(In)definitely maybe – when indefinite doesn’t quite mean indefinite

23 September 2021

You have come to the end of your long immigration journey, paid thousands of pounds to UKVI to obtain permission to enter, permission to stay and then, finally, indefinite leave to remain (ILR) (also called settlement). When obtaining ILR, individuals may understandably breathe a sigh of relief – it’s over! For many who, for various reasons, choose not to naturalise or register as British, ILR can provide adequate status to live and work in the UK permanently.
 

However, despite its name, what can come as a nasty surprise for those with ILR/settlement is that the status is not necessarily valid indefinitely.  If you are outside the UK for a continuous period of 2 years or more your status will lapse automatically and cease to be valid. Indeed the concept of lapsing permission/leave also applies to holders of limited status in the UK.

To avoid their status lapsing, holders of ILR must return to the UK within a two year period with “an intention to settle” - in reality it has been possible to keep ILR ‘ticking over’ by visiting the UK and the requirement to be returning to settle appears to be loosely observed.  That said, ILR holders should always be aware they can be questioned by Border Force officials.

So-called returning resident applications can come to the rescue where an ILR holder has an absence of more than two years and can lead to the ILR being reinstated.  In pandemic times exceeding the two year mark has become a more frequent problem whereby holders of ILR have been unable or unwilling to travel to the UK to avoid their ILR lapsing.

Fortunately UKVI’s guidance on returning resident applications has been updated to state that caseworkers should consider “whether travel restrictions after 24 January 2020 resulted in unintended absences from the UK”. The guidance is not so sweeping as to say that all Covid-19 related absences will be disregarded but rather that they will be considered as “an additional factor supporting a grant of entry clearance” as a returning resident.  Where the absences are accepted as being related to Covid-19 travel restrictions, the UKVI returning resident visa application fee (usually £516) should be refunded.

Applying as a returning resident is not an easy process and the threshold to have ILR reinstated for some applicants may appear high – in particular, the requirement to prove that you are returning to permanently settle in the UK is potentially scrutinised more carefully along with a requirement to show the strength of your ties to the UK, with various factors considered by caseworkers. Holders of ILR will likely find that struggling through international travel restrictions before crossing the two-year absence point is much more straightforward than seeking to apply as a returning resident.

Further Information

If you have any queries in relation to the above issues, please contact a member of the immigration team.

 

About the Author

Robert is a Senior Associate in the Immigration team, and has extensive experience of assisting individuals wishing to relocate to the UK with their immigration and nationality matters. His experience covers all kinds of immigration and nationality applications but with a particular emphasis on corporate immigration matters, helping high net worth individuals and partners of British citizens or those with indefinite leave to remain.

 

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