Updated UK Returning Resident Visa Rules 2023
In September 2022 we published ‘UK Returning Resident Visa – A Practical Guide’ in two parts: part 1 and part 2. This post examines the recent changes to this category and updates the previous articles.
Prior to 2023 the Immigration Rules for returning residents were amended in 2018.
What Are the Rules for Returning Residents?
If you held Indefinite Leave to Enter or Remain when you last left the UK and wish to return as a Returning Resident, you will need to consider the requirements in paragraph 18 or paragraph 19 of the Immigration Rules. Which paragraph is relevant will depend on how long you have been outside of the UK for.
Statement of Changes to the Immigration Rules
On 12 April 2023, the relevant changes relating to returning residents found in Statement of Changes HC 1160, 09 March 2023 were implemented. Paragraph 7.74 of the Explanatory Memorandum to the Statement of Changes HC 1160 09, March 2023 reads:
Update the Returning Resident rules as currently they do not allow someone whose indefinite leave (settlement) has lapsed to apply to resume their settlement as a returning resident if they have subsequently returned to the UK as a visitor. To avoid this situation, the rules are being changed to allow someone in this position to resume their settlement in the UK, although they must still make their application from outside the UK.
The Immigration Rules were changed to allow for those who let their indefinite leave lapse to apply to resume their settlement as a returning resident even if they had permission as a visitor when they last left. Prior to this it was not possible to make such an application if you had returned to the UK and granted leave to enter as a visitor
The relevant Immigration Rules now read:
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.
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.
19A. Sub paragraphs (ii) and (iii) of paragraph 18 shall not apply where a person who has indefinite leave to enter or remain in the United Kingdom accompanies on an overseas posting a partner, parent, a spouse, civil partner, unmarried partner or same-sex partner who is:
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
The Returning residents guidance to Entry Clearance officers and Border Force officers, Version 5.0, published on 12 April 2023 was updated to reflect the changes to the Immigration Rules. The relevant section of the guidance reads:
Return to the UK as a visitor
A person can qualify as a returning resident where they have been absent from the UK for more than 2 consecutive years and who, after having indefinite leave to remain in the UK, 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).
It is important to note that an Applicant must not have had temporary permission in another route, between the point where indefinite leave to enter lapsed and permission as a visitor was granted.
Considerations When Applying for a Returning Resident Visa After Visiting the UK
The guidance confirms that when applying for a Returning Resident visa following a visit to the UK, 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 acknowledges that there ‘may be other compelling or compassionate circumstances’ and confirms that each application ‘must be considered on its individual merits’.
You may wish to seek legal advice when considering what evidence to rely upon and how best to present it.
The latest guidance retains the reference to extended absences due to the Covid-19 pandemic and travel restrictions. This was explored in a previous article.
The guidance reads:
Extended absence from the UK due to COVID-19 pandemic travel restrictions Some applicants will have been prevented from returning to the UK in 2020 and 2021, due to travel restrictions in place relating to the COVID-19 pandemic. In some cases this will have resulted in their indefinite leave lapsing.
You should consider whether travel restrictions after 24 January 2020 resulted in unintended absences from the UK. Where you assess someone had intended to return to the UK before their leave lapsed but were prevented from returning by travel restrictions, you should consider this as an additional factor supporting a grant of entry clearance.
Impact of the Change to the Rules for Returning Residents
This is a welcome change for many who visited the UK after their indefinite leave had lapsed and now wish to return to settle. The intervening visits may still be used to help demonstrate the strength of ties to the UK. An application for entry clearance will still need to be made.
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.