Returning Resident Visa after 30 years

[stabriz]

Hi All,
My wife had ILR in the UK when she was 9 years old and live there for 2 years, after that the whole family move back to their home country.
Her mother and 3 other siblings (out of 6) live in the UK right now as British Citizen.
My wife was living with her mother until we got married 7 years ago, and then she moved with me to Australia and became an Australian Citizen.
We have travelled to the UK a couple of times (me twice, she 5 times in 7 years).

My question is, will she able to apply for returning resident visa, and whether I can travel with her to the UK with her?

Thanks in advance for your help.

[Jaune08]

Hey, just to be sure:

-What was her nationality when she acquired ILR?
-After she left the UK when she was 11 years old (when her whole family moved back to their home country), has she ever return to live or settle her residence in the UK? Or she exclusively travelled those 5 times as a tourist?

I suggest you to read the Returning Residents Guideline from Home Office. On page 5, section "More than 2 year's absence" it states:

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).
The exception to this was Commonwealth citizens settled in the UK when the 1971
Immigration Act came into force on 1 January 1973. Under section 1(5), they were
protected from losing their indefinite leave from absences outside the UK until 1
August 1988 when section 1(5) was repealed. After this date, any indefinite leave
would be lost following an absence of 2 years or more.
A person who has been absent for more than 2 years must apply for entry clearance
as a returning resident and will be assessed by Entry Clearance Officers under
paragraph 19 of the Rules.

If your wife left the UK while holding ILR after August 1988, then she has lost her ILR status. She must apply as a returning resident.

Further, if you read section Returning Residents, paragraph 19A of Immigration Rules , it states:

A person who does not benefit from the preceding paragraph by reason only of having been absent from the United Kingdom for more than two consecutive years, must have applied for, and been granted indefinite leave to enter by way of entry clearance if, he can demonstrate he has strong ties to the United Kingdom and intends to make the United Kingdom his permanent home.

If your intention is to settle your family in the UK, she must demonstrate she has strong tries to the UK and make it her permanent home. And when she is granted to return as a resident, you will need to apply for a dependent visa (I think in your case will be spouse visa).

[stabriz]

Thanks, Jaune for your reply. Here is the answer to your question

What was her nationality when she acquired ILR?

her resident was Bangladeshi when she acquired ILR.

After she left the UK when she was 11 years old (when her whole family moved back to their home country), has she ever return to live or settle her residence in the UK? Or she exclusively travelled those 5 times as a tourist?

she only returned to the UK as a visitor after that time, she applied to Returning Resident visa once 11 years ago while she was in the UK, but the home office refused the application ask her to apply from Bangladesh. She never applied after that, as her parents were sick and she was the only child left taking care of them, and she got married after that.

Just to be clear whether having family members (mother, brother, sister or half of the family members) is enough to show strong ties, both of us do not have any close family members living in Australia, neither we have any kids. One of her cousins had a similar situation and able to get returning resident visa after 18 years, but he has a house in the UK.
And also do we have to apply for the spouse visa, after she travelled to the UK or it can be done just after she is granted with returning resident visa, basically I would like to travel with her. I might be able to shift my job to the UK and able to show that I will not require any public funding.

[vinny]

Unfortunately, her subsequent visitor status normally prevents her from being a returning resident, as 18(i) fails.

[stabriz]

Unfortunately, her subsequent visitor status normally prevents her from being a returning resident, as 18(i) fails.

Thanks, Vinny
I also checked paragraph 19.

A person who does not benefit from the preceding paragraph by reason only of having been absent from the United Kingdom for more than two consecutive years, must have applied for, and been granted indefinite leave to enter by way of entry clearance if, he can demonstrate he has strong ties to the United Kingdom and intends to make the United Kingdom his permanent home.

So I am checking whether having more than half of the family members living in the UK, is enough to show strong ties or not. I also know that someone was able to get the returning resident visa, even he had travelled to the UK as a visitor.

Also, it will help if anyone can explain me the paragraph 20 in plain English please, I was unable to understand the context.

The leave of a person whose stay in the United Kingdom is subject to a time limit lapses on his going to a country or territory outside the common travel area if the leave was given for a period of six months or less or conferred by a visit visa. In other cases, leave lapses on the holder remaining outside the United Kingdom for a continuous period of more than two years. A person whose leave has lapsed and who returns after a temporary absence abroad within the period of this earlier leave has no claim to admission as a returning resident. His application to re-enter the United Kingdom should be considered in the light of all the relevant circumstances. The same time limit and any conditions attached will normally be reimposed if he meets the requirements of these Rules, unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain.

[vinny]

19

A person who does not benefit from the preceding paragraph by reason only of having been absent from the United Kingdom for more than two consecutive years, must have applied for, and been granted indefinite leave to enter by way of entry clearance if, he can demonstrate he has strong ties to the United Kingdom and intends to make the United Kingdom his permanent home.

Implies that they may disregard 18(ii). Unfortunately, it doesn’t say that they will also disregard 18(i).

[gertchin]

I know several people in similar situations who were settled in the UK before 1973 and then went abroad as adults (or as minors with their parents) for extended periods. When they tried to return to the UK from Nigeria, they were denied visas despite having ILR. Unfortunately, some of those who went to Nigeria as minors did not have their own passports so it is proving difficult to get evidence of their lives in the UK. Those that did get visas were only allowed to stay for 6 months and employment was prohibited despite the fact that some had lived in the UK for decades and had been working. They have now applied under the Windrush Scheme but some have been refused Returning Resident visas or NTL BRP under this Scheme. What I am confused about is the 2-year absence rule, repeal of section 1(5) of the Immigration Act 1971 and LTERO 2000. How do they all fit together? I cannot see anything about 2 year absences until LTERO 2000 and they were being refused way before 2000. If these people had remained in the UK, they would have been eligible to register as UK citizens so how can they be refused under the Windrush Scheme, which is supposed to provide redress for those exiled by changes in immigration laws over the years? Sadly, others that I know have now died without rejoining their families in the UK or being able to claim their UK pensions. Nobody is helping those Windrush applicants in Nigeria or other countries who are stuck abroad. I need clarification on this 2-year absence rule.