Lapse of settlement through operation of law: When a person holds settlement (indefinite leave to enter or remain) they are only permitted to be outside the UK and the Islands for a particular period of time or under certain circumstances before their settlement status lapses through the operation of law. The preamble to Appendix Returning Resident sets out these periods, which reflects the LTERO. The periods are:
- more than 5 years, if they previously had settlement in the UK under the EU Settlement Scheme
- more than 4 years, if they previously had settlement in the UK under the EUSS as a Swiss national or a family member of a Swiss national
- otherwise more than 2 years
The LTERO sets out some exceptions which prevent a person’s leave from lapsing for the following people:
- a partner or child accompanying a member of HM Armed Forces overseas
- a partner or child accompanying a permanent member of:
- the British Council, Foreign, Commonwealth and Development Office
- Home Office overseas
A person whose settlement has lapsed and who now wants to return and settle in the UK must apply for entry clearance to return to the UK. Where that application is as a returning resident, it will be assessed by a decision maker under Appendix Returning Resident to the rules.
Validity requirements for an application as a returning resident
The validity requirements for an application as a returning resident must be outside the UK, pay any required fee (no fee is required for the Windrush Scheme), provide any required biometrics and establish their identity and nationality by providing a passport or other document
The suitability requirements for a returning resident are that the applicant must not fall for refusal under Part Suitability. Also see the guidance on applying the grounds for refusal.
Eligibility requirements for a returning resident
A person seeking to return to the UK as a returning resident must apply for and be granted an entry clearance as a returning resident before they arrive in the UK.
They must have previously been granted settlement in the UK, which has lapsed by operation of law due to their absence from the UK. There is no requirement for the person to have last left the UK with settlement status.
The applicant will also need to obtain a valid TB certificate if they have been continuously present in a country, or in multiple countries, listed in Appendix Tuberculosis to the Immigration Rules for 6 months or more, which includes a period (of any length) within the 6 months before the date of the application.
Intention to settle requirement for a returning resident
The applicant genuinely intends to return to the UK for the purposes of settlement. For example, a person applying for entry clearance as a returning resident and giving their immediate reasons for wanting to resume their settlement as house hunting or job hunting prior to returning to settle some months later, would demonstrate an intention to settle. Whereas, returning for a short time for a fixed-term job, study, or medical treatment would not.
Alternatively, evidence that might show the applicant does not genuinely intend to return to the UK for the purposes of settlement include:
- strong family ties outside the UK
- property outside the UK
- business ties outside the UK
- length of original residence and length of time spent outside the UK
Previous departure from UK requirement for a returning resident
Unless they are applying under the Windrush Scheme, the applicant must not have received assistance from public funds towards the cost of leaving the UK. Applicants who wish to be considered under the Windrush Scheme should be referred to the information about the Windrush Scheme on GOV.UK.
Strength of ties to the UK
A person’s ties to the UK may be evident in a number of ways. The nature of those ties, and the degree those ties have been maintained during a person’s absence, will need to be considered when assessing whether a person should be readmitted as a returning resident. Such ties may include (but are not limited to):
- family ties
- property ties
- business ties
- length of original residence and length of time spent outside the UK
Family ties
Where a person has close family ties in the UK which have been maintained during their absence, this will likely indicate strong ties to the UK. The more immediate the family members are, for example parents, partner, children, or grandchildren, the greater the strength those ties are likely to have. However, relationships with wider family members, such as cousins or nieces and nephews, may also be considered if those ties have been closely maintained.
The nature of any contact will also need to be considered. For example, regular visits from, or to, the applicant from family members in the UK will help demonstrate the strength of those ties. Such contact does not, however, need to have been made physically in person, and strong ties can still be demonstrated where there has been regular contact through other means.
Property and business ties
Ties may also be in the form of property or business interests. These may be, for example, where the applicant owns their own property in the UK or has an interest in an ongoing business venture within the UK. Ties on the basis of property or business interests alone are unlikely to demonstrate strong ties to the UK but can be used in conjunction with other factors.
Length of original residence
Generally, the longer the period of original residence, the more likely it is that the applicant will have developed strong ties to the UK and can be admitted as a returning resident. It is important to consider the length of the original residence together with all other relevant factors. Home Office must not refuse an application solely based on a short period of original residence, if the other evidence points to the applicant having strong ties to the UK.
The length of time spent outside the UK will be an important factor to consider when assessing whether a person can be readmitted as a returning resident. This must be assessed against all other factors, including the time spent in the UK before they left.
A person may leave the UK for a variety of reasons. This may include: to access health treatment overseas, to care for family, to retire, for employment / self-employment or study.
In some cases, these reasons mean a person remains outside the UK for more than the permitted period, and so their settlement lapses. Home Office must consider their reasons for leaving and for now wishing to return to the UK. For example, a person may have left the UK to care for family members and now wishes to return to the UK to retire.
Any other circumstances
Other more specific circumstances which would support an application are:
- travel and service overseas with a particular employer before return to the UK with the employer
- a prolonged period of study abroad by a person who wishes to re-join the family in UK on completion of studies
- prolonged medical treatment abroad of a kind not available in the UK
- unintended absences from the UK due to – for example: the COVID-19 pandemic
Additionally, there may be other compelling or compassionate circumstances not mentioned above which need to be considered. Each case must be considered on its individual merits.
Evidence to support an application may include:
- evidence of previous settlement:
- for those who held settlement before 1 January 1973 when the Immigration Act 1971 came into force – this may not be evidenced through a vignette- biometric residence permit (BRP) / passport / other evidence such as Doctor’s records or school letters may be taken into account
- details of any family in the UK and correspondence with them (to establish strong ties to the UK)
- evidence of property in the UK and any business interests (to establish strong ties to the UK)
- letters of enrolment/attendance at an education establishment if they have been studying outside the UK for long periods
- letter of employment where this has been reason for their absence from the UK
- a letter from a medical professional if their reason for their absence relates to caring for another person or for their own medical reasons
This list is not exhaustive and other evidence can be considered.
The responsibility lies with the applicant to satisfy Home Office that they meet all the requirements. However, where there are minor errors or omissions in the application, Home Office may request more information, or clarification, if this may make a material difference to your decision on the application.
If the applicant is interviewed, questions put to the applicant may sometimes lead to an indication that the claim to be a returning resident is a fraudulent one. It is expected that the applicant can display sufficient knowledge relevant to their claimed life in the UK.