UK Immigration Case Clarifies Rules for Returning Resident Visa Applicants

Recently in the case of R (on the application of B) v Secretary of State for the Home Department (recording of leave – date stamps) IJR [2016] UKUT 135 (IAC) the Upper Tribunal clarified that Applicants with Indefinite Leave to Remain (ILR) must ensure they have the right to enter the UK after being away for more than two years. If you are an Applicant and you have been outside the UK for more than two years it is a good idea to seek legal advice to ensure that you have the right to enter the UK and whether you can make an application to restore your indefinite leave to remain in the UK.

Facts of the Case

The Applicant was a Libyan national who had been granted ILR in 2002 and had been issued a Home Office Travel Document (HOTD) which was set to expire in 2014. The Applicant left the UK in 2009 and upon his entry back to the UK in 2013  The Entry Clearance Officer (ECO) allowed him to enter and stamped his travel document with an open date stamp.  In February 2014,  he applied to the Home to transfer the “no time limit” stamp in his HOTD into his Libyan passport. The application was refused because he had failed to present his passport upon entry which may have led to the discovery that his travel document was no longer valid because he had obtained a passport in 2009. This led to the applicant making a judicial review application to the Upper Tribunal.

The Tribunal in dismissing the application for judicial review found that he did not have indefinite leave to remain or indefinite leave to enter the United Kingdom and refused to declare ILR sought by the Applicant.

Upper Tribunal Comments;

On the facts of this case, however, I find that the applicant can derive no benefit from the date stamp that Ms Rogers placed in his invalid HOTD. Unlike the applicants in Badaike and Ram, the present applicant cannot be said to have acted in a blameless manner. On the contrary, as I have found, the evidence he has himself seen fit to adduce reveals him, by his actions, to have fundamentally misrepresented his immigration position to Ms Rogers. That misrepresentation operated so as to cause her, mistakenly, to treat the applicant as a resident returning to the United Kingdom, who was entitled to enter by virtue of paragraph 18 of the immigration rules. She did not consider she was doing anything else. She certainly did not think she was exercising any discretion in the applicant’s favour under paragraph 19, which is the proposition for which the applicant contends.

It can be argued that based on the Upper tribunals comments that a blameless Applicant like the applicants which the tribunal refers to in the cases of Badaike and Ram , may have been able to derive a benefit from the no time limit stamp which the ECO had placed in his HOTD. however on the facts of this case, the Applicant could not be said to have acted in a blameless manner and therefore could not derive a benefit from it. It is always a good idea for Applicants to mention all material information to the Entry Clearance Officer at port so that it does not appear that you are trying to mislead the ECO.

Returning Resident UK Visa Requirements

The Applicant above was relying on his returning residents rights, which states in order to return and settle in the UK you can apply for a Returning Resident visa. You are only eligible for this visa if you have previously been granted indefinite leave to remain and have not been away from the UK for more than two years.

You are eligible for this visa if:

  • You plan to return to live in the UK permanently
  • You have been settled in the UK when you last left
  • You have been away for more than 2 years
  • You have not been given public funds to help you leave the UK

Other requirements, you must prove that you have strong ties to the UK. Such as family, friends and proof that you have lived in the UK for the majority of your life.

To avoid the disappointment that this family have experienced it is important that you are getting the right legal advice to guide you through the UK’s immigration policy. To find out whether you are eligible for this UK Returning Resident visa we can arrange for you to have a detailed consultation with one of our expert Immigration Solicitors. If it is found that you are not eligible it does not mean that you cannot come to the UK, our Immigration Solicitors will explore all of your UK visa options.

Successful Returning Resident Visa Applications

Our team of solicitors and barristers bear in mind the paramount duty of all legal representatives to act in your best interest whilst complying with the strict letter of the law. Our team of specialists can be distinguished from other law firms with our client tailored approach and scrutiny of options available to you from the outset. We will be able to advise you in respect of the merits of your application by providing you with advice from our leading team of barristers before your matter even reaches the Home Office.

If you have instructed legal representatives and you are unhappy with their conduct you can contact us to discuss your case so that we can provide you with a case assessment. To contact one of our Immigration Solicitors or Immigration Barristers please complete our legal case assessment form and we will get in touch or call us now on 02071830570 for a telephone assessment.

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