Indefinite Leave to Remain Expiry Rules

Indefinite Leave to Remain Expiry Rules

If you are an indefinite leave to remain (ILR) holder, or are applying for ILR, it is important to be aware of the ILR expiry rules and how ILR status can be lost or revoked. With ILR, you are permitted to stay in the UK without restrictions on your time or activities in the UK. You are also able to travel into and out of the country free from immigration control. However, although ILR grants indefinite permission to reside in the UK, this status can be lost in certain circumstances.

Rules on indefinite leave to remain expiry

The UK immigration rules specify that ILR status will expire where the individual has left the UK, Ireland or the Crown Dependencies (Isle of Man, Guernsey and Jersey) and remained absent for a period of more than two continuous years. This means that after two years of absence from the UK, you will no longer be considered present and settled in the UK.

The two-year rules will apply regardless of the expiry date on your ILR documentation, such as your BRP or vignette in your passport. Additionally, your status will be deemed to have automatically lapsed after two years out of the country.

Only in the following limited circumstances could you be exempt from the indefinite leave to remain expiry rule:

• You are a dependant of a member of HM Armed Forces who, you have accompanied overseas,
• You are a dependant of a British citizen or settled person (ie an individual with ILR, settled status or permanent residence) in permanent employment in the Foreign and Commonwealth Office, Department for International Development, the Home Office or British Council and they have been accompanying them overseas,
• You are a Commonwealth citizen covered by section 1(5) of the Immigration Act 1971, and
• You return to the UK in circumstances that do not require leave to enter.

 Returning to the UK briefly will have the effect of restarting the clock, but you should also be aware that border officials may question if you are only in the UK for short periods at a time, since ILR relates to settlement in the UK.

It should also be noted that if you hold EU settled status, the expiry rule applies after five years out of the UK.

If the two-year rule applies and your ILR status has been lost, you will then need to apply for entry clearance as a returning resident before coming back to live in the UK.

Returning resident visa

A returning resident visa will be required if you are looking to re-enter the UK to settle after an absence of two years or more, having previously held and lost the grant of ILR. If you are readmitted as a returning resident, your ILR will be restored.

Previous rules allowed such individuals to apply for re-entry at the border. However, since July 2018, you should instead make your application for entry clearance with a returning resident visa prior to travel to the UK.

Returning resident visa requirements

To be eligible as a returning resident, you need to show that you did previously hold valid ILR when you left the UK, that you did not receive assistance from public funds towards the cost of leaving the UK and that you now intend to make the UK your permanent home.

UK immigration officials are afforded discretion under paragraph 19 of the Immigration Rules to determine readmission for returning resident status, looking at the following key requirements and factors for consideration:

• You can show you have sufficiently strong ties to the UK. Strong ties include evidence of links to family present in the UK, as well as work and property connections, and the degree to which you have maintained these links and contact during your absence. The stronger your ties to the UK, the more likely you will be granted the returning resident visa.
• Length of absence. The length of time you have been away from the UK will be a critical factor in determining your eligibility for readmission and reinstatement of your ILR. The longer you have been away from the country, generally it can be more difficult to establish you have maintained sufficiently strong ties.
• Length of original UK residence. A longer period of original stay can be used to support a claim for strong ties.
• Your reasons for absence. You will also need to provide evidence and details of why you left the UK and of your current circumstances. For instance, did you leave to care for an ill relative, to work or study and are now looking to live back in the UK?
• Other factors may also be considered such as service overseas with a particular employer, prolonged medical treatment abroad of a kind that is not available in the UK or a prolonged period of study abroad by a person who wishes to rejoin the family in the UK on completion of studies.

Any dependants, such as your spouse, partner or children under 18, must also apply for their own returning resident visa, where eligible.

If your application is refused you may be able to challenge the decision under an administrative review.

