ILR returning to UK within 2 years told to re-apply

I am a British national and have just returned to the UK with my wife (who has ILR) and daughter (who has British nationality) after spending a total of 1 year and 8 months overseas. We will now be staying in the UK permanently.

The UKBA rules on "Returning residents" state that:

"If you were settled in the United Kingdom when you last left, you have not been away for more than two years, and are returning to live here permanently, you may return as a resident unless you were given public funds to pay the costs of leaving the United Kingdom."

However, at airport immigration today my wife was told that she would have to re-apply for ILR, because when we returned to the UK for a month during the summer she was (unbeknown to her) granted entry as a tourist as opposed to as a spouse with ILR.

I'm now not sure where we stand. Her ILR certificate is in her old passport, but she always carries both passports with her. Has immigration made a mistake? Or does the rule quoted above not apply in this case?

Anyone know what our best course of action would be from here?

Just to recap on events:

2004 - married in UK
2006 - received ILR status
March 2008 - left UK (with ILR status)
July 2009 - returned to UK (unwittingly granted Tourist status)
August 2009 - left UK (assuming ILR status is intact)
November 2009 - returned to UK (informed ILR status is no longer intact)

ILR may be lost if a person leaves the United Kingdom and on return is given leave to enter other than for an indefinite period. This may be because, e.g., they mistakenly seek to enter as a visitor, or the immigration officer believes that they do not intend to reside in the United Kingdom.

ILR may also be curtailed by the Home Secretary for reasons of national security or if the holder of the ILR commits an offence that could lead to their deportation from the United Kingdom

A person may also lose ILR by leaving the United Kingdom for more than two years. However, in some circumstances, such a person may reapply for indefinite leave to enter the UK.

British Overseas citizens, British subjects and British protected persons do not lose ILR no matter how long they stay outside the UK.

She lost ILR becuase she started to live outside the UK for long periods at a time and therefore when she came to the UK not to live permanantly but to vist for a month, she was regarded as a visitor and not a permanant resident so she lost her ILR. If she was coming to the UK to live permanantly again, then she may have retained her status.

Her only option is to re-apply. this is why becoming a british Citizen is so much more convinient than staying on ILR.

joh118 wrote:ILR may be lost if a person leaves the United Kingdom and on return is given leave to enter other than for an indefinite period. This may be because, e.g., they mistakenly seek to enter as a visitor, or the immigration officer believes that they do not intend to reside in the United Kingdom.

Thanks for your speedy response. The above paragraph is the only one that could be relevant to our case. Is there any recommended course of action we might take to explain this situation to the home office without having to start the whole ILR application process again from square 1? (I'm not even sure where to begin given the far-from-transparent nature of the Contacts page on UKBA's website.)

Edit: Just read the addition to your post which seems to answer my question.

Assuming that is the case, would she then have to go right back to the beginning and request LLR status?

If she was settled in the United Kingdom when she last left, she has not been away for more than two years, and is returning to live here permanently, she may return as a resident unless she was given public funds to pay the costs of leaving the United Kingdom.

If she has been away for more than two years, she may still qualify to return to live in the United Kingdom if, for example, she may have strong family (eg parents & siblings all live in uk) ties here or have lived here most of her life.

If she has been away for more than two years, you must apply for permission to return, known as entry clearance. she should do this at the British diplomatic post in the country where she lives now. The entry clearance will be in the form of a visa or entry clearance certificate.

As she lost her ILR by entering as a visitor, she must now leave the UK, and either apply for a FLR or ILE (indefinate leave to enter). ILR is not available to be obtained as a visitor. If she entered the United Kingdom in a different category (for example, as a student), she may be allowed to switch into the category of husband, wife or civil partner if the UKBA have given her a total of more than six months' permission to live here since her most recent admission to the United Kingdom. This permission must have been given in accordance with the Immigration Rules, not 'exceptionally' (outside the Immigration Rules). For example, if they gave her permission to enter for three months and then permission to remain for five months, you have been given a total of eight months - which means she can apply to switch into the category of husband, wife or civil partner.

