Discharge procedures

Discharge Procedures

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Applying for ILR

Requirements for indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces

276O. The requirements for indefinite leave to remain in the United Kingdom as a foreign or Commonwealth citizen discharged from HM Forces are that:

(i) the applicant has completed at least four years' service with HM Forces*; and

(ii) was discharged from HM Forces on completion of engagement; and

(iii) was not discharged from HM Forces more than 2 years prior to the date on which the application is made; and

(iv) on the date of application has leave to enter or remain in the United Kingdom; and

(v) does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. *See the section below for more information.

Once you are discharged from the Army your exempt stamp is cancelled and you will have 28 days to make an application for Indefinite Leave to Remain (ILR) in order to remain in the UK (if you are eligible).
If you wait until you are discharged before making your application for ILR you and your family could find yourself in a difficult position, with nowhere to live and with no access to benefits whilst you wait for the ILR to be issued.
It is therefore recommended that you follow the steps below. You should ensure your unit is aware of the procedures to follow. The special procedures for discharging an F&C soldier can be found by clicking here.

Single Commonwealth/Gurkha soldiers

Single Commonwealth soldiers: If you have lived in the UK for five years (time spent on overseas assignments counts towards this) then you may wish to consider making an application for Citizenship before you are discharged. Whilst you are still serving you don’t need to have ILR in order to apply for Citizenship. To make an application see the 'Citizenship and Life in the UK test' page.
Single Gurkha soldiers will be unable to make an application for Citizenship whilst still serving. You will need instead to make an application for ILR up to 10 weeks prior to discharge.
If you are single, it will not be necessary for you to wait for 12 months after getting your ILR before you are eligible to apply for Citizenship. You could apply for Citizenship immediately. This is because your exempt stamp covers the requirement to have been free from immigration time restrictions in the 12 months prior to applying for Citizenship.

Married Commonwealth/Gurkha soldiers

It is cheaper if you are married, to make a joint application for ILR as you and your family can be included on the same form. 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.
You should not get Citizenship prior to discharging unless your spouse already has ILR or Citizenship. If you get Citizenship then they will have to get a ‘probationary spouse visa’ and wait for two more years before being eligible to apply for ILR. See below for further information.

Married British soldiers

If you are a British Citizen but your spouse and family still have the visas that were issued prior to you naturalising, then they will have to apply for the two year probationary spouse visa FLR(M). See the ‘ILR and Visa extensions in UK’ page.

How to make an ILR application: You will need to download the SET(O) form and guide - click here. Read the information carefully before completing the form. You don't have to complete section 9. You have the option of making an appointment at a Public Enquiry Office for a one-day service. This option is more expensive that a postal application but is obviously much quicker (a postal application can take 3 months or more). However you must have actually discharged in order to make your application at a PEO, this is because you cannot be issued ILR until your exempt stamp has been cancelled. All information can be found on the link above.

Documents required for an ILR application: As well as the documents requested in part 10A of the form, it is also very important that you include Army Form B108C with your application. The application will not be considered without this and will be delayed considerably until it is supplied. This document has the Queens Regulation paragraph number under which you were discharged on it, UKBA need to see this in order to determine why you were discharged. Your unit will need to supply you with this form, the form can be downloaded from ArmyNet. Guidance for units about the form can be downloaded by clicking here.

Unit responsibilities: You should be briefed on the changes to your immigration status during resettlement interviews at least three months prior to discharge, where possible. It is the responsibility of the unit to inform UKBA of your decision and personal details up to ten weeks before the discharge date by faxing a Discharge Proforma to the Armed Forces Team at UKBA. On the day of discharge, the unit should stamp your passport to state that the exemption has ceased. They should also ensure that a faxed letter granting you 28 days leave to remain arrives from UKBA. They also need to give you the signed B108C form. Units should refer to Annex D to DPS(A)/28/9/PS4(A) for all details.

I have left the Army but did not apply for ILR because I thought I could remain on my ‘exempt’ stamp:

You are not alone! AFF has received a number of such cases from soldiers who were not discharged using the correct procedures. They have presumed on discharge that their ‘exempt’ stamp would remain valid, the Unit have not informed UKBA of the discharge and an ILR application has not been made. In these cases, if it has been less than two years since discharge and you were eligible to apply at the time of discharge, there should be few problems. You are not considered to be an ‘overstayer’ because your exempt stamp remains valid until the Armed Forces Team at UKBA are informed of your discharge and issue you with a letter granting you 28 days leave to remain in the UK. As long as you make your application for ILR within these 28 days you will be considered for ILR under the usual rules. Contact me and I will start the ball rolling. If however it has been more than two years since discharge, you may find that you are no longer eligible for ILR. Please contact me and I will try to assist.

