The post-Brexit landscape, UK immigration undergoes significant changes relating to foreign nationals

As the United Kingdom continues to navigate its post-Brexit landscape, UK immigration sees significant changes. By this we mean for those residing in the country.

One vital aspect of the UK’s immigration policy is the Indefinite Leave to Remain (ILR) status, which provides a pathway to settlement for immigrants who have lived in the UK for a certain period.

What is ILR?

This status is often referred as and considered to be “permanent residence” or “settled status”. However, there are circumstances where it can be revoked. One of these is deportation, the other is if someone resides or remains outside of the United Kingdom for a certain time period.

The time duration a citizen of the EU or an EEA can stay abroad before their “settled status” expires is five years, provided under the EU Settlement Scheme. For Swiss nationals, four years is the threshold, and for others there is a two-year window. If an applicant exceeds their maximum duration outside of the UK, their ILR is lost denying them access upon arrival to UK borders.

Regardless, there are options for those in the EU, EEA and Switzerland who have previously held a settled status under EU Settlement Scheme and wish to return to the UK. These individuals must apply for a visa through an alternate immigration application. Also, some may be eligible to reapply for the EU Settlement Scheme as a family member.

What are the options for those outside the EU and EEA?

For people outside of the EU and EEA, whether leave be limited or indefinite, they can re-enter, as long as the maximum period spent outside the UK has not been exceeded. This is provided under the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161). Accordingly, anytime a person with ILR stays outside the UK for longer than two years, their ILR immediately lapses.

Case History:

This caused controversy, largely stemming from the Irene Clenell case.     This case gained extensive media attention after the claimant was removed from the UK after caring for her parents in Singapore. In fact the main debate arose from Clenell being a mother of two British citizens and a wife to a Briton. Moreover, Clenell had resided in the UK for twenty-seven years. The Clenell case was a potential trigger for the government changing the rules in June 2018, due to the media attention. Clenell was finally granted her visa in 2017 after extensive media uproar that garnered external support from many sources.

Following the media attention and changes to the Immigration rules in June 2018, an individual previously gaining indefinite leave to remain may now have their ILR reinstated. However, each migrant must rely on an individual immigrational official’s discretionary approach, therefore there is no legal requirement for re-entry. There are few exceptions, including spouses of armed forces members serving overseas and certain diplomatic personnel, who gain automatic re-entry.

For a granted re-entry after losing ILR status, a Returning Resident visa must be obtained, at a cost of £531 to apply. This allows time for an official to make a decision before the applicant travels to the UK. As of July 2018, if someone arrives at the UK border without making an application, they will be refused entry and subsequently returned to their country of origin.

How does the Home Office make decisions?

Each immigration official makes such decisions based on Paragraph 19 of the Immigration Rules. Nevertheless, it is discretionary, and typically not in the favour of the returning applicant. Paragraph 19 sets several conditions that are to be considered. Previously, individuals were judged mostly off their length of previous stay in the UK. Now, an immigration official must be satisfied that each migrant demonstrates “strong ties to the United Kingdom and intends to make the United Kingdom his permanent home”. This is weighed up with a variety of factors, including family life, similarly to the EU Settlement Scheme.

The Home Office does provide guidance to immigration officials on how to apply these vague factors for allowing a returning resident application. The family connection is explored in more detail on page eleven, placing focus on the returning individual’s immediate family relations in the UK, also considering distant relatives. This factor is usually considered highly when there is regular contact between the applicant and their family members. Property and business ties are also measured, but unlikely to be the driving factor in allowing an application.

Upon other considerations are length of original residency, still, the Home Office state that a refusal must not be conducted based on a shorter period of original residency.

Windrush Scheme

Those returning under the Windrush Scheme are specifically considered in the Home Office’s guidance. The guidance states that those who meet the case working guidance on the Windrush Scheme who lost their ILR due to absences over two years, can apply for permanent returning residency free of charge.

For everyone else, the length of period outside of the UK for other applicants, of course, is crucial to the decided outcome. The Home Office considers this an “important factor”, which should be considered along with other components. Fortunately, applicants should not be penalised for extended absences due to the Covid-19 pandemic, being a circumstance that should support a granted re-entry.

In addition to previous relevant factors, the Home Office also consider reasons that one may have for leaving and wishing to return. These include first, returning from accessing healthcare abroad. Second, caring for family (the concerning factor in the Clenell case). Third, to access retirement, then employment and education. Indeed, the HO believes these constitute valuable reasons for indefinite leave lapses, as well as reasons for wishing to return. These reasons are, therefore, supportive. However, the Home Office guidance lacks information on the weight that these reasons hold within applications.

Conclusion

Due to the “indefinite” title associated with ILR, many who return experience an unwelcoming disturbance. Particularly, if those returning to the UK attempt to do so without knowledge of necessary returning visas. Therefore, they lack clear information about their status or misunderstand the “permanent residency” status. Therefore, more detail is beneficial when gaining ILR status, specifically concerning the grounds on which the government will deny re-entry.

For more information:

For more information contact our Head of Immigration, Leena Chouhan on 0207 427 5972