Check your indefinite leave to remain expiry

If you attempt to re-enter the UK with expired ILR and without a returning resident visa having been granted a grant of entry under another relevant visa category, you will be refused entry and will have to return to your country of origin.

Given the significance of the two-year rule on your UK immigration status and travel rights, you will need to be certain of the length of your absence from the UK and whether the indefinite leave to remain expiry rule applies to you before you travel to the UK.

You should review your travel history, checking travel documents, tickets and your passport for visa and immigration stamps issued since you were granted your ILR.

Remember also that your ILR will expire after 2 years of absence, regardless of the expiry date on your proof of ILR, such as the BRP or passport stamp.

Can my indefinite leave to remain status be lost?

There are some circumstances where your UK ILR can be taken away. If you are deported it will be revoked automatically. It will also be revoked if you are liable for deportation but for legal reasons, such as the Refugee Convention or EU Convention on Human Rights, but your deportation cannot be carried out.

If you are found to have obtained ILR by deception or you were granted ILR status as a refugee and that refugee status no longer applies your ILR will also be revoked in those scenarios.

Proving your ILR status

Documentary proof of your ILR is not mandatory but highly recommended. With proof of status, you can confirm your status when for example you are evidencing your right to work in the UK or use it when travelling to avoid issues with re-entry into the UK.

ILR can be evidenced in various documentation:

• Biometric Residence Permit (BRP): confirming your status as ‘Indefinite Leave to Remain’, ‘Indefinite Leave to Enter’, or ‘No Time Limit’ (NTL),
• NTL stamp in your passport, and
• Official letter from the Home Office confirming your ILR status.

If your passport is lost or stolen or expired, or if you have no proof of your indefinite leave status, you can apply to have your indefinite leave transferred to a BRP by making a no time limit NTL application. If you have changed your identity since being given ILR you will also need to apply for a BRP in order to confirm this.

To apply, you must:

• Hold valid ILR in the UK,
• Have not lost your ILR status through expiry ie after two years absence,
• Continue to be entitled to ILR,
• Apply from within the UK using an NTL application form, and
• Pay the required fee.

NTL BRPs cannot be issued to:

• British citizens,
• Individuals with UK right of abode,
• European Economic Area (EEA) nationals with right of UK permanent residence under the EEA Regulations or EU settled status or pre settled status, and
• Family members of EEA nationals with right of UK permanent residence under the EEA Regulations.

 

If you have ILR under the EU Settlement Scheme, you do not need to apply for documentary evidence of your status.

Additionally, if you have been away for less than 2 years but you have lost your documentation, you can get a replacement BRP.

If you were settled in the UK on 1 January 1973, or arrived before 1988, you may then be eligible under the Windrush Scheme to apply for evidence of your status.

Has your BRP expired, been lost or stolen?

All Biometric Residence Permits have an expiry date and will last up to 10 years.

If your BRP has expired and you have ILR you must apply online for a replacement, which must be done from within the UK. If your visa is also due to expire you should apply for a visa extension first and then if successful you will automatically receive a BRP replacement.

You can apply for a replacement permit at least 3 months before expiry. To do this you should use the BRP replacement service. You will need to fill in an application form, submit relevant documents, pay an application fee and then have your fingerprints and photo taken.

You must inform the UK Home Office if you want to change any details on your BRP. This could be your name or gender. If your physical appearance has changed significantly you should also inform them of this as well.

In cases where your BRP has been lost or stolen rather than simply expired you must report this to the UK police as soon as possible and inform the Home Office of the official crime reference number. You can face a financial penalty and be made to leave the UK if you do not apply for a replacement within a period of 3 months.

If your BRP is stolen abroad, you will need to apply for a short term single entry visa to re-enter the UK  prior to applying for a replacement BRP when back in the UK.

How we can help

At NA Law Solicitors we provide thorough guidance and advice for individuals in regards to any ILR concerns they may have.

If you have any queries about ILR and wish to seek advice on any ILR matter you may have, please get in touch for an initial assessment.