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Briefing: the rules on returning residents with indefinite leave to remain (ILR)

Briefing: the rules on returning residents with indefinite leave to remain (ILR)

Indefinite leave to remain in the UK is a type of immigration status that means a person can live and work in the UK for as long as they like, with no further need to apply for a visa extension. Occasionally, though, people with ILR are refused entry at the border.

If a person has been granted indefinite leave to remain how, you may ask, can they be refused entry to the UK? Surely indefinite means, well, indefinite.

Unfortunately, in the world of UK immigration law, it is never that simple. 

ILR automatically lapses after two years absence from the UK

Normally, where a person with leave, whether limited or indefinite, travels outside 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 holder may still have a Biometric Residence Permit, or a stamp or vignette sticker in their passport, which indicates that they have ILR, but in truth it is no longer valid.

This seems to be what happened in the case of Irene Clennell, which attracted widespread media attention in early 2017. 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. She entered the UK with a visit visa and was subsequently removed to Singapore by the Home Office on the basis that she was in the UK unlawfully.

Returning to the UK for even a day would stop the loss of ILR, 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 on the tin; 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. Perhaps in reaction to the media furore caused by the Irene Clennell case, in June 2018 the government introduced changes to the rules:

…to clarify the distinction between those who have been absent from the UK for less than 2 years and so retain their indefinite leave status, from those whose indefinite leave has lapsed due to an absence of more than 2 years. Those in the latter category must now apply for entry clearance and demonstrate they have strong ties to the UK in order to be issued indefinite leave to enter.

(Explanatory Memorandum to statement of changes HC1154, 15 June 2018)

The relevant rules now read:

18. A person may resume their residence in the UK 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.

18A. Those who qualify to resume their residence in accordance with paragraph 18 do not need a visa to enter the UK.

19. A person who does not benefit from the preceding paragraph by reason only of having been absent from the United Kingdom for more than two consecutive years, must have applied for, and been granted indefinite leave to enter by way of entry clearance if, he can demonstrate he has strong ties to the United Kingdom and intends to make the United Kingdom his permanent home.

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 certain diplomatic staff: they will always be readmitted as returning residents.

A person readmitted as a returning resident will have their ILR restored.

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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.

Paragraph 19 previously referred to admission of a person: “as a returning resident if, for example, he has lived here [the UK] for most of his life”.  This seemed to steer immigration officials against readmitting those who had not been resident “most of their life.” However, as noted by the Scottish Court of Session back in 2013 in OWA v Secretary of State for the Home Department [2013] CSOH 52, this was always just an example and it was possible to meet the requirements of paragraph 19 even where the applicant had not spent most of his or her life in the UK, relying instead on strong ties to the UK. 

The rules have now been changed to reflect this, referring to “strong ties” and an intention to make the UK your “permanent home” rather than focusing on whether the person has spent most of their life in the UK.

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

The Home Office’s policy on Returning residents provides guidance to immigration officials on how to exercise discretion under paragraph 19 of the Immigration Rules where a person whose ILR has lapsed makes an application as a returning resident.

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 the “Factors for consideration” section at pages 10 to 12. As the title suggests this outlines the factors an immigration official should consider when deciding whether to grant a returning resident application from a person who has been outside the UK for over 2 years. 

Strength of ties to the UK

The guidance indicates that the nature of ties to the UK (i.e. whether they are family, property, or business ties) and the extent to which those ties have been maintained during the applicant’s absence should be considered.

The strength of family connection is given priority over whether the applicant has nuclear family in the UK:

The more immediate the family members are, for example parents, spouse, partner, children or grandchildren, the greater the strength those ties are likely to have. However, relationships with wider family members, such as cousins or nieces and nephews, may also be taken into account if those ties have been closely maintained.

The guidance also notes that contact with family does not need to be in person and that: “Ties on the basis of property or business interests alone are unlikely to demonstrate strong ties to the UK, but can be used in conjunction with other factors to satisfy this.”

Length of original residence in the UK

Generally, the longer the period of original residence, the more likely it is that the applicant will have developed strong ties to the UK and can be admitted as a returning resident.

But length of original residence must be considered together with all other relevant factors. A decision maker must not refuse an application solely based on a short period of original residence, if the other evidence points to the applicant having strong ties to the UK.

Length of time outside the UK

This is described as an “important factor” which must be “assessed against all other factors, including the time spent in the UK before they left.” The previous version of this guidance (Returning Residents: SET 09) indicated that:

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.

This sentence is not included in the new guidance. However, as a matter of common sense, presumably it still holds true. The longer a person has been away from the UK the more difficult it will be to argue that “strong ties” have been maintained.

Reasons for leaving and wishing to return

The following reasons for going abroad are specifically mentioned:

  • to access health treatment
  • to care for family
  • for employment/self-employment
  • for study
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The guidance does not go as far as the suggestion that time spent abroad for such reasons will lead to an application as a returning resident being granted. Ultimately, the reasons for leaving and returning are simply other factors to take in to account. But it stands to reason that a temporary absence for a specific reason — particularly a compassionate and compelling reason such as caring for a close relative diagnosed with terminal illness, or for reasons beyond the applicant’s control such as being posted aboard by an employer — would support the contention that the applicant has maintained strong ties to the UK and intends to live here permanently. 

Other compelling or compassionate factors

This catch-all category allows the specific circumstances of each case to be taken into account when considering whether a person can meet the requirements of paragraph 19. Suggestions of factors which may fall into this category, provided within the guidance, include:

  • service overseas with a particular 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 guidance is relatively generous in approach and goes far beyond the  terms of paragraph 19 of the rules.

What happens in cases of refusal or limited readmission?

A possible problem is that immigration officials may not know about the guidance: 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.

Applying for returning resident visa before entry

From 6 July 2018, a person who has been outside the UK for more than two years must apply for a visa to re-enter the UK before travelling. This is an application for a returning residents visa and (at the time of writing) costs £516. This will allow all the issues to be resolved before the person travels.

If the application is refused, the person can seek an administrative review of the decision. The possibility of an appeal to the immigration tribunal is not mentioned in the Home Office’s guidance. But if the decision to refuse entry clearance as a returning resident can, in the particular circumstances of a specific case, be fairly characterised as a refusal of a human rights claim, there would be a right of appeal (see Tribunal finally asks: what is a human rights appeal anyway for further information on rights of appeal) 

Applying after entry

In real life, most people will not realise that they have a problem until reaching the UK border.  Previously, when a situation such as this occurred, an immigration official would need to make a snap decision on what to do. Often, six months leave to enter was granted,  allowing the person to enter the UK and try to resolve their position from within the UK.   

Following the introduction of the requirement to apply for entry clearance prior to travel in July 2018, it is no longer possible for decisions under paragraph 19 to be made at the UK border. Now, if a person who has been absent from the UK for over two years travels to the UK without making a visa application, they will be refused entry and returned to their country of origin.

There will be many people who, having been granted a status described as “indefinite”, remain understandably unaware of the requirement to apply for entry clearance as a returning resident if absent from over two years. Being turned away at the border will no doubt come as an unwelcome surprise.

This post was originally published in February 2017 and has been updated to take account of changes to the law since then. It is correct as of the new date of publication. Thanks to Iain Halliday of McGill & Co for his assistance with the update.

 

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