The Coronavirus pandemic has caused severe disruption to worldwide travel. One example is how holders of indefinite leave to remain who have been abroad for an extensive period of time are now facing the real prospect of losing their right to remain indefinitely in the United Kingdom.
The Immigration Rules states:
- A person who has been absent from the UK for less than 2 years will retain their indefinite leave and does not need to apply for entry clearance before resuming their residence in the UK. Border force officers will assess whether a person can be admitted for entry
- A person who has been absent from the UK for more than 2 consecutive years, will automatically lose their indefinite leave as a matter of law. This is set out in paragraph 20 of the Immigration Rules and in Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 (LTERO)
According to the Home Office’s guidance: Returning Residents | Version 3.0:
- Some applicants will have been prevented from returning to the UK in 2020 and 2021, due to travel restrictions in place relating to the COVID-19 pandemic. In some cases this will have resulted in their indefinite leave lapsing.
- You should consider whether travel restrictions after 24 January 2020 resulted in unintended absences from the UK. Where you assess someone had intended to return to the UK before their leave lapsed but were prevented from returning by travel restrictions, you should consider this as an additional factor supporting a grant of entry clearance.
It is advisable for holders of Indefinite Leave to Remain who have been absent for a significant period of time to bear in mind the rules concerning extended absences should they wish to return to the United Kingdom in the future.
It is particularly important for applicants who have struggled to return to the United Kingdom due to travel restrictions to retain any evidence which demonstrates their intention to return to the United Kingdom before their leave lapsed, but for the pandemic.
Examples of evidence may include (but are not limited to):
- Official papers demonstrating that you were unable to travel.
- Cancelled flight arrangements.
- Evidence of your attempts to liaise with the UKVI.
- Specific information which demonstrates you travelled at the earliest opportunity and could not reasonably travel prior.
- Any other paperwork which may demonstrate that you had intended to return to the United Kingdom but for the travel restrictions.
The Home Office state that absences due to COVID-19 will count as an additional factor supporting a grant of leave of entry clearance.
The Private Client team at Branch Austin McCormick provide expert legal advice to clients who are facing issues with returning to the United Kingdom as a result of the pandemic. If you have any questions or concerns regarding your return to the UK, please contact us for advice and to discuss your specific case.
