Discharge

Once you are discharged from the Army your unit should inform the home Office following the procedure outlined in AGAI 50 at this link. The Home Office will cancel your exempt stamp and will send you a letter telling you that you have 28 days to make an application 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*
5. meets the suitability requirements**

*See exceptions for soldiers who discharged prior to March 2014.
**See exceptions for discharging with a criminal conviction below.

• Soldiers are able to apply for ILR up to 18 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 first box on the form Apply as a former HM Forces member
• 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 apply for leave to remain prior to discharge then your biometric card should arrive with your shortly after your date of discharge (be aware that you cannot be granted leave to remain until after your date of discharge).  If you are struggling to apply for jobs and/or housing because you don’t have evidence of your right to work or rent, you should speak to your unit who should raise the issue to the Regional Command non-UK caseworker Al Boon.

Once discharged you cannot work or apply for benefits until you have been granted leave to remain, so the earlier you make the application in advance of discharge the better.

Units should refer to Annex D in the ‘Unit guide to supporting non-British nationals’ at this link.

• Units should brief you on the changes to your immigration status at least six months prior to discharge

Units are to give UKVI warning of the date of discharge from the Armed Forces by completing Part A of the Home Office Notification Form AFC 07037 and emailing it to UKVI. Once UKVI receive Part A they will issue a notice to those SP who have not regularised their immigration status. On the final day of service, the unit must complete Part B of the form ensuring that the SP and unit sign the declaration. The form must again be emailed to UKVI.

Spouses/children in the UK on a 5 year visa issued after 2013 will need to remain on their visa until 28 days before it expires. They DO NOT apply for ILR on discharge with the soldier. Guidance on how to apply for ILR can be found here.

Spouses/children in the UK with any other type of visa will need to contact the F&C team on fcsupport@aff.org.uk for further guidance. Please send a copy of your visa with your enquiry.

• 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.

• 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.

• Due to your Terms and Conditions of Service you will be unable to make an application for citizenship whilst still serving.
• You will need to make an application for ILR  up to 18 weeks prior to discharge instead. See the ‘Applying for ILR’ section.

To qualify for ILR, 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 it came about owing to a deployment in an operational theatre.

Where the cause was not attributable to deployment in an operational theatre, it may still be appropriate to grant indefinite leave 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.

Essentially the longer you have served and the more serious the injury/condition, the more likely that ILR will be granted.  The table at this link gives an indication of when ILR will be granted Download this table You should contact the F&C team prior to making an application as we may advise an application for limited leave instead.

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.

If your injury is attributable to service but it is unlikely that indefinite leave will be granted due to your length of service and/or the severity of the condition/injury, then it will be cheaper to apply for limited leave.

Limited leave may be granted to facilitate further medical treatment or a period of recovery, refer to this table for a guide Download this table. Leave will be granted for 30 months and will usually allow the applicant to work and claim benefits. HOWEVER, this leave does not usually lead to a grant of ILR unless the condition/injury significantly worsens. You may be able to apply for a further period of leave after the 30 months if there is evidence to show that the injury/condition has not improved and further treatment is required, but if you wish to remain here and for your time to start counting towards ILR you are advised to switch onto the 10 year route instead.

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 will be considered ‘outside the rules’ on a 10 year route to settlement.

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.

Recruits discharging during training, who weren’t previously resident in the UK, are very unlikely to meet the criteria to remain here unless there are exceptional circumstances. In most cases an application for leave to remain will be refused and you will be given a ‘Notice of liability for removal’ which may only grant you a week to leave the UK voluntarily. If you do not leave the UK voluntarily your ability to re-enter in the future will be affected.

Switching onto a work or student visa – it may be possible to switch if you make an application prior to your exempt stamp being cancelled. However strict requirements will need to be met. See https://www.gov.uk/browse/visas-immigration/student-visas or https://www.gov.uk/browse/visas-immigration/work-visas

You will need to seek alternative immigration advice about these routes as the AFF F&C team is not able to provide advise. Use this website to find regulated immigration advisors who may be able to assist.

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.