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I and my children are UK citizens, my wife is S.Korean and had ILR in UK. I have been on international contract for last 4.5 years in China with my family. During that time my family have returned to UK for visits, approx 3 weeks, approx every 12 to 18 months. Has my wife lost ILR? If so, should she apply for Returning Resident Visa before we leave china or can we sort it out when we get to UK? Surely she would not be denied entry?

UKChinaExpat
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  • Have you maintained a residence in the UK? Have you maintained any other ties such as bank accounts, owned property, etc...? – ouflak Apr 26 '16 at 10:29
  • Yes, we have our home in the UK that has been rented out during that time. It is in both our names. Yes, we have always both had UK bank accounts. – UKChinaExpat Apr 26 '16 at 13:53

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According to the rules, she has lost ILR. The issue is whether she was classed as a visitor or a returning resident on each of her returns. You can probably look in her passport and see how it was stamped. It is very likely she was classed as a visitor and in that moment, she lost her ILR. This is especially more likely now as the UK started conducting exit checks last year and one of the key issues they are targeting is the return-briefly-to-maintain-ILR scheme.

You can try to apply for the Returning Resident visa but it is notoriously difficult to acquire. I've never actually heard of anybody getting one. Yes, she could be denied entry. The typical experience in this scenario seems to be that the spouse is allowed in as a visitor with the caveat they must leave within some short period of time to return to their home country and apply to join their family from there. Note: You cannot switch from a visitor to any other visa type in the UK.

If you are going to re-establish a residence in the UK, the 'safest' route is to get as much sorted out as possible before you attempt to return to the UK and apply for (and get) a spouse visa. I think the biggest concern you then face is whether that application can be made from South Korea. I believe the answer is yes, but you may have to contact the local consulate to verify that. In any case, do whatever you can to get that visa in hand (or verify that the ILR is still valid) before you attempt to return.

edit: Here is a link to the official government site of returning residents.

ouflak
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  • Do you have a source/reference/link for those rules? – Gagravarr Apr 26 '16 at 12:09
  • Added the link on returning residents. Let me know if that is sufficient. There are immigration forums that have discussed this scenario though they are bit dated as the spouse visa rules have changed a bit.This has been a source of some frustration, but if handled proactively in time, I believe it can be fairly smooth. – ouflak Apr 26 '16 at 12:30
  • Thanks so much for your comments, though the impact of them is quite shocking. Do you know why it is so hard to get Returning Resident Visa? – UKChinaExpat Apr 26 '16 at 16:04
  • Nobody really knows. It's one of the greater mysteries of the UK immigration system. Personally I think they ought to just cancel the provision if they are going to be that stingy about it. – ouflak Apr 26 '16 at 16:59
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    That said. I wouldn't just give up on this. It is possible her ILR has not been cancelled. Find out for certain as that is the cheapest and quickest route. Second, if her ILR is elapsed, try the Returning Resident application. You have a reasonable case, especially if you have a house to move into immediately and active bank accounts and your move out of the UK was temporary in nature. Lastly is the spouse visa as soon as possible, before you try to return if at all possible. – ouflak Apr 26 '16 at 20:08
  • Thank you once again for your comments. I phoned up the Immigration service today (had to pay) and explained the case. At first it was implied that her ILR may not be cancelled, that the return trips we had made to the UK may have prevented it from passing the 2year break. I'm not completely convinced though. But then I explained that the last trip we made last year, we forgot my wife's old passport with her ILR certificate in it. At the time, we had a few more questions at the Customs gate but I never thought anymore of it. – UKChinaExpat Apr 27 '16 at 07:07
  • But now I realise that they stamped her passport as though she was a visitor. Immediately the advisor then said she will have lost her ILR. This staggers me as they know full well that she has ILR in their own system. We just forgot the old passport. Do they look for opportunities to take it away? Anyway I should not judge too quickly, as they are escalating my case. But I'm suspecting I will have to do RR and possibly the other applications if that fails. – UKChinaExpat Apr 27 '16 at 07:07
  • @UKChinaExpat, "Do they look for opportunities to take it away?" I'm afraid that this is a classic case of the behavior of a few negatively impacting the majority. There have been far too many cases of people acquiring ILR and basically moving out of the UK returning to their home countries to live, coming back once a year (or if they want free NHS treatment) to 'maintain' it. – ouflak Apr 27 '16 at 12:30
  • Eventually many of them might relocate back to the UK years/decades later and try tot acquire citizenship. It has been a sore spot for a long time not only for the UK government, but also for those on ILR who face all sorts of extra unwarranted scrutiny. Among those negative impacts are situations like yours. (Another impact has been cases where a genuine ILR holder might come back from vacation or a business trip and have their passport stamped as a visitor by a jumpy border agent cancelling their ILR.) – ouflak Apr 27 '16 at 12:30