Many people know what indefinite leave to remain is. It constitutes a major reaching point in a journey of a migrant in the UK. When the person acquires ILR or Permanent Residence (PR), any restrictions accompanying their leave are cancelled and they can remain in the UK indefinitely and as long as they desire. The most common routes to acquire ILR are through employment, for example through Tier 2 (General) ILR route, through family, i.e. spouse visa ILR or acquiring ILR on a 10 year long residence basis.
Indefinite leave to remain in many ways is identical to being a British citizen, i.e. any restrictions which the person held while on a visa are lifted. In general, the ILR holder would enjoy the same benefits while living in the UK as other British nationals do. The only obvious exceptions are voting on a general election and, of course, the benefit of international travel that British passport holders have. ILR is also a mandatory step before applying to naturalise as a British national.
The question that arises most often is how a person can lose indefinite leave to remain. In many other countries around the world, once ILR is acquired, it will remain in place indefinitely as the name suggests. This is not the case in the UK. Most people are aware that ILR can be lost through a consecutive absence from the UK of 2 years, but are things really that simple? Unfortunately, as with all the other areas of extremely convoluted UK Immigration Rules, the situation is far from being a straightforward one.
Revocation of ILR
There will be instances where ILR will be revoked by the Home Office or it can be invalidated following deportation from the UK. Revocation of ILR can usually take place in cases involving criminality, deportation or use of deception when acquiring indefinite leave. The ILR will be revoked where a person:
- is liable to deportation or administrative removal but cannot be deported or removed because of the UK’s obligations under the Refugee Convention or the European Convention of Human Rights (ECHR) (ILR is revoked);
- has obtained leave by deception (ILR is revoked);
- is deported from the UK (ILR is invalidated);
- ceases to be a refugee because of their own actions (ILR is revoked);
- remains outside of the UK for more than two years (ILR lapses, see below).
ILR will lapse automatically following a consecutive absence of 2 years from the UK
In accordance with the law, a person who has been absent in excess of 2 consecutive years from the UK will automatically lose their indefinite leave to remain. The relevant provisions are contained in paragraph 20 of the Immigration Rules and Article 13 of the Immigration (Leave to Enter and Remain) Order 2000. What this means in practice is that ILR will become invalid by virtue of the law, even though the holder may still be in possession of the BRP card or stamp in their passport. There are only a few limited exceptions to this rule, for example for those serving overseas for the UK government.
In instances where ILR has lapsed due to the absence overseas, the person can still be readmitted to the UK under provisions for returning residents contained in paragraph 19 of the Immigration Rules. Every case will be considered on its merits, however, in general, the following factors will be considered:
- their strength of ties to the UK including:
- the nature of those ties
- the extent to which those ties have been maintained during the applicant’s absence
- the length of their original residence in the UK
- the length of time the applicant has been outside the UK
- the circumstances in which they left the UK and their reasons for remaining absent
- their reasons for now wishing to return
- whether, if they were to be readmitted, they would continue to live in the UK
- any other compelling or compassionate factors
A returning resident application should be made prior to the intended date of travel to the UK. Of course, many people would not realise that their indefinite leave has lapsed until reaching the UK border. It is no longer possible for the immigration officials to issue leave at the border under paragraph 19, so in instances where ILR has lapsed, the person will be refused entry and will be returned to the country of origin.
A successful returning resident application would mean that the person will have their ILR restored and can then return back to the UK. Assistance from an immigration lawyer may be advisable due to the very subjective nature of returning resident applications.
Cancellation of ILR through absence of less than 2 years
Following from the information above, a common sense would dictate that an absence of less than 2 years would allow a person to keep their ILR and return to the UK without any issues. A question that most often follows from our clients upon learning that ILR can be lost through an absence of more than 2 years, “so I just have to return to the UK for a couple of days every 2 years to keep the ILR “active”? Quite expectedly, things are not that black and white (when are they?). The Home Office’s guidance on returning residents states: “A person who has been absent from the UK for less than 2 years will retain their indefinite leave and does not need to apply for entry clearance before resuming their residence in the UK”.
Seems very clear. However, there is further information which stipulates that border officials “will assess whether a person can be admitted for entry under the requirements of paragraph 18”. To answer the question above, we need to consider paragraph 18 of the Immigration Rules, below:
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 (emphasis added).
Often overlooked part of paragraph 18(iv) states that not only a person must have been away from the UK for less than 2 years, but that person must be returning to the UK for the purpose of settlement. In a scenario outlined above, a short return to the UK every two years may result in ILR being cancelled at the border, as at some stage the person may have created life overseas and will not, therefore, be returning to the UK for the purposes of settlement, but rather attempting to enter as a visitor in order to prevent their ILR from lapsing.
If the decision is made to cancel ILR due to change of circumstances, the person will have a right of Administrative Review, which, as we know, is of limited scope. There is no right of appeal against a decision to revoke ILR or against the refusal of a returning resident application. However, is some instances a right of appeal may arise on Human Rights grounds depending on the the strength of a person’s article 8 claim.
Applying for entry clearance as a returning resident?
Individuals who wish to apply for an entry clearance in order to travel to the UK as returning residents will have to prepare and submit an online application. The application costs £516. The applicant will need to complete the form and provide necessary supporting evidence depending on the circumstances of the case. Any partners or dependants will have to apply separately if they are eligible to do so.