There are many benefits to holding Indefinite Leave to Enter (ILE) or Indefinite Leave to Remain (ILR), as we examined in this earlier post. In this post we examine the position for those who wish to enter the UK as a Returning Resident after having been away from the UK for less than 2 years. In the next post in this series we will consider what happens if you were granted Indefinite Leave to Enter or Indefinite Leave to Remain and wish to return to the UK after having been absent for more than 2 years.
What Are the Rules for Returning Residents?
If you held Indefinite Leave to Enter or Remain when you last left the UK and wish to return as a Returning Resident, you will need to consider the requirements in paragraph 18 or paragraph 19 of the Immigration Rules. Which rule is relevant will depend on how long you have been outside of the UK for.
Is There Returning Resident Visa Guidance?
Entry clearance officers or border force officers will refer to the Returning residents, Version 4.0 guidance when considering an application for a Returning Resident visa. The Returning Resident visa guidance was published for Home Office staff on 24 January 2022.
What if I Have Been Absent From the UK for Less Than 2 Years?
If you have been absent from the UK for less than 2 years then you will retain your indefinite leave and do not need to apply for Entry Clearance as a Returning Resident before resuming your residence in the UK. However, on entry, a border officer will assess whether you can be admitted for entry in accordance with the requirements of paragraph 18 of the Immigration Rules.
What Will the Border Officer Assess if I Am a Returning Resident and I Have Been Absent From the UK for Less Than 2 Years?
A border officer will consider evidence of status, which is normally found in a passport, immigration status document or BRP. Alternatively, status may be confirmed through records, or other proof you were settled in the UK before 01 January 1973. You may have made an NTL application at some point. Absences can be checked through stamps or other records of departure and entry. In addition, the border officer may wish to check that your last departure from the UK was not financed from public funds.
You will need to show that you are seeking entry for the purpose of settlement. If an individual is working or living abroad, the guidance sets out the following considerations:
This will not disqualify a person from admission as a returning resident, provided:
- they are normally resident in the UK (for example, a person has property or family or other interests in the UK which are being closely maintained through regular contact)
- at the time of their entry, they consider the UK to be their permanent home
- they have not been away from the UK for more than 2 years and intend to return to the UK for settlement in the future.
You may consider carrying evidence of a future intention to settle to present on entry, including evidence of current circumstances and links to the UK.
It is possible for further enquiries to be made and for you to be examined, but only where there is 'substantial evidence to doubt the person's true intentions or any entitlement to their residency'.
Granting Entry at the Border as a Returning Resident
If you satisfy the border officer of your indefinite leave, absence of less than 2 years and that the requirements of paragraph 18 are met, your passport will be endorsed with an open date stamp. This stamp does not grant leave but confirms and provides evidence of arrival in the UK as a Returning Resident.
On occasions, individuals who have not been away for more than 2 years will seek entry as a visitor. If the requirements of paragraph 18 are met the passport should be endorsed with an open date stamp confirming they continue to hold indefinite leave, not leave as a visitor.
What Happens if I Do Not Satisfy the Border Officer That I Am a Returning Resident?
If you do not satisfy the border officer of your intentions to settle in the UK, your indefinite leave to enter or remain could be cancelled:
'If, upon conducting a thorough examination, you are satisfied that the person has indefinite leave but that they are not returning to the UK to settle, either now or in the future, then you must cancel the indefinite leave due to a change of circumstances. The individual will have a right to an Administrative Review unless they waive their right to it'.
What Happens if I am British and Seeking Entry?
Once you have been granted British citizenship you cannot continue to seek entry to the UK using any previous grant of leave, for example you may still have a vignette in your passport. As a British citizen, you are no longer subject to immigration control. There are circumstances where an individual may have not yet attended their citizenship ceremony or not have done so within 3 months and can therefore use their indefinite leave to enter or remain to return to the UK. Further caution needs to be exercised in the case of children, who will become British from the time their registration application is successful and the certificate of registration is issued.
If you have become British and are seeking entry you will need to ensure you either have a British passport or a certificate of entitlement to the right of abode. The guidance reads:
Where a person has become a British citizen and attended their ceremony, but is still in possession of an indefinite leave stamp or vignette in their passport, they may no longer use this as a means of entry to the UK. The applicant should instead now be in possession of a British passport or have a certificate of entitlement to the right of abode. You must then place a 'cancelled without prejudice' stamp across the indefinite leave stamp or vignette and return to the passenger. They will then be allowed to pass through the primary control point (PCP).
In the next post in this series, UK Returning Resident Visa – A Practical Guide – Part Two, we will consider what happens if you have been absent from the UK for more than 2 years and wish to return to the UK as a Returning Resident, what the exceptions are, factors to be considered and the documents required in support of a Returning Resident visa application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.