Returning Residents and the ‘2 Year Rule’

People who have indefinite leave have no limit on the amount of time they can spend in the UK. However, such people still enter and remain in the UK by permission of the Home Office and as such are still subject to immigration control. When a person holds indefinite leave to enter or remain and they leave the UK, on their return, they must either meet the requirements in paragraph 18 or paragraph 19 of the Rules. This will depend on the amount of time spent outside the UK.

Less than 2 years’ absence

A person who has been absent from the UK for less than 2 years will retain their indefinite leave and does not need to apply for entry clearance before resuming their residence in the UK. Border force officers will assess whether a person can be admitted for entry under the requirements of paragraph 18. A person who has been absent from the UK for less than 2 continuous years will retain their indefinite leave. It is usually possible to check absences from the UK through entry and (old) embarkation stamps (endorsed by Immigration Officers).

In line with paragraph 18, a person must show that they are seeking entry for the purposes of settlement. Whilst in most cases a person would be returning to settle at the point of entry, there may be other circumstances where a person is in work or study for long periods overseas, but still intends to ultimately settle in the UK on completion of the employment/study. This will not disqualify a person from admission as a returning resident, provided:

• they are normally resident in the UK (for example, a person has property or family or other interests in the UK which are being closely maintained through regular contact)
• at the time of their entry, they consider the UK to be their permanent home
• they have not been away from the UK for more than 2 years and intend to return to the UK for settlement in the future

More than 2 years’ absence

A person who has been absent from the UK for more than 2 consecutive years, will automatically lose their indefinite leave as a matter of law. This is set out in paragraph 20 of the Immigration Rules and in Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 (LTERO).

In line with paragraph 19 of the Rules, a person may nevertheless be admitted as a returning resident if they can demonstrate strong ties to the UK:

• the nature of those ties
• the extent to which those ties have been maintained during the applicant’s absence
• the length of their original residence in the UK
• the circumstances in which they left the UK and their reasons for remaining absent
• their reasons for now wishing to return
• whether, if they were to be readmitted, they would continue to live in the UK
• any other compelling or compassionate factors

Any applications for readmission following a 2 year absence, must be made at a UK visa application centre.

Source: Grace McGill, McGill & Co, https://is.gd/xpGJSH