So basically she can either re-apply for a marrige visa or she can try to re-apply for ILR. But as these cases are very uncommon, I think you'll need an immigration lawyer/solicitor/ advisor

teatree wrote:at airport immigration today my wife was told that she would have to re-apply for ILR, because when we returned to the UK for a month during the summer she was (unbeknown to her) granted entry as a tourist as opposed to as a spouse with ILR.

As your wife has ILR stamp in her passport, and there is no other type of visa sticker affixed on her passport, how is it being concluded that the entry was granted as tourist visa? Any evidence was provided to show if the entry was granted as tourist visa?

Jk2007 wrote:

teatree wrote:at airport immigration today my wife was told that she would have to re-apply for ILR, because when we returned to the UK for a month during the summer she was (unbeknown to her) granted entry as a tourist as opposed to as a spouse with ILR.

As your wife has ILR stamp in her passport, and there is no other type of visa sticker affixed on her passport, how is it being concluded that the entry was granted as tourist visa? Any evidence was provided to show if the entry was granted as tourist visa?

No evidence was given. She was just told when entering the country yesterday that during her summer visit she'd been allowed entry as a tourist and therefore her ILR has been withdrawn. She was never given any indication at the time that her status was changing or that her ILR would be withdrawn.

They dont have to tell you that your status is being changed. when she entered ukba would have stamped her passport as "leave to remain for 180 days" etc. That is an indication that she was admitted as a visitor. The easiest way around this problem would be to exit UK and then re apply as a returning resident.

If she had been previously admitted as a visitor, then she cannot apply as a returning resident. However, she should have been notified at the time when they were changing her status.

Ask the UKBA to correct the visitor endorsement error and reinstate her ILR.

Hi, I am so glad I found information on this topic. My husband is American (got ILR in 2006) I am English and we have a dual citizen daughter. We lived in the UK until February 2010 when we came to USA. We returned in December 2011 (within 2 years) for 2 weeks, and went through the British Passport control as a family, at this time I think they stamped my husbands passport with a visitor visa (it is very faint so not 100%). We are rturning to the UK in August permenantly, and I am so confused about whether the ILR still stands or not. I don't want to take any chances but my husband has not been out of the UK for a 2 year period.

We were not and have not been notified that ILR was revoked. I have contacted Worldbridge a number of times but they keep giving me contradictory standard responses, first 'if he hasn't been out of the country for 2 years he should be fine), and then 'his ILR would have been revoked if he has a visitor stamp.

Any help would be much appreciated.
Thanks

rachococo wrote:Hi, I am so glad I found information on this topic. My husband is American (got ILR in 2006) I am English and we have a dual citizen daughter. We lived in the UK until February 2010 when we came to USA. We returned in December 2011 (within 2 years) for 2 weeks, and went through the British Passport control as a family, at this time I think they stamped my husbands passport with a visitor visa (it is very faint so not 100%). We are rturning to the UK in August permenantly, and I am so confused about whether the ILR still stands or not. I don't want to take any chances but my husband has not been out of the UK for a 2 year period.

We were not and have not been notified that ILR was revoked. I have contacted Worldbridge a number of times but they keep giving me contradictory standard responses, first 'if he hasn't been out of the country for 2 years he should be fine), and then 'his ILR would have been revoked if he has a visitor stamp.

Any help would be much appreciated.
Thanks

returning to the UK for two weeks for a visit to break up the two years does not mean that he has not been away from the UK for two years in the context of the rules on returning residents.

If he has been given a leave to enter as a visitor then usually this would override his ILR. What did your husband state as to his intentions for example on his landing card and to the immigration officer when he sought entry? Did he present his ILR to the immigration officer?

See also Returning Residents

On entry I had all the families passports together and the man on the desk didn't ask any questions. I didn't think to say anything specific as we were all going through the British control, which we were told was only allowed when ILR was issued. In hindsight I should have explicitly pointed this out, but I didn't realise.

I can't remember what we put on the boarding card, I imagine the truth, spending Christmas with family. I wish I had known the importance before. However, I just want to create an action plan so our return to the UK in August is smooth. Is there a way we can check if the ILR is revoked? If it has been what what be the best course of action?

Thanks so much.