Returning Residents

23rd July 2018

Naila Khan

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I have dealt with a num­ber of cases where a client who has been granted Indef­i­nite Leave to Remain has had to leave the United King­dom for a lengthy period of time. Whether this is a deci­sion due to work, join­ing fam­ily or other com­mit­ments it is always best to be informed about the pol­icy con­cern­ing those res­i­dents return­ing to the UK after a period of time abroad. You should be aware that in cer­tain sit­u­a­tions, you may be denied entry. You may also have to reap­ply for entry clear­ance as a “return­ing resident”.

There are two cat­e­gories under which you may fall depend­ing on the length of time that you have spent out­side of the UK.

Less than 2 years’ absence from the United Kingdom

A per­son who has been absent from the UK for less than 2 years will retain their indef­i­nite leave and does not need to apply for entry clear­ance before resum­ing their res­i­dence in the UK. Bor­der force offi­cers will assess whether a per­son can be admit­ted for entry under the require­ments of para­graph 18.

More than 2 years’ absence

A per­son who has been absent from the UK for more than 2 con­sec­u­tive years, will auto­mat­i­cally lose their indef­i­nite leave as a mat­ter of law. This is set out in para­graph 20 of the Immi­gra­tion Rules and in Arti­cle 13 of the Immi­gra­tion (Leave to Enter and Remain) Order 2000 (LTERO).

The excep­tion to this was Com­mon­wealth cit­i­zens set­tled in the UK when the 1971 Immi­gra­tion Act came into force on 1 Jan­u­ary 1973. Under sec­tion 1(5), they were pro­tected from los­ing their indef­i­nite leave from absences out­side the UK until 1 August 1988 when sec­tion 1(5) was repealed. After this date, any indef­i­nite leave would be lost fol­low­ing an absence of 2 years or more.

A per­son who has been absent for more than 2 years must apply for entry clear­ance as a return­ing res­i­dent and will be assessed by Entry Clear­ance Offi­cers under para­graph 19 of the Rules.

There are some excep­tions which pre­vent a person’s leave from laps­ing. Fur­ther pro­vi­sions were made to the LTERO to ensure that any period spent out­side the UK will not count towards the cal­cu­la­tion of the 2 year period for the fol­low­ing people:

  • Arti­cle 13A — part­ner or child accom­pa­ny­ing a mem­ber of HM Forces over­seas
    • Arti­cle 13B — part­ner or child accom­pa­ny­ing a per­ma­nent mem­ber of the British Coun­cil, Depart­ment for Inter­na­tional Devel­op­ment, Home Office, or For­eign and Com­mon­wealth Office over­seas This is set out in para­graph 19A of the Immi­gra­tion Rules.

What hap­pens if I arrive at the border?

If you have indef­i­nite leave and who has been absent from the UK for less than 2 years can qual­ify for entry to the UK under para­graph 18 of the Rules.

Para­graph 18 of the Immi­gra­tion Rules makes pro­vi­sion for a per­son to be read­mit­ted for set­tle­ment pro­vided that the Bor­der Force offi­cer is sat­is­fied that the per­son con­cerned:

• had indef­i­nite leave to enter or remain in the UK when they last left
• has not been away from the United King­dom for more than 2 years
• did not receive assis­tance from pub­lic funds towards the cost of leav­ing the UK
• now seeks admis­sion for the pur­pose of settlement

How can you prove that you have Indef­i­nite leave to enter or remain

Evi­dence of your set­tled sta­tus in the UK is nor­mally found in your  pass­port, on an immi­gra­tion sta­tus doc­u­ment or a bio­met­ric res­i­dence per­mit (BRP). These doc­u­ments may include the following:

  • indef­i­nite leave to enter (ILE) endorse­ment or BRP
    • indef­i­nite leave to remain (ILR) endorse­ment or BRP
    • no time limit endorse­ment or BRP • return­ing res­i­dent visas
    • open date stamps in pass­port after ILE/ILR has been granted If such evi­dence can­not be pro­vided, a person’s set­tled sta­tus may still be con­firmed through:
    • records on data­bases, such as cen­tral ref­er­ence sys­tem (CRS) or case infor­ma­tion data­base (CID), or paper files that show indef­i­nite leave has been granted
    • other proof the appli­cant was set­tled in the UK on or before 1 Jan­u­ary 1973 and this sta­tus has not been lost or revoked A per­son can apply to have their set­tled sta­tus con­firmed by mak­ing a No Time Limit (NTL) application.

Absence of less than 2 years

If you have been absent from the UK for less than 2 con­tin­u­ous years, you will retain your indef­i­nite leave. You can prove your absences from the UK through entry and (old) embarka­tion stamps (endorsed by Immi­gra­tion Officers).

Seek­ing entry for the pur­poses of settlement

In line with para­graph 18, you must show that they are seek­ing entry for the pur­poses of set­tle­ment. Whilst in most cases you may be return­ing to set­tle at the point of entry, there may be other cir­cum­stances where a per­son is in work or study for long peri­ods over­seas, but still intends to ulti­mately set­tle in the UK on com­ple­tion of the employment/study. This will not dis­qual­ify you from admis­sion as a return­ing res­i­dent, provided:

  • you are nor­mally res­i­dent in the UK (for exam­ple, a per­son has prop­erty or fam­ily or other inter­ests in the UK which are being closely main­tained through reg­u­lar con­tact)
    • at the time of your entry, you con­sider the UK to be your per­ma­nent home
    • you have not been away from the UK for more than 2 years and intend to return to the UK for set­tle­ment in the future

Fac­tors which will be con­sid­ered when assess­ing whether you can be reen­ter the United King­dom as a return­ing resident

You may need to show the strength of ties in the UK includ­ing the nature of those ties and the extent to which those ties have been main­tained dur­ing the applicant’s absences. It will also be con­sid­ered the length of the orig­i­nal res­i­dence (before you left the UK), the length of time that you have been out­side of the UK, the cir­cum­stances in which you left the UK and rea­sons for doing so; the rea­sons you are now wish­ing to return to the UK and whether if you were to re-enter you would con­tinue liv­ing in the UK. Other com­pas­sion­ate and com­pelling fac­tors can also be presented.

In what sit­u­a­tion can you not qual­ify as a return­ing resident?

The fol­low­ing do not qual­ify as return­ing residents:

  • a per­son whose pre­vi­ous stay was sub­ject to a time limit (for exam­ple a per­son had lim­ited leave to enter or remain)
    • a per­son who was exempt from con­trol under sec­tion 8 of the Immi­gra­tion Act 1971 at the end of their pre­vi­ous stay (for exam­ple sea­man, air­crew and other spe­cial cases)
    • a per­son whose depar­ture from the UK was financed from pub­lic funds under either sec­tion 5(6) or sec­tion 29 of the act (they made a vol­un­tary depar­ture with pay­ments)
    • a per­son to whom the gen­eral grounds of refusal set out in para­graph 320 of HC 395 apply

Apply­ing for Entry Clearance

Where you are absent from the UK for more than 2 years, your indef­i­nite leave will auto­mat­i­cally lapse. In line with para­graph 19 of the Rules, you may nev­er­the­less be admit­ted as a return­ing res­i­dent if you can demon­strate strong ties to the UK. Any appli­ca­tions for read­mis­sion fol­low­ing a 2 year absence, must be made at a UK visa appli­ca­tion centre.

Would you like fur­ther advice?

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Naila Khan is an expe­ri­enced Senior Immi­gra­tion Advo­cate. She reg­u­larly advises clients on com­plex immi­gra­tion issues.

If you would like immi­gra­tion advice please con­tact us!

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