Returning residents and the two year rule exception
For many migrants, achieving settlement, or indefinite leave to remain, can be one of the most expensive and time-consuming goals that any individual can strive to achieve. So, once obtained, foreign nationals will usually do all that they can to protect their long sought after status.
One thing that a migrant who has obtained ILR must ensure is that if they ever leave the UK, they return within 2 years of embarking. This allows them to maintain their status of Indefinite Leave to Remain. If the resident does not return within 2 years of embarking, then they will lose their settlement status and will have to find an alternative basis upon which to enter the UK (paragraph 18, Immigration Rules).
However, there does exist an exception under paragraph 19 of the Immigration Rules. This provides for circumstances whereby an individual may be re-admitted to the UK as a returning resident despite the fact that the individual has stayed outside of the UK for longer than 2 years. This provision allows for a returning resident to be re-admitted if his or her ties to the UK merit re-admittance.
There are number of factors that the Home Office will look at in order to ascertain whether the ties of a returning resident merit re-admittance. These include:
- consideration of the length of the individual's original residence;
- consideration of the length of time spent outside of the UK;
- why the individual did not return within 2 years of embarkment?;
- why the individual went abroad when they did (i.e. their intentions)?;
- what are the exact nature and extent of the individual's family ties to the UK? Are these ties particularly close?
- would the migrant make the UK their home and effectively resume residency?
This is by no means an exhaustive list, but it does provide some insight into the issues that the Home Office will consider when faced with a returning resident who has not returned within the required time period. As a matter of tactics, it is advisable to apply for entry clearance as a returning resident in order to avoid an inconvenient denial of entry at the airport.
If you would like to obtain further advice on applying for entry clearance as a returning resident or obtaining settlement, contact our immigration barristers in London via firstname.lastname@example.org.