Indefinite leave to remain, often referred to as “ILR”, 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. It is also sometimes referred to as “permanent residence” or “settled status”. Many people in possession of indefinite leave to remain quite reasonably assume it is “indefinite” in the sense of permanent. It is not quite as permanent, and it can be lost.
One way is by the process of deportation and the other is that it can lapse if a person stays outside the United Kingdom for a certain period of time. This can lead to a person who thought they had “permanent” residence being refused re-entry at the border.
EU and EEA citizens with “Settled Status”
For EU and EEA citizens granted “settled status” under the EU Settlement Scheme, the period they can remain outside the United Kingdom before their status lapses is five years. Swiss citizens and their family members can be outside the UK for four years before their status lapses.
Others with “Indefinite Leave to Remain”
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Biometric Residence Permit, or a stamp or vignette sticker in their passport, indicating that they have ILR, but it is no longer valid.
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.
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 to allow it.
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.
Requirements of the Returning Resident Visa
Applicants must have previously held indefinite leave to remain in the UK and must demonstrate that they left with the intent to return.
They should also be able to demonstrate strong ties to the UK, such as family members, property ownership or a valid job offer awaiting them in the UK.
Absent from the UK for less than 2 years
If a person has been absent from the UK for less than two years, then all they will need to do is demonstrate that they have left the UK with the intent to return and can prove strong ties to the UK, such as family members, property ownership or a valid job offer awaiting them in the UK. A person will be admitted if the Immigration Officer is satisfied with the following concerns:
Absent from the UK for more than 2 years
If a person has been absent from the UK for more than two years, then they will need to provide evidence that they can demonstrate strong ties to the UK, such as family members, property ownership or a valid job offer awaiting them in the UK.
They will also need to provide evidence of how long they had lived in the UK when they left and the reasons for returning, as well as evidence that they are able to maintain themselves financially without relying on public funds.
If successful, the UK Visas and Immigration Services will admit a person as a Returning Resident.
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.
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 a 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
The guidance outlines that those who have lived in the UK for a significant period of time are more likely to be granted readmission than those who have resided in the UK for shorter periods.
However, the length of the 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 an important factor that is considered in the application process. The guidance notes that the longer a person has remained absent from the UK, the less likely they are to be successful in their application.
Extended absence from the UK due to COVID-19 pandemic travel restrictions
The Home Office acknowledges that international travel restrictions during the COVID-19 pandemic may be considered a legitimate reason for absence.
Reasons for leaving
The guidance states that applicants should demonstrate their reasons for leaving the UK were not to avoid immigration control or other legal obligations such as military service.
If an applicant can demonstrate their departure was for valid reasons, this may be considered when assessing the application.
If a person has left voluntarily or under duress, then this should also be taken into consideration.
Reasons for now wishing to return
The applicant must demonstrate they are returning to the UK with a genuine intention of taking up residence in the country and not just visiting or transiting through.
Examples of evidence which can prove an applicant’s intention to take up permanent residence in the UK may include job offers, evidence of employment in the UK prior to departure or evidence of a new home they intend to move into.
Other compelling or compassionate factors
This catch-all category allows each case’s specific circumstances to be considered 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:
Whether if they were to be readmitted, they would continue to live in the UK
In addition to demonstrating genuine intentions for returning to the UK, applicants must also demonstrate that if they were granted entry, then there is a good chance they will take up permanent residence in the country.
This could include having family ties, employment or property in the UK, as well as other social and economic ties which demonstrate an intention to stay.
What if you are ineligible for a Returning Resident Status?
If your application is unsuccessful, then you will have to apply for the appropriate visa category that matches your intention of visiting the UK.
There may be other options available to you. For example, you could apply for a Visitor visa which is valid for up to 6 months and allows you to live in the UK without the right of settlement.
ARIS International Lawyers provides expert advice and assistance to applicants looking to return to the UK on a Returning Resident Visa. If you need help with a Returning Resident Visa application, please contact us on 020 3865 6219 or leave a message on us.