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New Rules for Returning Residents

On 6 July 2018 the ‘Long Residence Rule’ will be amended in light of the ‘Windrush generation’ issue to compel returning residents previously granted ‘indefinite leave to remain’ (“ILR”), and who have been absent from the UK for 2 years, to apply for entry clearance prior to seeking admission to the UK.

This is an important change for those who hold ILR and have been away for 2 years, as they will no longer be able to seek entry on arrival as a returning resident.

Although this change has been introduced in light of Windrush - it will affect all nationals who are returning residents seeking entry who have been absent for 2 years.

The pre 6-July 2018 rules enabled those who landed at port to be admitted as returning residents if they could prove to the satisfaction of the duty Immigration Officer that they maintained strong ties to the UK. If they were refused entry as a returning resident, a challenge could be brought against the negative decision from within the UK.

The new rules require returning residents with absence of 2 years or more to apply for entry clearance, placing an additional evidential burden to prove their case.

Furthermore, those absent for 2 years and who are unable to demonstrate ‘strong ties’ could find their ILR status revoked. Such a decision would have to be challenged from overseas - a potentially costly legal exercise where the appellant would be absent from the court and unable to given evidence in person.

What will be necessary to prove a strong tie? A house, wife, children, other relatives, financial ties, children, business, friends - the list goes on. Maintaining the majority of your estate in the UK and being able to evince a clear intention to return will be essential. In practice, a combination of all of the above factors, backed by evidence, will be necessary.

It is difficult to see how the new revision of the rule will help the Windrush generation or anyone for that matter. Returning resident must now be able to document their past stay in the UK to the satisfaction of an Entry Clearance Officer rather than persuade an Immigration Officer by oral testimony of the merits of their case.

Under the rules that existed prior to 6 July, those refused entry as a returning resident would be able to challenge the decision and give evidence in person in a UK court. This is naturally more compelling than what we now face. How can anyone who has been abroad for more than 2 years be able to provide documentation or prove their case from abroad if denied entry clearance?

How does this rule change assist those caught up in Windrush cases? For those removed it makes no difference and for those absent for more than 2 years it means having to make a visa application, pay a fee and provide evidence to substantiate their case. Who does this be benefit? No prizes for guessing, the Treasury.

The change of rule, however, has removed an obligation for Immigration Officers to examine those seeking re-entry as a returning resident at port. No prior entry clearance as a returning resident, no entry!

Those individuals who hold ILR and intend to live outside the UK for 2 years should seek specialist immigration advice, otherwise they could find that status their status being revoked.

If you would like legal assistance with your application to return to the UK as a returning resident, please contact us via our web site our the contact information above.

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