Can ILR be cancelled while a person travels outside the UK?

[ukswus]

I am interested in part 9 of the immigration rules, specifically section

"Grounds on which leave to enter or remain which is in force is to be cancelled at port or while the holder is outside the United Kingdom"

http://www.ukba.homeoffice.gov.uk/polic ... les/part9/

Consider, for example, item 321(4A):

(4A) Grounds which would have led to a refusal under paragraphs 320(2), 320(6), 320(18A), 320(18B) or 320(19) if the person concerned were making a new application for leave to enter or remain.

Item 320(18A) is "within the 12 months preceding the date of the application, the person has been convicted of or admitted an offence for which they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record".

Suppose a person who already obtained ILR got a non-custodial sentence (eg fine for speeding), and one month later travels abroad for short holidays. Can their ILR be cancelled based on 321(4A)? This seems grossly unfair and illogical to me, but I cannot see how the rules can be interpreted otherwise?

[vinny]

If "seeking leave to enter" in 18 is considered as "making a new application for leave to enter" in 321A(4A), then refusal under 321A(4A) is possible. However, 20A states that leave exceeding 6 months does not lapse. So perhaps "seeking leave to enter" cannot be considered as "making a new application for leave to enter".

If refused, then there should be an in-country right of appeal.

[ukswus]

If "seeking leave to enter" in 18 is considered as "making a new application for leave to enter" in 321A(4A), then refusal is possible. However, there should be an in-country right of appeal.

Thank you for your response. If I understand correctly, item 18 refers to the category of returning residents, while I am more interested in people with ILR who went away for a short holiday (say a week or two), while still maintaining their residence/employment in the UK. Can 321A(4A) still apply to them? I don't see a clear qualification in the immigration rules which states otherwise.

[vinny]

ILR holders are subject to the Returning residents provisions.

[ukswus]

ILR holders are subject to the Returning residents provisions.

In other words, each time a person with ILR comes back, they are treated as returning residents?

This looks like a very grey area to me. In principle, if ILR can be so easily cancelled just because a person with a recent minor criminal record (eg fine or reprimand) travels abroad for work/holidays, at least they should be aware of the risk they are taking. What makes this especially disproportionate is that if a person is inside the UK, the ILR can only be revoked (and removal proceedings initiated) under very limited circumstances, eg fraud/deception which was material to obtaining grant of ILR, or because of more than 12 months conviction which makes a person subject to deportation.

Having the discretion to cancel ILR just for a speeding fine/non-payment of fare and suchlike, as long as a person travels abroad, just doesn't make sense to me.

[vinny]

I had edited my post:

However, 20A states that leave exceeding 6 months does not lapse. So perhaps "seeking leave to enter" cannot be considered as "making a new application for leave to enter".

[ukswus]

I had edited my post:

However, 20A states that leave exceeding 6 months does not lapse. So perhaps "seeking leave to enter" cannot be considered as "making a new application for leave to enter".

Yes, I noticed that (especially the word "perhaps"), that's why I wrote that it seems like a very grey area, subject to discretion/interpretation.

[vinny]

All the rules are subject to interpretation.

[ukswus]

All the rules are subject to interpretation.

True, except that it's very clear what the grounds for losing ILR are for people inside the UK, as opposed to those who need to travel.

By the way, I am not quite clear what is the point of calling ILR holders as "not subject to immigration control", if there is indeed a discretion to deprive them of ILR so easily. At the very least, I think ILR holders with minor convictions should be aware of the risk they are taking before they travel. Then again, I haven't heard any stories where this potential discretion was exercised, so maybe it never happens in practice.

[peppekalle]

All the rules are subject to interpretation.

True, except that it's very clear what the grounds for losing ILR are for people inside the UK, as opposed to those who need to travel.

By the way, I am not quite clear what is the point of calling ILR holders as "not subject to immigration control", if there is indeed a discretion to deprive them of ILR so easily. At the very least, I think ILR holders with minor convictions should be aware of the risk they are taking before they travel. Then again, I haven't heard any stories where this potential discretion was exercised, so maybe it never happens in practice.

It is not easy to revoke ILR.It can be revoked if someone has been sentenced to 12 months or more and the state decides your presence is not wanted for the public good.

If some has minor convictions i won't worry about it .But i strongly advice obey the law.I doubt if the immigration officers have criminal records showing on the screen when they scan your passport.

ILR is like"lame british passport" you are like a citizen of the country but have not yet been issued with the red book.