Update on Returning Resident Visa Rules (October 2023)
In September 2022, we presented a comprehensive guide on the ‘UK Returning Resident Visa’ in two parts, Part 1 and Part 2. These posts shed light on the intricacies of returning to the UK for those whose indefinite permission to enter or stay had lapsed. However, significant changes have taken place in the immigration landscape in the year 2023. The Immigration Rules for returning residents, originally amended in 2018, underwent further revisions in April 2023, ultimately leading to the introduction of a streamlined process through the Appendix Returning Resident. In this post, we delve into the newly introduced Appendix, dissecting the modifications and providing updates to our earlier posts.
This article seeks to provide clarity and guidance on the revised Returning Resident route. It caters to individuals who previously held settlement status in the UK but had it lapsed due to extended periods abroad, and who now desire to return and settle in the UK.
We will explore the circumstances in which leave lapses, the process for making a valid application, eligibility requirements for entry as a Returning Resident, and more. Additionally, we will discuss the implications of these changes on partners and children.
Statement of Changes to the Immigration Rules (HC1780)
In the latest Statement of Changes to the Immigration Rules (HC1780), published on 7 September 2023, the Home Office announced further changes to the Returning Resident rules. We examined those changes in our earlier post.
On 5 October 2023, the relevant changes relating to returning residents found in the Statement of Changes (HC 1780) were implemented and the new Appendix introduced. Paragraph 7.21 of the Explanatory Memorandum to Statement of Changes to the Immigration Rules (HC1780) outlines the change:
We are adding an ‘Appendix Returning Resident’ to the Immigration Rules. This appendix replaces paragraphs 18, 18A, 19, 19A and 20 in Part 1 of the Immigration Rules. These changes provide clarity and consistency on the requirements for entry clearance as a Returning Resident.
The relevant Immigration Rules are now found in Appendix Returning Resident.
This route is for those who wish to return to the UK having previously had indefinite permission to enter or stay (settlement) in the UK which has lapsed and who now wants to return to and settle in the UK.
Circumstances in Which Leaves Lapses
We previously examined the circumstances in which indefinite leave to enter the UK or remain in the UK may lapse.
The preamble to the new Appendix sets out the circumstances in which leave lapses:
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 EU Settlement Scheme as a Swiss national or a family member of a Swiss national.
Settlement does not lapse for a person who is outside the UK accompanying their partner or parent who is a member of HM Forces or a Crown Servant.
A Returning Resident may also be able to apply under the Windrush Scheme.
There is no requirement that an applicant had indefinite leave to enter or remain in the United Kingdom when they last left the UK. Therefore, it remains possible to make an application where an applicant has visited the UK since leave lapsed.
Making a Valid Returning Resident Visa Application
In accordance with paragraphs RR 1.1. to RR 1.4. and to avoid an invalid application an applicant must apply using the specified form or under the Windrush Scheme.
The applicant must be outside the UK and must have paid the relevant fee, established identity and provided biometric information.
The applicant must have previously been granted settlement in the UK which has lapsed by operation of law due to their absence from the UK.
What Are Eligibility Requirements for Entry for a Returning Resident?
An applicant must apply for and obtain entry clearance as a Returning Resident before arrival and must, if Appendix Tuberculosis applies, provide a valid medical certificate (paragraphs RR 3.1. and RR 3.2.).
An applicant will need to show they genuinely intend to return to the UK for the purpose of settlement (paragraph RR 4.1.) and must not have received assistance from public funds towards the cost of leaving the UK, unless applying under the Windrush Scheme.
If an applicant is under 18 at the date of application written consent is required from either both parents, one parent – if that parent has sole legal responsibility for the applicant, or the minor’s legal guardian. Any written consent will need to set out the application, living and care arrangements in the UK, and the applicant’s travel to and reception arrangements in the UK (paragraphs RR 7.1. and RR 7.2.).
An applicant must show they have maintained strong ties to the UK during their absence from the UK (RR 6.1.). There are many ways to demonstrate strong ties.
New Returning Resident Visa Guidance
The Home Office guidance, Returning Residents, Version 6.0, published on 05 October 2023, reflects the introduction of Appendix Returning Resident into the Immigration Rules.
The updated guidance continues to confirm that when applying for a Returning Resident visa the following remain important consideration in establishing strong ties:
- Strength of ties to the UK;
- 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.
The guidance continues to acknowledge that there ‘may be other compelling or compassionate circumstances’ and confirms that each application ‘must be considered on its individual merits’.
As before, given the various factors you may wish to seek legal advice when considering the evidence you may wish to rely upon and how best to present it.
What Suitability Requirements Apply to Returning Residents?
An applicant must not fall for refusal under Part 9: grounds for refusal (paragraph RR 2.1.).
Period of Grant as a Returning Resident
Paragraph RR 9.1. confirms that if successful an applicant will be granted entry clearance for settlement.
Can I Bring a Partner or Child?
An applicant applying to return to the UK cannot bring or be joined by a partner or children on this route. Each person must qualify under the relevant provisions in their own right.
You will therefore need to consider potential applications that a partner or children may be able to make and may wish to seek advice in this regard.
What Happens if My Application for a Returning Resident Visa is Refused?
If an application is refused a request can be made for an Administrative Review of the decision under Appendix AR: Administrative Review (paragraph RR 8.2.).
Contact Our Immigration Barristers
For expert advice and assistance with a Returning Resident Visa application, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.
