C and Gurkha soldiers.

“While in the Armed Services, applicants are exempt from immigration control and therefore free of immigration time restrictions. Applicants will have been free of immigration time restrictions throughout their period of Service. In many cases, former Armed Services personnel will have been granted ILR on discharge and will meet the requirement to have been free of immigration time restrictions in the 12 months prior to the date of application.”

• However, spouses will need to apply for ILR and then wait for 12 months prior to applying for citizenship as they were not exempt from immigration control at the time of the application.

Gurkha soldiers:

• You will be unable to make an application for citizenship whilst still serving.
• You will need to make an application for ILR instead. See the ‘Applying for ILR’ section.

04   Discharging from overseas

F&C soldiers can only be discharged overseas with the agreement of the chain of command and with proof that they can legally live in that country i.e. a German visa to reside in Germany. Soldiers wishing to return to their country of origin must discharge from the UK.

The circumstances of your discharge and how long you have served may determine how soon you can go back to the UK prior to the date of your discharge. You should speak with your unit/UWO as soon as possible to establish the earliest date you can return to the UK.

Soldier applications for ILR/citizenship

Soldiers are unable to apply for ILR whilst overseas, they must return to the UK to make the application. Citizenship can be applied for, but only if there is enough time to complete the process prior to posting back to UK. Refer to sections above.

Spouses married to commonwealth soldiers

• Spouse/family with no valid visa: Contact the F&C team for assistance.
• Spouse/family with limited leave to remain visas: If your visa is due to expire within 28 days of returning to the UK, you should contact the F&C team for assistance.
• Citizenship: If your soldier is British, you could apply for citizenship under the Crown Service rules – for the criteria, see overseas applications on the ‘Citizenship page‘. This will only be possible if you have enough time (at least six months) prior to posting to the UK.

05   Discharging with a criminal conviction

Limited leave

Limited leave will usually be granted where a foreign or Commonwealth soldier on discharge fails to meet the suitability requirements for ILR – see below. You still need to meet the suitability requirements for limited leave to remain, so if you are unsure about your conviction, you should contact the F&C team. You should complete form FLR(AF).

An application will be refused if any of the following apply:

• You have a custodial conviction* of less than 12 months within the previous seven years
• You have a custodial conviction* of 12 months – four years within the past 15 years
• You have a custodial conviction* of four years or more
• You have a non-custodial** sentence or other out of court disposal that is recorded on your criminal record within the 24 months prior to the date on which the application is decided
• In the view of the Secretary of State, your offending has caused serious harm or you are a persistent offender who shows a particular disregard for the law
• Permitting you to remain is not conducive to the public good because your conduct, character, associations or other reasons make it undesirable to allow you to remain in the UK

An application will normally be refused if any of the following apply:

• Whether or not to your knowledge:
  • false information, representations or documents have been submitted in relation to the application (including false information submitted to any person to obtain a document used in support of the application)
  • there has been a failure to disclose material facts in relation to the application
  • you have failed to pay charges in accordance with the relevant NHS regulations on charges to overseas visitors; and the outstanding charges have a total value of at least £1,000

*Custodial convictions include time spent in MCTC

** non-custodial convictions include summary hearings/courts martial and any court-imposed fine (e.g. for speeding, assault or drink-driving). They do not include fixed penalty fines. They do include cautions.

Applying for limited leave

• Tick the box in section 2 marked ‘limited leave as a HM Forces member on discharge’
• You must complete sections 3 and 4 if you have a partner, even if they are not applying for a visa with you
• If you are applying on your own, ignore section 7 and got straight to 8B. If you are applying with family members then you will need to complete this section. If your family members had visas as dependants prior to 1 Dec 2013, then you should tick ‘yes’ in question 7.1A and then go to section 7B
• You should be granted on code 1A, which allows access to both work and benefits. If you are not granted this, please contact the F&C team.

When can I apply for indefinite leave?

This will usually depend on whether your conviction was custodial or non-custodial; you should check the suitability requirements above or contact the F&C team.

Once you are eligible you can apply for ILR using form SET(AF).

Is my military conviction the same as a criminal conviction?

Guidance has been published, which should make it much clearer to work out whether your conviction in a military court (whether a summary hearing or court martial) is considered to be criminal or disciplinary and how it will affect an application for settlement or citizenship.

You should read the guidance at this link carefully.

If you are still unsure about your conviction, then you should speak to your chain of command (platoon officer or OC, discipline clerk or RAWO).