Discharges following military or criminal convictions

Criminal Convictions: On 6th April 2011 UKBA added a new requirement to the existing immigration rules for applying for settlement/ILR in the UK and that is that you must not have any unspent convictions on the date of application. If you do your application must be refused. If you are unsure whether the conviction you received is ‘spent’ or not you can click here for further information. Note that conviction includes a fine. It does not include Fixed Penalty Offences. Also declare any pending proceedings. The sentence in question can be passed, or an order made, by the courts of any country, including court martial for persons subject to military discipline. Therefore convictions outside of the UK will be treated as if that conviction occurred in the UK.

AFF is working closely with Veterans Aid to establish the best way forward for soldiers who will be unable to apply for ILR on discharge due to an unspent conviction. The rules also state that a soldier can only apply for ILR up to two years post-discharge, so the new requirement would also prohibit someone from applying for ILR even once the rehabilitation period was over, if that was not till more than two years post-discharge. This rule affects soldiers more than civilians on a work permit, because soldiers are unable to apply for an extension of their current immigration status once discharged. We do not believe that it is reasonable for a soldier who may have served for many years and who may have seen a number of operational tours, to have to return to their home country particularly if the crime committed was a ‘minor offence’ such as a court imposed fine for speeding.

Following a request for clarification, UKBA have responded to say that a soldier with an unspent conviction should still apply for ILR as all circumstances will be taken into account. However, a strong case will need to be made to show good character in all other areas.

If you are due to discharge shortly and have an unspent conviction, you should contact Margaret Mervis, lawyer at Veterans Aid in the first instance at advocacy@veterans-aid.net.

Military Convictions: The issue of military convictions and how they are assessed by caseworkers has been raised at the UKBA/MOD working group. There is some concern that a higher bar is being applied to Service personnel compared to their civilian counterparts and this has certainly been the case with a couple of Citizenship applications. Whilst it is advisable to mention any military conviction that you received during your service (AFF is aware of a couple of cases where ILR has been refused because a military conviction was not disclosed), if it does not fall into one of the following categories then it is not considered to be a criminal offence with a corresponding rehabilitation period. A sentence of more than 30 months, awarded by Court Martial under section 71A(3) or (4) of the Army Act 1955 will never become spent.

A sentence of cashiering, discharge with ignominy or dismissal with disgrace from Her Majesty’s service.  Ten years

A sentence of dismissal from Her Majesty’s service.  Seven years

Any sentence of detention in respect of a conviction in service disciplinary proceedings.  Five years

If you experience any problems applying for ILR due to a military conviction, you should contact Margaret Mervis at Veterans Aid – see email address above.

Medical discharges

If you are being medically discharged and have not served for four years, there is detailed guidance on the UKBA website giving the circumstances under which the normal requirement to have completed four years service may be waived. Click here, then click on Section 2A – persons seeking settlement and then scroll down to page 9-13. As well as enclosing an Army Form B108C with the ILR application, you should also make a written request to your medical officer for a letter outlining the circumstances and nature of the injury or illness and submit copies of your F Med 133, 19 and or 23.

Housing options

You should 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 also been able to house families whose ILR has not yet been issued and has a lot of experience in assisting F&C families. It is unlawful for providers to assume that you are ineligible for housing assistance, if you are able to sustain your rental obligations then they should not discriminate on grounds of nationality. Contact JSHAO on 01722 436575 or www.mod.uk/jshao. Your unit should inform the Housing Allocations Service Centre (HASC) four months before your date of discharge and under normal circumstances you will be issued with 93 days notice to vacate, timed to expire on the last day of service. The HASC will issue a ‘Certificate of Cessation of Entitlement to Occupy SFA’ to any family which requests it in order to assist the family in seeking social housing. Should you need to remain in your married quarter once the Notice to Vacate has expired, an alternative occupancy agreement may be offered by the HASC. Market rents will be payable on the property. If your ILR application has been delayed and you are unable to move out of your property, it is important that you keep DIO OPS Accommodation updated.