Losing Indefinite Leave Status in the UK

 Many people are aware of indefinite leave to remain. It is a significant turning point in a migrant's journey in the United Kingdom. When a person obtains ILR or Permanent Residence (PR), any restrictions on their leave are lifted, and they can stay in the UK permanently and for as long as they like. The most frequent ways to obtain ILR are through employment, such as the Tier 2 (General) ILR route, through family, such as spouse visa ILR, or through acquiring ILR on a 10-year residency basis.

In many ways, indefinite leave to remain is the same as becoming a British citizen, in that any restrictions imposed while on a visa are eliminated. In principle, the ILR holder would enjoy the same benefits as other British nationals while living in the UK. The two obvious exceptions are voting in general elections and, of course, the perk of foreign travel afforded to British passport holders. ILR is also required before filing for naturalisation as a British national.

The most often asked issue is how a person can lose indefinite leave to remain. In many other countries around the world, once ILR is obtained, it is in effect indefinitely, as the term implies. This is not the case in the United Kingdom. Most people are aware that ILR can be lost after two years of continuous absence from the UK, but is it really that simple? Unfortunately, the situation is far from easy, as it is in all other sections of the exceedingly intricate UK Immigration Rules.

Revocation of ILR

The Home Office may withdraw ILR in some cases, or it may be invalidated following expulsion from the UK. ILR can normally be revoked in circumstances involving criminality, deportation, or the use of fraud when obtaining indefinite leave. The ILR will be revoked if a person: is subject to deportation or administrative removal but cannot be deported or removed due to the UK's obligations under the Refugee Convention or the European Convention of Human Rights (ECHR) (ILR is revoked); has obtained leave through deception (ILR is revoked); is deported from the UK (ILR is invalidated); ceases to be a refugee due to their own actions (ILR is revoked);

Following a two-year absence from the UK, ILR will automatically expire.

A person who has been absent from the UK for more than two years in a row would automatically lose their indefinite permission to remain, according to the legislation. Paragraph 20 of the Immigration Rules and Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 include the applicable rules. In practise, this implies that ILR will become invalid as a result of the law, even if the holder still has the BRP card or stamp in their passport. There are only a few limited exceptions to this regulation, such as people serving for the UK government overseas.

In cases where ILR has lapsed due to absence abroad, the person may still be readmitted to the UK under the rules for returning residents in paragraph 19 of the Immigration Rules. Every case will be examined on its own merits, however the following elements will be considered in general:

their ties to the UK, including the nature of those ties

the extent to which those relationships have been maintained during the applicant's absence the length of the applicant's first residency in the UK

the applicant's time spent outside the United Kingdom

the circumstances under which they left the UK and their reasons for remaining absent their reasons for now wishing to return whether they would continue to live in the UK if readmitted any additional compelling or humane factorstheir ties to the UK, including the nature of those ties

the extent to which those relationships have been maintained during the applicant's absence the length of the applicant's first residency in the UK

the applicant's time spent outside the United Kingdom

the circumstances under which they left the UK and their reasons for remaining absent their reasons for now wishing to return whether they would continue to live in the UK if readmitted any additional compelling or humane factors

A returning resident application should be submitted well in advance of the desired date of arrival to the UK. Of course, many people will not realise their indefinite leave has expired until they cross the border into the United Kingdom. Because it is no longer possible for immigration officers to provide leave at the border under paragraph 19, individuals with lapsed ILR will be refused entrance and repatriated to their place of origin.

ILR cancellation due to absence of less than two years

Following from the above facts, common sense would suggest that an absence of less than two years would allow a person to retain their ILR and return to the UK without difficulty. "So I merely have to return to the UK for a couple of days every 2 years to keep the ILR "alive," one of our clients frequently asks after learning that ILR can be lost due to an absence of more than 2 years. Things aren't always black and white (when aren't they?). According to the Home Office's guidelines for returning residents, "a person who has been gone from the UK for less than two years will retain their indefinite leave and does not need to apply for entry clearance before resuming their residence in the UK”

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