06   Medical discharges with less than four years' Service

Applications for ILR

To qualify for settlement, the applicant must have been medically discharged by the MOD as a result of an injury or illness, which is attributable to Service in HM Forces* and:

• Where the cause was attributable to deployment in an operational theatre
• Where the cause was not attributable to deployment in an operational theatre, but it is appropriate to grant leave to enter or remain in the UK following an assessment of the following factors:
  • The seriousness of the injury
  • The need for further medical treatment in relation to the illness or injury and the availability of such medical treatment in the applicant’s country of origin.
  • The prognosis for recovery, including whether the injury or illness will affect the applicants ability to support themselves in their country of origin and
  • The length of reckonable Service in HM Forces at the time of the applicant’s discharge.

Applications should be made using form SET(AF).

*Attributable to Armed Forces Service. One of the requirements to be eligible for any grant of leave on medical discharge with less than four years’ Service is that your injury or condition has to have been assessed as being attributable to s ervice. If your medical documents (FMed 133 or 19) do not state this, then you can also try to make a claim through the Armed Forces Compensation Scheme (AFCS). If you are given compensation under the AFCS following medical discharge, then UKVI will accept this as evidence that the injury was attributable to Service. More information about the AFCS can be found here. Soldiers discharged due to non-freezing cold injuries (NFCI) have successfully claimed compensation under this scheme.

Suggested documents

• Evidence that the injury was attributable to Service (and where applicable due to operations)
• Medical documentation detailing the injury and the prognosis (F Med forms, doctors letters etc.)
• Statement detailing your personal circumstances e.g. how the injury is affecting your life, family situation (any children born in UK for example), situation in your country of origin with regards to medical facilities. All facts mentioned in the statement will need to be backed up by strong evidence. The longer you have served for, the more likely you are to be granted ILR, regardless of the seriousness of the injury.

Applications for limited leave

If you cannot meet the requirements above, limited leave will be granted instead in the following circumstances.  If you know that you won’t be granted ILR because of your length of Service, there will be no point in making the application for ILR. It will be cheaper to apply for further leave on form  FLR(AF).

• The cause of your medical discharge was attributable to Service in HM Forces and
• Before you can return to your country of origin, it would be appropriate to grant limited leave to facilitate further medical treatment or a period of recovery.

Limited leave will be granted for 30 months on code 1A, which will allow access to work and benefits. The evidence required for limited leave will not be great, but there is no guarantee that indefinite leave will follow a period of limited leave.

Applications for leave if injury or condition was not a result of Service

Unfortunately, there is no longer discretion within the Armed Forces rules for leave to be granted if your injury or condition is not attributable to your Service, however, the Home Office have agreed to a flexible approach on a case-by-case basis. Any such application should be made on form FLR(AF) and will be considered ‘outside the rules’.

Your eligibility to remain here is likely to depend on your personal circumstances e.g. if you have any British children, the time you have served for and lived in the UK for, the prognosis of the injury/condition and the situation in your home country with regards to continued treatment. Download this table, which gives some indication of the likelihood of success depending on the injury and length of time served. You will need to submit a covering letter with full details. Please contact the F&C team who can provide further information.

What can AFF do?

Although each case is different, it is not usually within our remit to provide individual assistance to soldiers who are discharging with less than four years’ Service. These cases can require a lot of complex casework and may require a Level 3 caseworker if the application is refused. If you contact us we can give you some general advice and can refer you to an immigration advisor.

07   Housing considerations on discharge

• Click here for information on civilian housing options
• Contact the Joint Services Housing and Advice Office (JSHAO) as soon as possible. As well as being able to offer a wealth of advice on housing options, they also run a referral scheme to help you into social housing up to six months prior to discharge, predominately that provided by Housing Associations
• JSHAO has been able to house families whose ILR has not yet been issued and has a lot of experience in assisting F&C families
• You should not be disadvantaged by private landlords conducting ‘right to rent’ checks. They should accept your ID card (whether expired or not) and your driving license as evidence of your right to rent. Please click here for further information.

08   Services Cotswold Centre

F&C soldiers who wish to stay at the Services Cotswold Centre throughout the discharge process need to show that they have the funds to make the necessary applications for ILR, as well as the funds to pay for their stay until ILR is issued and benefits can be applied for.

Unfortunately, if you cannot prove that you have the necessary funds, you may not be eligible to stay. The Services Cotswold Centre is keen to avoid circumstances in which an F&C family is unable to apply for ILR within 28 days of discharge, then become ‘overstayers’ and have to leave the UK.

The Services Cotswold Centre has a small but dedicated team, who will assist you in the transition to civilian life. They will assist with ILR applications and with applications for relevant benefits. They are also able to offer advice to families applying for social housing.

The Services Cotswold Centre has a limited number of properties, which are in great demand. They are primarily a transit facility for serving personnel and their families, which may on occasion mean they are unable to accommodate personnel who leave the Service.

You should speak to your unit welfare staff if you are interested in using this facility.