The newly amended Immigration Rules states:
Rule 19(b) test
These are the different elements of the legal test:
1. “[…] having been absent from the United Kingdom for more than two consecutive years […]”
The explanatory memorandum to the recently amended legislation stated:
This means: do you have a consecutive two year period outside of the UK in the past, i.e when you left the UK. You need to identify at what point you reached the two year absence point.
2. “[…] who, after having indefinite leave to remain in the United Kingdom, had permission as a visitor when they last left […]”
Did you have permission as a visitor when you last left the UK? This may have been automatic permission if you were a non-visa national.
3. “[…] providing they have not had temporary permission in another route between the point where their indefinite leave to enter or remain lapsed and their permission as a visitor was granted […]”
“Another route” here is referring to temporary permission in a route other than as a ‘visitor’. So, can you confirm that since accruing your 2 years’ absence, you have not had temporary permission in a route other than as a visitor (e.g. including automatic permission as a non-visa national)?
4. “[…] can demonstrate he has strong ties to the United Kingdom […]”
You should have a statement with details to back this up.
5. “[…] intends to make the United Kingdom his permanent home […]”
Do you intend to make the United Kingdom your permanent home? This should also be addressed and backed up in the Statement.
6. “[…] now seeks admission for the purpose of settlement […]”
By making this application, you are seeking admission for the purpose of settlement.
7. “[…] must have applied for, and been granted, indefinite leave to enter by way of entry clearance […]”
This means if you have satisfied the previous points and made an application, then you must be issued indefinite leave to enter by way of entry clearance. The Returning Residents Guidance, version 5.0 published for Home Office Staff on 12 April 2023 confirms this:
Article 8 ECHR (family life)
I would suggest making an article 8 application in most cases. This would typically involve you saying (if it was the case) that denial of your application would result in a disproportionate interference with the right to a family life for:
- (i) You; or
- (ii) Your spouse; or
- (iii) Your child or children.