The UK Immigration Rules for Returning Residents with Indefinite Leave to Remain

Posted onSeptember 29, 2023

In this blog, our immigration solicitors look at the latest immigration rules for returning residents and the returning resident visa.

UK Online and London-Based Immigration Solicitors and Indefinite Leave to Remain Lawyers

For indefinite leave to remain and immigration law advice call London-based OTS Solicitors on 0203 959 9123 or contact us online.

Indefinite leave to remain and time spent outside the UK

If you have indefinite leave to remain you need to know that if you are absent from the UK for more than 2 years you may be classed as a returning resident and require a visa under the immigration rules to return to the UK.

Loss of indefinite leave to remain

The immigration rules say that if you are absent from the UK for more than 2 years then you automatically lose your indefinite leave status. The rule can come as a shock to some who have been working overseas or spending extended time with their overseas-based family.

There are some exceptions to the rule. For example, indefinite leave to remain lawyers say that a partner of a member of the armed forces is exempt from the 2-year rule if they are absent from the UK because they are accompanying a member of HM Forces overseas.

Entering the UK with indefinite leave to remain when you have been absent for less than 2 years

An absence of less than 2 years means you do not need a returning resident visa but border officials may ask questions so it is best to be prepared.

The Home Office guidance says that border officials need to be satisfied that

You had indefinite leave to enter or remain in the UK when you left the UK
You have not been absent from the UK for 2 or more years
You intend to stay in the UK. In other words, it is not just a quick trip to the UK to maintain your indefinite leave to remain status, or if it is a short UK trip, you intend to settle in the UK eventually (for example, at the end of your overseas university education or once you have completed an overseas work assignment) as you view the UK as your permanent home
You were not given help from public funds towards the cost of leaving the UK

How to evidence that you have indefinite leave to remain

However long you have been absent from the UK it is important that you have evidence to show that you hold indefinite leave to remain status when re-entering the UK. Evidence of indefinite leave to remain is usually found in:

A passport
Immigration status document
Biometric residence permit (BRP)

If you are not sure if your indefinite leave to remain status is noted in any of these documents it is best to check.

The Home Office guidance states that a visitor visa is not appropriate for someone who has indefinite leave to remain and has been absent from the UK for less than 2 years. The correct approach is for border officials to endorse your passport with an open date stamp. This does not grant a form of leave but is evidence of your arrival in the UK.

A border official can conclude that a person with indefinite leave to remain who has been absent for less than 2 years is not returning to settle in the UK and has no intention to do so in the future. The Home Office guidance says that the indefinite leave to remain should be cancelled with the person entitled to challenge the decision. Indefinite leave to remain lawyers say it is important to understand the indefinite leave to remain absence rules when you first obtain ILR and if you plan to be absent from the UK for extended periods.

Applications for returning resident visas

You will need to apply for a returning resident visa if you have indefinite leave to remain but have been absent from the UK for more than 2 years. That is because indefinite leave to remain lapses automatically after 2 years of absence.

The Home Office has recently changed the immigration rules as previously you could not apply for a returning resident visa if you had entered the UK on a visitor visa whilst holding or having previously held indefinite leave to remain. You can now do so. However, you will not qualify as a returning resident if your previous stay was subject to a time limit (unless that previous stay was as a visitor) or if you had temporary permission in another route between the date your ILR status lapsed and your visitor leave was granted. You also will not qualify as a returning resident if the general grounds for refusal in the immigration rules apply to you.

Eligibility criteria as a returning resident

If you have been absent from the UK for more than 2 years, to qualify for a returning resident visa you need to be able to show strong ties to the UK.

When considering your application Home Office officials will look at:

The strength of your ties to the UK including the nature of the ties and how they have been maintained during your absence from the UK
How long you were in the UK before you left, the length of time you have been absent from the UK, and why you left and remained absent. If you were only in the UK for a short period before leaving it is particularly important to stress your family ties to the UK
Your reasons for returning to the UK and if you plan to remain in the UK
Any other compelling reasons or compassionate factors

Returning resident visas and strength of ties to the UK

Indefinite leave to remain lawyers emphasise the need to stress the strength of your ties to the UK when applying for a returning resident visa. You may think that it is obvious that the UK is your home but it may not be as clear cut to a Home Office official without supporting evidence.

In your application it is best to clearly explain:

Family ties and family in the UK – you should not just say that you have family in the UK but also demonstrate how you have maintained the relationship during your absence from the UK. This is particularly important if the relatives are not close relations with you. For example, they are your cousins rather than a parent or sibling. If you or they did not visit in person you can still show family ties through other means of communication
Property ties – if you own a property or business in the UK

Indefinite leave to remain lawyers say that there are many scenarios where applicants are anxious about a returning resident application. For example, if you have been absent for years looking after extended family or a family business or working for an overseas-based employer or where you have been absent for just over 2 years but do not have strong property or family ties to the UK.

Our indefinite leave to remain lawyers can help you with your returning resident visa application. If you are worried about being caught up in the indefinite leave to remain absence rules our immigration solicitors can also advise you on whether you meet the eligibility criteria for a British citizenship application before you go ahead with any planned absence from the UK.

UK Online and London-Based Immigration Solicitors and Indefinite Leave to Remain Lawyers

For indefinite leave to remain and immigration law advice call London-based OTS Solicitors on 0203 959 9123 or contact us online.

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