ILR 10 Year Long Residence - 18 months of absence

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ILR 10 Year Long Residence - 18 months of absence

Postby esg28 » Thu Oct 28, 2010 2:19 pm

Hi,
I have been residing in the UK for ten and a half years and I am hoping to apply for the Indefinite Leave to Remain visa, given 10 years of long residence. I have had 9 years studying under a student visa and one and a half years working under the Tier 1 post study worker visa. There have been no gaps between any of any of the visas that I have held over the ten year period. However I have found a statement on the UKBA website stating that:

"Continuous residence should be considered to have been broken if the applicant has spent a total of more than 18 months absent from the United Kingdom during the period in question.

Subject to that, continuous residence shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon his departure and return (see Example 1). "

Could someone please clarify what they mean by a total of 18 months absent from the UK. Does this mean that in the entire ten year period they do not expect you to go on holiday for more than 18 months? I believe I have had well over 18 months of holiday during my ten years in the UK (though none of them longer than three months in one go). Will this mean that I am not eligible to apply for the ILR?

Thank you in anticipation!
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Re: ILR 10 Year Long Residence - 18 months of absence

Postby sushdmehta » Thu Oct 28, 2010 2:23 pm

esg28 wrote:Does this mean that in the entire ten year period they do not expect you to go on holiday for more than 18 months?
Yes.


regards
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Postby esg28 » Thu Oct 28, 2010 3:06 pm

Hi,
Thanks for the quick reply. Is there any way that UKBA will use discretion or something along those lines for this 18 months period of absence? Given that most of this holiday time was spent at the start of my 10 year period when I was only 13 and travelling back home to see my parents during school holidays? Or is it pretty much a rule set in stone and I shouldn't really try applying?
Thanks again for your help.
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Postby sushdmehta » Thu Oct 28, 2010 3:12 pm

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Postby avjones » Thu Oct 28, 2010 4:30 pm

A relevant recent Court of Appeal case applies LL (CHINA) [2009] EWCA Civ 617. The facts are qutie similar to yours:

2. The appellant is a Chinese national born on 12 April 1984. She arrived in the United Kingdom on 9 September 1997, thus aged 13, with leave to enter as a student. She obtained successive extensions of leave in that capacity, the last of which expired on 31 October 2007. Before that date she successfully obtained GCSEs, A levels and a BSc in accounting and finance at the London School of Economics. In September 2005 she began a full time course intended to lead to the ACCA accountancy qualification. She has not yet completed this course. Her education here has at all times been paid for out of her own, that is her family's, resources. She attended boarding school in the United Kingdom while of school age and returned to her parents in China in the school holidays.

3. On 10 August 1997, before her student leave finally expired, she applied for indefinite leave to remain on the basis of long residence. That was refused on 9 November 2007 when the appellant was served with a notice of refusal which stated:

"In view of the fact that you were absent from the United Kingdom for more than 18 months between 09 September 1997 and September 2007 it has been decided that you have not had at least 10 years continuous lawful residence in the United Kingdom."


Court of Appeal held she didn't meet the rules, and didn't have an Article 8 (right to private and family life) to protect.
Amanda Jones

I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.
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Postby xyz123 » Fri Oct 29, 2010 1:56 pm

esg28 wrote:Hi,
Thanks for the quick reply. Is there any way that UKBA will use discretion or something along those lines for this 18 months period of absence? Given that most of this holiday time was spent at the start of my 10 year period when I was only 13 and travelling back home to see my parents during school holidays? Or is it pretty much a rule set in stone and I shouldn't really try applying?
Thanks again for your help.


if it was at beginiing of 10 year period you can wait for some more time till u r under the 18 months limit during last 10 years.

otherwise its pure luck. rules are very clear and you do not meet the requirements.
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