25 Oct Changes to the Returning Resident Rules in HC 1160 and HC 1780

Several changes were implemented in Part 1 of the Immigration Rules (HC 1160) on 12 April 2023, which include revisions to the Returning Residence rules outlined in paragraphs 18 to 20 of the Immigration Rules.

For individuals with indefinite leave to remain, their status will be lost if they are absent from the UK for more than 2 consecutive years. In general, you can resume your residence if the following conditions apply:

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.

18A. Those who qualify to resume their residence in accordance with paragraph 18 do not need a visa to enter the UK.

If you are absent from the UK for exactly two years, you may still be eligible to resume your ILR status. For instance, if you left the UK on October 16, 2021, and returned on October 16, 2023, you still have a chance to be permitted for entry because you have not been away for more than 2 years. However, it’s important to note that this decision is still at the discretion of the UK border authorities.

The changes occurred in paragraph 19, which has now been substituted with:

19. A person who can demonstrate he has strong ties to the United Kingdom and intends to make the United Kingdom his permanent home but does not benefit from the preceding paragraph by reason only of:

(a) having been absent from the United Kingdom for more than two consecutive years; or

(b) having been absent from the United Kingdom for more than two consecutive years and who, after having indefinite leave to remain in the United Kingdom, had permission as a visitor when they last left (providing they have not had temporary permission in another route between the point where their indefinite leave to enter or remain lapsed and their permission as a visitor was granted), must have applied for, and been granted, indefinite leave to enter by way of entry clearance.”.

In summary, paragraph 19 provides a provision for individuals whose Indefinite Leave to Remain (ILR) has lapsed due to a two-year absence and who held visitor status when they last left the UK. It is  crucial to emphasize that an applicant should not have obtained temporary permission through another immigration route during the period between the expiration of their indefinite leave to enter and the grant of visitor status.

According to paragraph 19A, the exception in paragraph 18 applies to individuals who have indefinite leave to enter or remain in the United Kingdom and are accompanying a partner, parent, spouse, civil partner, unmarried partner, or same-sex partner on an overseas posting if the partner is one of the following:

a) a member of HM Forces serving overseas; or

b) a British citizen or is settled in the UK and

(i) a permanent member of HM Diplomatic Service;

(ii) a comparable United Kingdom based permanent staff member of the British Council;

(iii) a permanent staff member of the Department for International Development; or

(iv) a permanent Home Office employee

On 5 October, HC 1780 came into effect. Paragraphs 18-20 were removed from Immigration Part 1, and a new appendix for returning residents was inserted.

According to the “Appendix: Returning Resident”, it provides additional details of migrants under the EU Settlement Scheme (EUSS) and Swiss nationals. Their statuses will lapse after 5 years and 4 years. Respectively.

A Returning Resident’s previous settlement in the UK must have lapsed by operation of law after they were outside the UK for a continuous period:

-of more than 2 years under the Immigration (Leave to Enter and Remain) Order 2000, or

-of more than 5 years, if they previously had settlement in the UK under the EU Settlement Scheme, or

-of more than 4 years, if they previously had settlement in the UK under the EUSS as a Swiss national or a family member of a Swiss national.

These updates have removed the privilege that allowed resuming status if absent from the UK for more than 2 years and subsequently granted visitor status. Now the only exemption is for those outside the UK accompanying their partner or parent, who is a member of HM Forces or a Crown Servant. Any absence from the UK for more than 2 years will lead to an immediate loss of status.

Furthermore, applicants must meet suitability requirements and not fall under Part 9: grounds for refusal.

Regarding eligibility, individuals may be required to provide a Tuberculosis report if applicable:

RR 3.2. A person applying for entry clearance as a Returning Resident must, if Appendix Tuberculosis applies, provide a valid medical certificate confirming that they have undergone screening for active pulmonary tuberculosis and that this tuberculosis is not present in them.

Moreover, it emphasized on the intention to continue living in the UK and maintaining strong ties to the country:

RR 4.1. The decision maker must be satisfied that the applicant genuinely intends to return to the UK for the purpose of settlement.

RR 6.1. The decision maker must be satisfied that the applicant has maintained strong ties to the UK during their absence from the UK.

The related requirements are the same as in the previous rules, in practice, to resume your ILR status, individuals must demonstrate strong ties to the UK, which may include:

-Family ties;

-Property and business ties;

-Length of original residence;

-Length of time outside of the UK;

-Reasons for leaving and wishing to return; and

-Any other circumstances.

Additionally, individuals cannot have used public funds for leaving the UK, except when applying under the Windrush Scheme:

RR 5.1. Unless they are applying under the Windrush Scheme, the applicant must not have received assistance from public funds towards the cost of leaving the UK.

In general, ‘Windrush Scheme’ is for someone to prove their permission to stay if they:

• came to the UK from a Commonwealth country before 1973
• parents came to the UK from a Commonwealth country before 1973
• came to the UK from any country before 31 December 1988 and are now settled here

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