KM,
Soma hii article na niambie kama unaamini mtu kama Ballali ingelikuwa hapa UK angeshindwa kuendelea na PR yake:
When is 'indefinite leave to remain' not 'permanent'?
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THIS week, we will discuss an issue raised by an anxious Max who e-mailed from Harare. Max is currently in Zimbabwe where he has been valiantly battling to run a transport business for the past 3 years.
Apparently, due to the economic meltdown in Zimbabwe, the business is literally going nowhere and Max's dream of becoming a transport baron is rapidly turning into a nightmare. Five articulated trucks shipped with cheerful optimism from these shores have rapidly reduced to one forlorn and rusted wreck lying on its back somewhere in the sands of the Zambezi valley. Max wrote to enquire whether he can now return to the UK on the back of his Indefinite Leave to Remain (ILR) in the UK which he obtained in 2003.
The very basic answer is ‘no'. There are exceptions of course, and we will explore them here but generally under the ‘returning residents' rule, Indefinite Leave to Remain (ILR), also called permanent residence or ‘settlement' lapses after more than 2 years absence from the UK. Permanent is not so permanent after all and on the face of the facts, it appears that Max has since lost his ILR because of his absence from the UK for more than 2 years.
So what are the exceptions which Max could rely on? First, lets briefly look at how ILR is obtained. The UK generally grants ILR after 4 years' legal and continuous residence in a range of immigration categories, including asylum since 30 August 2005. Sometimes ILR is granted more quickly, for example after 2 years of marriage to a person settled in the UK. We have also discussed on this column the other categories such as unmarried partners and victims of domestic violence where in appropriate cases, ILR can be granted after 2 years. On the other end of the spectrum of course, ILR may be obtained under the ‘long residence' rule (after 10 years legal residency, or after 14 years of illegal residency in the UK), or the 7-year children concession (whereby children under 18 who have spent 7 continuous years in the UK will be granted Discretionary Leave with their families, regardless of their parents' immigration status).
The ILR visa is coveted primarily because it has no immigration related restrictions on the type of work or business a person on this visa class may undertake. It also clears the way to a host of benefits and tax relief schemes. It is of course also the first major step towards British nationality for those who are so inclined.
Once obtained, ILR may be lost or revoked by the Secretary of State in very limited circumstances. For our discussion, ILR can be lost after 2 years absence from the island. Generally however, a person with ILR can go away and return to the UK as a returning resident if he;
(i) had indefinite leave to enter or remain in the United Kingdom when he last left; and
(ii) has not been away from the United Kingdom for more than 2 years; and
(iii) did not receive assistance from public funds towards the cost of leaving the United Kingdom; and
(iv) now seeks admission for the purpose of settlement (as opposed to a short visit).
Where a person does not benefit from the above by having been away from the United Kingdom for far too long, they may nevertheless be admitted as a returning resident under the exceptions found in Rule 19 of the Immigration Rules.
Rule 19 allows for a person who like Max, has been absent from the UK for more than 2 years to be issued entry clearance as a returning resident if they show that they have lived in the UK for most of their lives. Paragraph 19 is therefore a lifeline to those persons who have ties with the UK which merit admission even if they have been absent from the UK for longer than two years.
There are some critical factors which the Entry Clearance Officer will consider in assessing whether strong ties exist. These include:
* the length of the original residence in the UK (before he left the UK);
* the time the applicant has been outside the UK;
* the reason for the delay beyond the 2 years - was it through their own wish or no fault of their own (e.g. having to care for a sick or elderly relative)?;
* the reasons for leaving the UK and for now wishing to return;
* the nature of the family ties in the UK;
* how close are they and to what extent have they been maintained during the absence?
* do they have a home in the UK and, if admitted, would they remain and live there?
The longer a person has remained outside the UK (over 2 years), the more difficult it will be for them to qualify for admission under this provision. The longer the previous residence in the UK, the stronger the case for consideration, provided that there had not been a break in residence which extended over a number of years. Generally, the pattern of absences as well as the duration of absences will be considered by the Entry Clearance Officer (ECO). Continuity of residence in the UK would not be regarded as broken by a small number of short absences abroad of up to 6 months at any one time. Such short absences cannot be said to disrupt or sever ties with the UK, and would normally be ignored unless such trips were frequent. Where they were, the reasons would be requested. The applicant, like our man, might have business overseas, or might be maintaining family ties abroad.
Other more specific circumstances which would support an application are travel and service overseas with a particular employer before return to the UK with the employer; service abroad for the UK Government, or as a dependant of a member of H M Forces or as an employee of a quasi-governmental body, a British company or a United Nations organisation; employment abroad in the public service of a friendly country by a person who could not reasonably be expected to settle in that country permanently; a prolonged period of study abroad by a person who wishes to rejoin the family in UK on completion of studies; prolonged medical treatment abroad of a kind not available in the UK.
In these situations, the 2 year rule might be waived. Max's options will therefore depend very much on whether the above factors apply to him.
There is of course nothing to stop Max from seeking admission to the UK in another capacity other than that of a returning resident.
Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at
profettaffy@yahoo.co.uk
