Immigration Issues

The CIAU are not qualified to advise or assist with immigration applications. We are however able to put you in touch with specialist Solicitors who will be able to assist you. The following advice is for information purposes only and should not be relied upon without having sought specific legal advice:

Q: I am a Commonwealth Soldier who is shortly to be discharged as a result of my cold injury. Will I be allowed to remain the UK?

Whilst you are serving in Her Majesty’s Armed Forces you are exempt from immigration control. Upon your discharge the Home Office are likely to grant you 28 days leave to apply for permission to remain in the UK. During those 28 days you will not have permission to work or have recourse to public funds.

Q: What criteria must I satisfy to qualify for indefinite leave to remain?

Personnel who have served for over four years are eligible for Indefinite Leave to Remain as long as they were discharged from HM Forces on completion of an engagement, were not discharged more than two years prior to the date on which the application was made and on the date of the application had leave to remain in the UK. You would also qualify for Indefinite Leave to Remain if you had resided in the UK for a continuous period of ten years or if you were the parent of a child who had resided in the UK for at least seven years.

Q: If I am granted Indefinite Leave to Remain will I be entitled to state benefits etc?

If you were granted Indefinite Leave to Remain you are fully entitled to NHS care and state benefits. You also have the general right to permanent residence in the UK, provided you continue living here, although you may potentially be liable for deportation if you commit a serious crime.

Q.What is the current Home Office Policy in cases of medical discharge directly attributable to operational injuries?

SUPPORT TO FOREIGN AND COMMONWEALTH CITIZENS SERVING IN THE BRITISH ARMY AND THEIR FAMILY – CHANGE OF THE HOME OFFICE POLICY IN CASES OF MEDICAL DISCHARGE ATTRIBUTABLE TO OPERATIONAL INJURIES

References:

BBC Radio 4 Report ‘Injured Soldiers face deportation’ 24 Oct 07.
Home Office/Border & Immigration Agency (BIA) press statement and Q & A – 23 Oct 07

1. This letter provides the Chain of Command with an update on the BBC Radio Today Programme broadcast at Reference A. The broadcast reported that injured Commonwealth Citizens serving in the British Army faced deportation if they were discharged with less than 4 years Armed Forces Service. This note is designed to ensure that the Chain Command, non – British soldiers and their families are made aware of the facts. An Army Briefing Note is also being issued to complement this note.

The Facts. The facts are as follows:

a. Army Support. Non – British injured soldiers are provided with the same level of Service medical and welfare support as their British counterparts and are eligible to receive the full Service resettlement package in the event of their medical discharge, in the same way. Additionally the Dangerously III Forwarding medical recommendation, to be moved at public expense from anywhere in the world of the hospital bedside of an injured soldier. Non British are discharged from the Army in exactly the same way as their British counterparts. In addition Non – British soldiers need to regularise their immigration status with the Home Office within 28 days of discharge if they decide to remain in the UK at the end of their exemption from immigration control automatically ceases.

UK Citizenship. Since 22 Nov 06, Commonwealth personnel serving in the Army have been able to apply for British Citizenship whilst still serving. Their service in the UK or abroad counts towards the Home Office eligibility criteria which include 5 years UK residency. Those granted UK Nationality and subsequently medically discharged normally have no reason to be concerned about their ability to remain in the UK. Nepalese citizens serving in the Brigade Gurkhas have separate arrangements and are only able to count their services towards UK citizenship once they have either transferred out of the Brigade of Gurkhas into the wider Army or have obtained settlement in the UK following discharge from the Brigade.

Medical Discharge as a Result of Injuries Sustained on Operations. Where , a non – British member of the Army is medically discharged as a direct result of injury sustained in an operational theatre, the Home Office requirement for them to have completed four years service towards a grant of Indefinite Leave to Remain (ILR) will in future, normally be waived. It means that individuals that qualify under these circumstances may now apply for ILR at the same time. This is a new and most welcome change of policy confirmed at Reference B and follows on from recent discussions between the Army and the Home Office seeking to resolve this situation.

Home Office Re-Consideration of Cases Previously Refused. The Home Office have also confirmed that cases which meet criteria at Para 2c but which were previously refused and which are brought to their attention will be re-considered sympathetically and discretion exercised where appropriate.

Other Forms of Discharge with Less than Four Years Army Service.
The Home Office have confirmed that individuals discharged with less than four years service for reasons other than injuries directly sustained on operations leading to medical discharge may continue to seek discretionary leave to remain in the UK. This is no change to the existing policy. Each case will be examined sensitively on it merits and in the light of the evidence and supporting documentation produced by the applicant. There may be cases, where the circumstances are complicated – for instance, those discharged for inappropriate behaviour, and misconduct or criminal activity and such applications will be investigated thoroughly by the Home Office and then decided on a case – by case basis.

3. Individuals seeking additional information are advised to contact the following:

Serving Army Personnel or Discharged Army Personnel
Seeking Immigration Advice in Connection with Their Medical Discharge.
Armed Forces Team, Borders and Immigration Agency, Telephone 0845 4105996.

Discharged Personnel (veterans) Seeking MoD Support. Service Personnel and Veterans Agency Telephone 0800 169 2277 or from overseas +44 1253 866043

4. Summary. I would be grateful if you would ensure distribution of this information down your respective Chains of Command. The letter also be made available on Agweb (through the Army internet welfare and family page).

K T HAUGH
Col
Col PS4 (A)
Upavon Mil (94344) 5958

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