After five years on a spouse visa, settlement can feel like an easy application. In practice, ILR applications under Appendix FM are refused more often than applicants expect, and rarely for the reasons they anticipated when starting the route. This article sets out three legal issues that regularly derail otherwise strong applications, drawn from what our team at A Y & J Solicitors see in practice at the ILR stage.

3 Legal Risks Worth Knowing Before You Apply for ILR

The following three issues arise at the settlement stage and are difficult to remedy once a refusal is issued. Identifying them before the SET(M) application is filed is what makes the difference.

Risk 1: A Change in the Rules Around Criminal Convictions

If you have a criminal conviction, even one disclosed when you first applied for your spouse visa and accepted at that point, a rule change introduced in November 2025 may mean your ILR application is refused where it would previously have succeeded.

The Home Office changed how criminal convictions are assessed for family visa applications, effective 11 November 2025. The new framework is stricter and, significantly, applies retroactively: it governs ILR applications filed after that date, including those from people already years into their five-year route when the change happened. There was no transitional protection for people already in the system.

How the rules changed by conviction type:

Prison sentence of 12 months or more

  • Before November 2025: Refusal only if the conviction was recent enough.
  • From November 2025: Automatic refusal — no exceptions, no time limit.

Prison sentence under 12 months

  • Before November 2025: Refusal only within 5 years of the conviction.
  • From November 2025: May be refused at any time.

Non-custodial conviction

  • Before November 2025: Generally accepted with disclosure.
  • From November 2025: May be refused at any time.

What this means in practice

Someone who is four years into the five-year route, who disclosed a 13-month sentence from 20 years ago at their visa application and was accepted, now faces automatic refusal at the ILR stage.

Article 8 and the limits of a human rights argument

If refusing your application would breach your right to family life under the Human Rights Act, the Home Office may still grant you permission to stay. That is not settlement. It is temporary leave, and it requires a separate legal argument that needs to be built before the ILR application is filed.

Who should get advice before filing

Anyone in the five-year route with a historic conviction, regardless of how old, how minor, or how openly it was disclosed, should have their position assessed before filing.

Risk 2: Documents That Look Complete But Fail the Legal Standard

The Home Office follows a specific evidence schedule when assessing ILR applications. That schedule sets out not just which documents are required, but, in many cases, the exact format, the period they must cover, and how they must be presented.

The caseworker reviewing your application is not required to flag missing documentation before deciding. A genuinely strong application (five years of a real relationship, stable income, full compliance) can be refused purely because the file does not match the required standard. The gaps we see most often:

Payroll records

A missing payslip or two, whether through a lost document, a change of employer, or a payroll format that does not match what is required, results in the income requirement being assessed as unmet, even where the full-year earnings reach £29,000.

Bank statements

Statements must cover a specific period ending immediately before the application. Statements that span a longer period but skip a required month, or that show transfers in without the required account details, are treated as incomplete.

Relationship evidence across all five years

The Home Office requires evidence that the relationship has been real and ongoing throughout the qualifying period, not only at the time of filing. A file that is thorough on recent years but thin on years one and two is incomplete, regardless of how strong the current documentation is.

The right way to prepare is a structured review of the evidence file against the specific documentation requirements, not a general sense that everything looks in order.

Risk 3: What Continuous Residence Actually Means

There is a general absence threshold of no more than 180 days outside the UK in any 12-month period, but this is not the whole picture. The Home Office will also look at whether your overall five-year record — including your financial records, cohabitation evidence, and travel history — tells the story of a genuine relationship based in the UK. We see three specific issues arise regularly in this area.

Extended absences: timing of documentation matters

Time spent abroad for serious reasons, including illness, a family bereavement, or caring for a relative, is accepted. The issue is when the supporting records were produced. Medical letters, travel documents, and evidence of where your partner was during that period carry considerably more weight when they were created at the time than when they are gathered together years later to explain an absence.

Financial records that contradict the stated history

If your bank statements, utility bills, and council tax records show a pattern inconsistent with where you say you were living, that inconsistency becomes a basis for questioning the genuineness of the relationship throughout the route, not just during the period in question.

Thin evidence for the early years of the route

Evidence of joint residence needs to be distributed across the full five years. A file that is comprehensive for years four and five but sparse for years one and two gives the caseworker grounds to raise concerns about the earlier period, even if the relationship itself is not in doubt.

Before You Apply

Each of these spouse visa ILR refusal risks is addressable before the application is submitted and largely irremediable afterwards. Once a decision is issued, the options narrow significantly: administrative review corrects process errors, not missing evidence, and does not provide a route for reconsidering a refusal on different legal grounds.

A Y & J Solicitors advises on settlement applications across the full range of Appendix FM complexity, including cases where historic convictions, evidential gaps, or residence questions require analysis before the application is submitted. Contact us for a free initial consultation.