Losing your Indefinite Leave to Remain
It is natural to assume that once you have secured Indefinite Leave to Remain your permission to live in the UK is indefinite in nature and therefore cannot be lost or cancelled by Home Office officials. However, Immigration solicitors will tell you that Immigration Rules provide for the loss of Indefinite Leave to Remain. In this article, we look into the question, 'Can you lose your Indefinite Leave to Remain in the UK ?'
Indefinite Leave to Remain solicitors
OTS Solicitors are specialist Immigration solicitors and experts in Indefinite Leave to Remain applications and loss of Indefinite Leave to Remain.
OTS Solicitors are recommended for Immigration law in the two leading law directories, The Legal 500 and Chambers Guide to the Legal Profession.
For advice on applying for Indefinite Leave to Remain and guidance on your best options if you have lost your Indefinite Leave to Remain and need a returning residents visa or reinstatement of your Indefinite Leave to Remain call OTS Solicitors on 0203 959 9123 or complete our online enquiry form.
Losing Indefinite Leave to Remain
The Home Office has the power to stop your Indefinite Leave to Remain. Immigration solicitors think that it is important that you know how you can lose your Indefinite Leave to Remain status so you can avoid this happening to you or to a family member.
What is Indefinite Leave to Remain
You need to know what Indefinite Leave to Remain is before you can look at how it can be lost or cancelled. If you hold Indefinite Leave to Remain status then you:
Have permission to live in the UK. Your permission is not time limited; and
Can work in the UK free of Immigration control and without needing an employer to sponsor your Employment; and
Can study in the UK; and
Can leave the UK and return without the need for visas, subject to the detailed Immigration Rules.
Loss of Indefinite Leave to Remain
The Immigration Rules say that Indefinite Leave to Remain is lost or expires if you leave the UK, Ireland or the Isle of Man, Guernsey or Jersey and stay away for over two years. After two years continuous absence you are treated as if you are not settled in the UK.
You may think that the two year rule does not apply to your Indefinite Leave to Remain status because you were told your leave was ‘indefinite’ but the two year absence rule is applicable to all holders of Indefinite Leave to Remain. That means your Indefinite Leave to Remain will automatically end if you spend over two years out of the UK.
Exemptions to the two year rule
Immigration solicitors will tell you that there are a limited number of exemptions to the Indefinite Leave to Remain two year rule, such as if you are a dependent relative of an army officer, British Council employee or Home Office official who is posted overseas.
Returning to the UK within two years
If you have Indefinite Leave to Remain and return to the UK within two years of absence to avoid loss of your Indefinite Leave to Remain but you only stay in the UK for a very short period then the Home Office could still question the continuation of your Indefinite Leave to Remain. That is because your Immigration status is based on settlement in the UK rather than a short physical presence in the country.
Calculating your absence from the UK
If you have been absent from the UK for any substantial length of time it is vital that you check the amount of time you have spent away from the UK before trying to re-enter the UK. That is because if you try to re-enter the UK after your Indefinite Leave to Remain status has expired automatically (after an absence of over two years) and you do not have a returning resident visa or other entry clearance, you will be refused entry to the UK.
The best advice that Immigration solicitors can give is not to be lulled into thinking that you are OK because there is no clear expiry date on your Immigration paperwork or documents relating to your Indefinite Leave to Remain.
What to do if you lose Indefinite Leave to Remain
If you lose your Indefinite Leave to Remain status because you are absent from the UK for more than two years and you want to return to the UK then you need to apply for a returning resident visa or entry clearance. Once you have secured returning resident status then your Indefinite Leave to Remain will be reinstated.
Applying for a returning resident visa
If you need a returning resident visa the application has to be made before you travel back to the UK.
In order to apply for a returning resident visa you have to:
Demonstrate that you held Indefinite Leave to Remain when you left the UK over two years ago; and
Show that you plan to live in the UK as your permanent place of residence;
Show that you left the UK voluntarily and that you were not deported.
Home Office caseworkers have to follow guidance on how to exercise discretion on whether to grant a returning resident visa.
Home Office guidance on returning resident visas
When applying for a returning resident visa, after an absence of over two years from the UK, you need to show Home Office officials that:
You have sufficiently strong ties to the UK. Strong ties can include evidence of family who live in the UK or a partner or property ownership;
The reason for the length of absence. If you have been away for well in excess of two years it can be harder to secure a returning resident visa. That is why it is best to give a full explanation for your absence, such as studying for an overseas qualification, caring for a family member or gaining work experience in an overseas business;
Length of your original UK residence. If you lived in the UK for a long period before your period of absence from the UK then this should be emphasised in your returning resident visa application as it strengthens your visa application and your claim that you have strong ties to the UK.
Refusal of a returning resident visa
If your application for a returning resident visa is refused then it is best to take legal advice on your options. For example you could look at whether your best route to return to the UK is by way of application for administrative review of the decision to refuse you a returning resident visa or alternatively whether a fresh visa application, such as an Investor Visa or Tier 2 General visa, is the better means of securing your entry to the UK.
Revocation of Indefinite Leave to Remain
As well as the two year rule, you will automatically lose your Indefinite Leave to Remain if:
You are deported from the UK; or
If you are liable to be deported from the UK but, for legal reasons the deportation has not taken place; or
You obtained Indefinite Leave to Remain by deception; or
You were granted Indefinite Leave to Remain status because you had refugee status and you are no longer classified as a refugee.
If you are at risk of having your Indefinite Leave to Remain status revoked it is vital to take urgent legal advice on your best options to see if the decision is capable of challenge.
Indefinite Leave to Remain solicitors
OTS Solicitors are specialist in Immigration law and visa and settlement applications. If you need help with an Indefinite Leave to Remain application or are worried that your Indefinite Leave to Remain may be lost then call us on 0203 959 9123 or complete our online enquiry form.
London based OTS Solicitors are recommended for Immigration law in the two leading law directories, The Legal 500 and Chambers Guide to the Legal Profession. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.