Returning Resident Question

Anyone here apply as a Returning Resident?  I want to do this but I fall outside of the two year limit.  BUT - I do meet many of the other requirements - I've lived most of my life in the UK (35 years) and I still have very close ties to family there.  (And a few other things).  Do you think I'd have a shot?  Or are they REALLY REALLY strict on this?

This is a grey area question. I recommend consulting a solicitor and spending money if you are serious about it. How far over the two year limit are you? I have heard of a procedure whereby you can request advance waiver through the consulate of excesses over the two year limit. That being said, I have personally met a woman in your situation who practically grew up in the UK (she spoke with an English accent), but who was attending college in the US. When she came to the UK for a visit, the immigration officer cancelled her indefinite leave and said she was no longer a returning resident.

Thus, it is a tricky issue and not a breezy do-it-yourself-er. I recommend legal advice per a good immigration solicitor and I can recommend one. He is very expensive.

I need more information really.

Do the circumstances for your getting ILR still exist? 

I know of a guy who moved back to the US with his British wife, after they lived in the UK for 14 years,, and then move backto the UK, after living in the US for 5 years. It was a quick one day visit to the Embassy to reinstate his ILR. 

If you circumstancnes for having recieved ILR have changed, I don't know if you can reinstate it. Definately a question for those who have more expirence than I do.

Yikes!  That's not good news.  Sadly I'm not able to afford a  solicitor.  At least I don't think so - what range are we talking in terms of cost?  (Perhaps you can message me privately?)

I've heard lots of conflicting information on this and am quite concerned about proceeding if I'm going to be denied my visa.  I don't want to be kept out of the country even for visits- my family is still there.
It's strange, because the requirements look so straight-forward on the UK's immigration and visa websites.

I've been out the UK for almost 4 years now, but I did spend 35 years in the UK prior to moving to the US.  I grew up there.

Do you have any claim to British citizenship through your parents?  Might be easier to apply for a British passport if that's an option at all.  You say you have family there, so I just wondered if that might be the easiest solution?

Good idea, but they're all from the R.O.Ireland.   Could apply for that, though.  But I'm planning on moving there by the end of the year and an Irish passport will take AT LEAST 6 months.  If nothing else, that'll have to be the route I take - even if it makes things really difficult, I guess.  Better that than risk being denied.  I want to do everything 100% on the level (of course  )

First of all - the Returning Resident issue won't keep you out for visits if your family is here. That shouldn't be the case. But really what you should do is regularise your citizenship to take advantage of the fact that you are (most likely) already a citizen of the Republic of Ireland, and have always been so, if your parents were born in Ireland. Did you know that?

I have copied the relevant Immigration Rule below. Please note that it is discretionary - the Immigration Service does not HAVE to apply section 19 (below) in any individual case, they only "may" do so. In the case of the woman I met (she was actually a waitress in a nice restaurant in Washington DC, in fact), the officer she happened to deal with that day was being a ******* and decided to really stick it to her instead.

This is none of my business, but are you planning to sponsor someone else to immigrate with you as well when you come? Because if you are, then that's even more reason to do the Irish passport thing!

Believe me, the Irish passport (even if it does take 6 months) is an iron clad residence status in the UK and can never be questioned again. It's absolutely worth the extra hassle.

Here's the UK Immigration Rule:

18. A person seeking leave to enter the United Kingdom as a returning resident may be admitted for settlement provided the Immigration Officer is satisfied that the person concerned:

(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.

19. A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long may nevertheless be admitted as a returning resident if, for example, he has lived here for most of his life."

Ahhhhh.  I didn't know that section 19 wasn't a (fairly) sure thing.  I figured things would be cool  since I could prove "long time residence" as prescribed in section 276B - C (see below).   I DO plan to come with my other half, so I would be a sponsor as well.  We may just have to apply for the Irish passport and wait.  Or pehaps we can arrange a visit home and I can apply when I'm there.

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i)
(a) he has had at least 10 years continuous lawful residence in the United Kingdom; or
(b) he has had at least 14 years continuous residence in the United Kingdom, excluding any period spent in the United Kingdom following service of removal directions under paragraphs 8, 9, 10 10A, 12, 13 and 14 of Schedule 2 of 1971 Act or section 10 of the 1999 Act, or a of a notice of intention to deport him from the United Kingdom; and

(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) previous criminal record and the nature of any offence of which the person has been convicted; and
(f) compassionate circumstances; and
(g) any representations received on the person's behalf.

276C. Indefinite leave to remain on the ground of long residence in the United Kingdom may be granted provided that the Secretary of State is satisfied that each of the requirements of paragraph 276B is met.

pwill:

276B is a provision allowing, in exceptional circumstances, people who would not otherwise qualify for indefinite leave to remain to get it. It is for long-term illegal immigrants, for example. The important distinction is that it presupposes that your 10 or 14 year period in the UK is contiguous with the time of your application - i.e. you apply from the UK and the "look back" is 10 or 14 years from the date of application. In your case, they would "look back" and you would be out of the country for the last 4 years. I think you would be disqualified on that basis.

Your situation is really a different one - you already HAD indefinite leave, but you were out of the country too long. The way I see it, the ONLY question in your case is whether sec. 19 applies and whether they will exercise discretion in your favour.

Sec. 19 is discretionary. I think the factor that you may be wanting to sponsor someone at the same time could weigh against you. On the other hand, you may be ok, but it could be a hassle. Like I said originally, I think this is a gray area question. Talk to a solicitor.

