One one level the case of Irene Clennell is shocking. She was previously settled in the UK with Indefinite Leave to Remain (ILR) and has recently been the main carer for her sick British husband, John, and she has two British sons and a British granddaughter. Press reports differ on the background, with some reports that she was resident in the UK for 30 years and other reports suggesting a much shorter period. Nevertheless, the Home Office have taken the view that she is unlawfully resident in the UK and she was detained at an immigration detention centre and then removed to Singapore.
On another level, Clennell’s case is entirely unsurprising. Just last week the Supreme Court gave judgment in a case affecting thousands of British citizens married to foreign spouses and held that many of them will have to live abroad or live apart. UK immigration law is increasingly harsh and very ordinary people with whom many would have considerable sympathy are affected by restrictions intended to meet the net migration target.
Rather self evidently, it is not possible to reduce immigration without stopping migrants from coming to the UK.
Returning to Irene Clennell, if she held Indefinite Leave to Remain previously, you may ask, how can she be unlawfully resident now? And how can it be fair and reasonable to expel her given her circumstances? Here I can explain the former. The latter is simply the reality of modern UK immigration policy.
ILR automatically lapses after two years absence from the UK
Normally, where a person with leave, whether limited or indefinite, leaves the UK, that person can re-enter the UK as long as the leave has not expired. The law covering this type of re-entry is the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161).
However, Article 13(4)(a) of the Order states as follows:
where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse…
This means that whenever a person with ILR remains outside the UK for more than two years, that person’s ILR automatically lapses as a matter of law. The stamp or vignette sticker may remain the passport, but in truth it is no longer valid.
This seems to be what happened to Irene Clennell. She was granted ILR many years ago. Her parents remained abroad. She went abroad to look after them and ended up staying outside the UK for more than two years. She lost her UK status.
Returning to the UK for even a day would stop this occurring, but you would have to know about the law in the first place in order to do that. Many people in possession of Indefinite Leave to Remain assume it is what it says it is; it isn’t.
Immigration Rules on returning residents
It is possible for a person who previously had Indefinite Leave to Remain to be readmitted to the UK and for their ILR to be restored. However, there is no right to readmission and it is up to an individual immigration official whether to allow it.
The Immigration Rules have two paragraphs that deal with former residents of the UK who are returning to live long term:
18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:
(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement.
19. A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life.
The rules go on to make an exception for migrants who are the spouse or partner of members of the armed forces serving overseas or certan diplomatic staff; they will always be readmitted as returning residents.
A person readmitted as a returning resident would usually have their ILR restored, although the rules do not spell this out explicitly.
It is paragraph 19 which is crucial as this paragraph allows an immigration official to readmit a person who has been absent for more than two years. A lawyer would say that this rule “imparts a discretion” because it leaves the decision up to the individual immigration official, who must exercise his or her discretion.
However, as anyone with direct experience of immigration officials will know, relying on an immigration official to be nice to you is not a strong position to be in. And paragraph 19 seems to steer immigration officials against readmitting those who have not been resident “most of their life.”
As well as the rules themselves, there is also guidance published by the Home Office about how discretion should be exercised.
Guidance on readmission of returning residents
There are (or at least were) two sources of guidance for immigration officials on how to exercise discretion under paragraph 19 of the Immigration Rules where a person whose ILR has lapsed presents themselves for entry to the UK.
The first is document Returning residents: SET 09. This explains the rules in reasonably plain language. The important section for those who have been outside the UK for more than two years is section 9.5. This outlines the exception for spouses and partners of members of the armed forces and diplomatic staff and then goes on:
In other cases the ECO should consider the following factors in assessing whether strong ties exist:
- the length of the original residence in the UK
- the time the applicant has been outside the UK
- the reason for the delay beyond the 2 years – was it through their own wish or no fault of their own (for example, having to care for a sick or elderly relative)?
- the reasons for leaving the UK and for now wishing to return
- the nature of the family ties in the UK
- how close are they and to what extent have they been maintained during the absence
- do they have a home in the UK and, if admitted, would they remain and live there?
The longer a person has remained outside the UK (over 2 years), the more difficult it will be for them to qualify for admission under this provision. The longer the previous residence in the UK, the stronger the case for consideration, provided that there had not been a break in residence which extended over a number of years.
Other more specific circumstances which would support an application are:
- travel and service overseas with a particular employer before return to the UK with the employer
- service abroad for the UK Government, or as a dependant of a member of HM Forces or as an employee of a quasi-governmental body, a British company or a United Nations organisation
- employment abroad in the public service of a country that has good relations with the UK, by a person who could not reasonably be expected to settle in that country permanently
- a prolonged period of study abroad by a person who wishes to rejoin the family in UK on completion of studies
- prolonged medical treatment abroad of a kind not available in the UK
This is relatively generous in approach and seems to go far beyond the “most of life” example given in paragraph 19 of the rules.
The policy specifically mentions the possibility of going abroad to care for a sick relative, the length of original residence in the UK, family links to the UK and whether the person has a home in the UK. All of this applies in the Clennell case.
The second policy document has now been retired but was very similar in content. This was Annex K to Chapter 1, Section 3 of the Immigration Directorate Instructions.
So why on earth was Irene Clennell not admitted as a returning resident if she had lived in the UK for such a long period with her husband? The policy clearly allows and even encourages an immigration official to readmit someone in that position.
What happens in cases of refusal or limited readmission?
One problem is that immigration officials may not know about the guidance which accompanies paragraph 19 of the Immigration Rules; it is universally known and understood by immigration officials that leave lapses after two years of absence, but it is less widely understood that such people can be readmitted and should be in certain circumstances.
After all, the message from central Government is that the net migration target remains in place and action must be taken to meet it. That self evidently means refusing entry to as many people as possible.
Apply for returning resident visa before entry
In the Home Office’s ideal world, a person who has been outside the UK for more than two years will apply for a visa to re-enter the UK before travelling. This is an application for a returning residents visa and costs £405. This will allow all the issues to be resolved before the person travels. If the application is refused, the person can pursue an appeal from abroad.
Waiting times for appeals are currently around 72 weeks.
Applying after entry
In real life, someone in the position of Irene Clennell will not realise he or she has a problem until he or she reaches the UK border. At that point, an immigration official will need to make a snap decision on what to do. Often, six months leave to enter will be granted, which will at least allow the person to enter the UK and try to resolve their position from within the UK (see ECB13: list of endorsements for entry clearance).
However, it is not clear what such a person can or should do to resolve their situation once they are within the UK. I would suggest applying for ILR using form SET(O), but I am not completely sure that this is the right way forward. The cost is a huge £1,875.
I do not know on what basis Irene Clennell was readmitted to the UK and I do not know what steps, if any, she took to sort her position out after entry. I do not know the full background to the case. If it is true that she was resident in the UK for a substantial period of time with her family, she may well have a good case for admission as a returning resident even if she had been outside the UK for over two years. If not, she would have to qualify under the UK’s very tough foreign spouse rules, which require her husband to be earning at least £18,600 for at least six months. Given his care needs that may be impossible, in which case she will be stuck abroad and her husband will either have to live apart from her or join her in Singapore. Assuming that Singaporean immigration rules are more generous than ours, that is, and that he qualifies for entry there.