For holders of Indefinite Leave to Remain in the UK, Immigration Rules changed quietly in October 2023. The changes concern people who spend much time outside the UK but wish to protect their settled status in the UK or re-activate their settled status if it lapsed due to a prolonged absence.
Generally, indefinite leave to remain does not have an expiry date. But it can be cancelled (for example, following a criminal conviction) or it can lapse if you are out of the UK for two years or longer (or for five years if you were granted settled status under EU settlement scheme).
What recently changed for returning residents
In October 2023, Appendix Returning Resident replaced paragraphs 18, 18A, 19, 19A and 20 in Part 1 of the Immigration Rules. This introduced two important changes:
- The requirement that the holder of ILR has to return to the UK for the purpose of settlement (previously set out in paragraph 18 (iv) of Part 1) has been removed. In practical terms, this means that visiting the UK once in two years (or once in five years for EU nationals and their family members) would be perfectly legitimate and would not amount to abuse of the system.
- Secondly, Appendix Returning Resident allows an application for a Returning Resident visa if previously granted ILR was superseded by another type of visa, for example, visitor visa.
No requirement to be seeking admission for the purpose of settlement
It is a considerable relief both for returning residents and for immigration practitioners advising them that this requirement has been removed. In the past, an immigration officer had discretion to refuse admission to a person holding Indefinite Leave to Remain if the purpose of coming back to the UK was a short visit and the person had no lasting connections with the country (no property, employment, family etc).
Before introduction of Appendix Returning Resident, our advice was on the side of caution – if you are leaving the UK for a prolonged period of time, repeated visits may not be sufficient to maintain your indefinite leave to remain unless you have strong ties with the UK or can prove that your absences were of temporary nature – looking after a relative overseas, studying, working for a UK based employer.
Our advice now is more confident in that visiting the UK is sufficient to protect your status and the purpose of visit should not have an impact on your status.
This applies equally to EEA nationals and their family members with settled status who can maintain their settled status by visiting the UK at least once in five years (four years for Swiss citizens), and for people who acquired ILR through other immigration rules.
If you have been out of the country for longer than the permitted period of absence, you will have to apply for a returning resident visa. To make this application, you will have to show that you will be returning for the purpose of settlement – in other words, you have a viable plan to stay in the UK permanently (you would be expected to have, or be in a position to find, adequate accommodation and have a viable source of income to maintain yourself in the UK.
Permitted intervening admissions as a visitor
In the past, a visitor visa granted in such circumstances would make it impossible to apply for a returning resident visa ever after. Now the rule has changed and you can visit if you are still unable to return for good.
If the purpose of travelling to the UK is a visit, it is a much better option to apply for a visitor visa. It will be easier to get a returning resident visa in due course if you have been consistent and open about your prospects and intentions in the UK.
Working abroad and maintaining indefinite leave to remain
If you are working abroad and don’t have a home or family ties in the UK, but want to protect your settled status, the best advice an immigration lawyer can give you is to visit the UK at least every two years and keep evidence of your trips. You would normally get an entry stamp in your passport, but if you are coming through electronic gates and don’t get a stamp, keep your boarding passes and travel itinerary in case you need to prove your trips.
Advantages of British citizenship over ILR
ILR is not the same as British citizenship. Citizenship is granted for life and does not lapse due to absence from the UK for any period of time.
However, you cannot apply for British citizenship if you had excessive absences in the five years prior to the application. And in addition, you will be making a declaration of your intention to live in the UK permanently. So application for British citizenship will not work as a protection of your settled status if you intend to leave for the foreseeable future. However, if you know that you will be leaving the country temporarily, but have intention to return, and your planned absence would affect your eligibility for British citizenship, it is a good idea to apply for naturalisation and a British passport.