Will the New ILR Rule Affect Your Visa? Here’s What You Need to Know

 

Department of Immigration – Legal Analysis Section

Legal Research & Policy Division

Date of Publication: October 2025

 

Introductory Note

This publication is part of the Department of Immigration’s Legal Analysis Series.

It aims to provide clear, evidence-based explanations of key legal and policy developments in UK immigration law.

It is designed for informational and educational purposes only and does not constitute legal advice.

For personalised legal guidance, readers should consult qualified solicitors from the Department of Immigration’s legal team.

 

Legitimate Expectation and the Extension of Residence Requirements for Indefinite Leave to Remain in UK Immigration Law

Abstract

The doctrine of Legitimate Expectation is a cornerstone of administrative fairness in UK public law. It prevents the government from altering established rules or policies that individuals have reasonably relied upon, unless there is an overriding public interest and fair transitional arrangements.

In 2025, the UK Government proposed extending the residence requirement for Indefinite Leave to Remain (ILR) from five years to ten years.

This article examines whether such a reform could lawfully affect existing visa holders and concludes that retrospective application would violate both the principles of Legitimate Expectation and Non-Retroactivity, making the change challengeable through Judicial Review.

 

Introduction

The UK immigration system is one of the most intricate in Europe, balancing the need for effective migration control with the requirement of fairness and respect for the Rule of Law.

In May 2025, the UK Government’s White Paper on Restoring Control over the Immigration System suggested increasing the ILR qualifying period from five to ten years.

This proposal has caused significant concern among Skilled Worker Visa holders, many of whom entered the UK with the understanding that five years of continuous lawful residence would make them eligible for settlement.

The key legal question is: Can the government apply the new ten-year requirement to individuals who began their residence under the previous five-year rule?

 

 

The Doctrine of Legitimate Expectation

The principle of Legitimate Expectation was first recognised in

Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1985] AC 374.

The rule holds that if a public body, through its promises, consistent practices, or existing policies, creates a legitimate expectation in individuals, it cannot frustrate that expectation without proper justification.

Further cases such as

R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 and

R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744

confirmed that legitimate expectation forms part of Procedural Fairness in administrative law and protects individuals against abrupt, unfair policy reversals.

 

 

The 2008 Precedent: From Four Years to Five Years

In 2008, the UK Government increased the ILR qualifying period from four years to five years through the

Statement of Changes in Immigration Rules HC 321.

This decision affected many migrants under the Highly Skilled Migrant Programme (HSMP) who were close to completing their four-year residence.

As a result, multiple challenges were brought before the High Court, the most notable being:

R (on the application of HSMP Forum Ltd) v Secretary of State for the Home Department [2008] EWHC 664 (Admin).

The Court ruled that individuals who entered the UK under the four-year policy had developed a Legitimate Expectation that the same rule would apply to them.

It stated:

“The Government cannot alter immigration policy in a way that defeats the legitimate expectations of those who have relied upon it, unless justified by an overriding public interest.”

Following this ruling, the Home Office was compelled to introduce Transitional Arrangements, allowing affected migrants to apply for ILR under the old four-year rule.

 

 

The Principle of Non-Retroactivity

Alongside legitimate expectation, the principle of Non-Retroactivity safeguards legal certainty by ensuring that new laws or policies do not retroactively alter existing rights.

This was reaffirmed in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, where the Court of Appeal held:

“New policies should not have retrospective effect where they adversely impact those who have lawfully relied upon the previous framework.”

Together, these doctrines form the foundation of Legal Certainty and Administrative Fairness within UK immigration law.

 

 

Implications for the 2025–2027 ILR Reform

Applying the proposed ten-year ILR requirement to individuals who began residence under the five-year system would mirror the same legal issues seen in 2008.Therefore, unless clear Transitional Arrangements are included, implementing the new ILR rule for existing visa holders could be deemed Procedurally Unfair and legally challengeable.

Legal principle                               judicial basis                                            impact on 2025 reform

Legitimate expectation              Reliance on existing five -year ILR rule    Sudden change breaches

Reliance and fairness

 

Non retroactivity                          Law can not operate backwards                  Applying new rule to existing

Visa holders are unlawful

 

Procedural fairness                      Obligation to provide                                  The government must establish

Transitional provisions                      fair transition measures

 

 

Judicial Review and Remedies

If the Home Office enforces the ten-year requirement on those who entered under the five-year system, affected individuals may seek Judicial Review before the High Court.

The grounds would include:

1. Breach of Legitimate Expectation, due to reliance on the previous rule.
2. Violation of non-retroactivity, through retroactive enforcement.
3. Disproportionality, contrary to fairness and human rights principles (Article 8 ECHR).

Judicial precedents — particularly HSMP Forum (2008) — suggest that courts would likely favour claimants in such cases.

 

Conclusion

The combined principles of Legitimate Expectation and Non-Retroactivity safeguard the predictability, trust, and fairness of the UK immigration system.

Any reform that undermines these values risks violating fundamental administrative principles and eroding public confidence in the immigration framework.

Accordingly, if the proposed ILR extension from five to ten years is applied retroactively, it would almost certainly be subject to successful Judicial Review before the High Court.

References

• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
• R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213
• R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363
• R (HSMP Forum Ltd) v Secretary of State for the Home Department [2008] EWHC 664 (Admin)
• R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33
• Home Office White Paper: Restoring Control over the Immigration System (May 2025)
• Migration Observatory, “Changes to Settlement: What Do They Mean?” (2025)

 

 

Legal Disclaimer

This article is provided for informational and educational purposes only.

It does not constitute legal advice and should not be relied upon as such.

For individual legal consultation or representation, please contact the Department of Immigration’s qualified solicitors through the official communication channels.