Returning residents – overview Indefinite leave
People with indefinite leave in the UK:
- have no limit on the amount of time they can spend in the UK, and
- cannot have conditions attached to their stay, e.g. their ability to work or claim social security benefits in the UK cannot be restricted for immigration reasons (Immigration Act 1971, ss 1(2), 3(1) (IA 1971)) Conditions of leave.
However, people with indefinite leave enter and stay in the UK by permission and are therefore still subject to immigration control. This control is most frequently experienced when seeking re-entry to the UK as a returning resident, i.e. when returning to resume residence in this country.
Categories of returning resident
There are three broad types of returning resident:
- refugees and holders of UKBA-issued travel documents
- people who can resume residence irrespective of the length of their absence from the UK (of which there are two sub-categories: those who hold certain types of UK passports issued before 1 January 1973; and spouses and partners of serving members of the UK armed forces and government agencies), and
- Those who should return to the UK within 2 years of their departure.
Refugees, stateless people and holders of certificates of travel/identity
People with refugee status in the UK who have been issued with a Convention travel document must be readmitted as a returning resident at any time during the validity of their travel document (UN Convention Relating to the Status of Refugees 1951, Schedule, para 13(1)).
Stateless people issued with a stateless person’s travel document by the UKBA and people with indefinite leave who hold a UKBA-issued certificate of travel/identity must also be readmitted as returning residents within the validity of their travel document (ECG ECB 8.13).
No time limit on return – holders of UK passports issued before 1 January 1973
A summary of the historical context for the regulation of certain holders of UK passports is given in UK Border Agency (UKBA) policy instructions (IDI Chapter 1, Section 3, and Annex M).
People in the following categories who have a UK passport issued in the UK, Channel Islands, the Isle of Man or Ireland before 1 January 1973 should be admitted as a returning resident unless their passport has been endorsed to show that they were subject to immigration control (Immigration Rules, Part 1, para 17):
- British Dependent Territories citizens (Immigration Rules, Part 1, para 16)
- British Nationals (Overseas)
- British Overseas citizens (BOCs)
- British protected persons, and
- British subjects under section 30(a) of the British Nationality Act 1981.
BOCs who hold a UK passport issued anywhere and who satisfy the immigration authorities that they have been given indefinite leave since 1 March 1968 should be given indefinite leave to enter.
UKBA instructions confirm that this provision is extended outside the Immigration Rules to British subjects under the British Nationality Act 1981, s 30(a) and to British protected persons (IDI Chapter 1, Section 3, Annex M, para 1.2).
The instructions also provide guidance on the wording confirming returning resident status normally endorsed in the holder’s passport.
No time limit on return – spouses and partners of serving members of the UK armed forces and government agencies
The spouse or partner with indefinite leave of:
- a member of the UK armed forces serving abroad
- a permanent member of the UK Diplomatic Service or a comparable UK-based staff member of the British Council, or
- a staff member of the Department for International Development who is British or has indefinite leave
Who accompanies their spouse/partner on a tour of duty abroad, should be readmitted as a returning resident even if they have spent more than 2 years abroad.
If such a spouse/partner travels independently, and is away from the UK for more than 2 years, they do not benefit from this provision and may need to obtain fresh entry clearance to return to the UK (IDI Chapter 1, Section 3, Annex K, para 3).
Return within 2 years
Most people with indefinite leave fall into this category (Immigration Rules, Part 1, paras 18, 19). The requirement to return to the UK within 2 years is known as the 2-year rule. However, even people subject to the 2-year rule who are absent from the UK for longer may be readmitted as a returning resident under the Immigration Rules. This provision and the 2-year rule are covered in Practice Note: The 2-year rule and returning for settlement.