Note that one poster's information dealt with a situation where the American spouse had a British wife and they gave him the returning resident stamp despite his being in the US for more than 2 years. This is not really comparable, because having a British wife basically means he could have come in with a spousal visa anyway. So they just gave it to him. In your case, on the other hand, it looks like they have a chance to deny you. In addition, you also want to sponsor someone else for immigration. So they would get to deny two at once!

As you appear to be an Irish citizen anyway, if I were you I would just push hard to get the Irish passport. I don't really understand why it should take 6 months, because according to the information on the Irish embassy website, if one of your parents was born in the Republic of Ireland, and you have your and their long form birth certificate as well as their marriage certificate to prove it, your Irish citizenship is automatic (from birth). It does not require the "foreign register of births" rigamarole. You are entitled to the passport, full stop. Can you go to the Republic of Ireland, get your documents together, and apply there in person for the passport? In London UK passports has a fast track passport service whereby you book an appointment, go with your documents, and your passport is ready for collection the next day. Ask a solicitor in Ireland whether it can't be done more quickly. There are usually a few ways around bureaucratic hurdles.

Is it the Irish consulate in the US that says it will take 6 months?

Wow misch, thanks.  That totally makes sense.  I was trying to figure out why I've been seeing so many conflicting reports on the whole thing.  I agree that the Irish citizenship is the best way to go - and I totally know I qualify (my brothers already have their passports).  It most definitely the 6-month factor that is holding me back.  I called Dublin and they told me that 6-8 weeks is what it should take - and they were baffled at the 6 months I was told by the consulate here.  I'll have to make some more inquiries into that, but perhaps a visit home could be arranged - then I could apply there.

Jemima, my intention was always to return to the UK with my other half.  It was just easier when we met for me to go the US since I'm an American by birth.  Now we want to return the UK for good at Christmas.  But how on earth could one prove they nver intended to give up residence?  I do have family ties in the UK (and a bank account and penion plan) but my life in the US HAD to be fairly permanent - it's difficult to live and work for several years on a temporary basis.

My pleasure, pwill. I hope you keep us posted on what happens.

Are you sure the Irish consulate in the US wasn't perhaps labouring under the false impression that you were applying for citizenship by registration in the register of foreign births thing? That is what so many US citizens do that they probably just always say "takes 6 months" like a broken record. But your case is open and shut because you are already an Irish citizen by birth, since the parents were born in Ireland.  It should be relatively painless for them to just hand over the passport, not involve six months of inquiries.

If you can just go to Ireland and do it there on the spot, it may turn out to be amazingly easy, who knows. Which spousal visa are you going to apply for, married partner or unmarried partner? Because if it's the latter, be careful about not spending too much time apart.

I can help with that one too, I have been through it, as well...

Oh yeah, misch.  I'm certain.      I called San Francisco and Washington and they both assured me it should only take 6 - 8 weeks.  But when I called Chicago back to tell them this the person with whom I spoke was less than helpful and a little more than nasty with me.  She was certain that it will take at least 6 months to process, and when I suggested driving to Chicago or an Expedited service she laughed!      She blames it on being REALLY swamped and have a big backlog.  I'm going to ring the Embassy in Washington tomorrow and see if I have any recourse.  Surely they can't force me to apply in Chicago...just because I fall under their jurisdiction I'm going to be punished?  I need to get this passport in order (hopefully by September) so that we can start the application process for my partner's visa.

I IS going to be an Unmarried Partner visa for my "other half"... and I very interested in your experience.   From what I understand, THIS should be more straight-forward than the Returning Resident thing, right?  I was just a bit concerned because it's a UK visa for an American citizen while I'm on an Irish passport.

Jemima,

No, I believe you're wrong on that one. Perhaps you are no longer up to date.

The current Immigration Directorate Instructions on common law and same-sex partnership visas clearly state:

"This Rule also applies to unmarried partners of European Economic Area (EEA) nationals who are exercising or coming to the United Kingdom to exercise a Treaty right.  Caseworkers should also refer to the ED instructions."

Check it out at

http://www.ind.homeoffice.gov.uk/default.asp?PageId=3994

Ireland is a part of the EEA.

The visa has to be applied for PRIOR to coming to the UK.

In my particular case I was a US citizen in the UK on a work visa. Thus I was not yet "settled" in the UK nor was I a UK citizen at that time. I was merely in a "category leading to settlement", which is the second prong of the unmarried partners visa rule. The visa for my partner was granted.

pwill should consult a solicitor in the UK to allay any doubts.

-Michael

Oh my Gosh... I can't believe I actually typed "I IS"!  Ha!!  I was preoccupied at work at the time, honest. 


Anyway and MUCH more importantly, if that is true Jemima then that is QUITE upsetting to hear!  I have reasearched and researched and the Unmarried Partners Rule as I know it to be is below.  PLEASE someone tell me if I'm right on this one...!

Under the Immigration Rules overseas nationals may seek leave to enter or remain in the United Kingdom with a view to settlement as the unmarried partner of a person present and settled here or being admitted on the same occasion for settlement.

Fiancé(e)s, common-law spouses and same-sex partners are not defined as family members and applications from non-EEA nationals in these categories should be treated under the normal settlement provision of the Immigration Rules. They should not be treated less favourably than they would if the EEA sponsor were a UK citizen.

Michael - Just saw your latest post ... what you say is more in line with what I had thought.  As important as it is, I really don't think that we can afford a solicitor.  Is there someone you know of who we could call and just chat with for free?  (I know that "free advice" and solicitor are not often uttered in the same sentence.)