ILR long residence.Concerning Immigration Rule 276A(a)(i)

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ILR long residence.Concerning Immigration Rule 276A(a)(i)

Postby declanhuang » Thu Feb 17, 2011 10:14 am

Dear all,

Me and my husband have legally stayed in the UK for more than 10 years in total (from Aug 2000 till now), and we would like to know about the possibility of our case regarding applying for the settlement in the UK under the condition of “10 years long residenceâ€
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Re: ILR long residence.Concerning Immigration Rule 276A(a)(i

Postby joh118 » Thu Feb 17, 2011 10:37 am

[quote="declanhuang"]Dear all,

Me and my husband have legally stayed in the UK for more than 10 years in total (from Aug 2000 till now), and we would like to know about the possibility of our case regarding applying for the settlement in the UK under the condition of “10 years long residenceâ€
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Postby declanhuang » Thu Feb 17, 2011 12:21 pm

Dear all,

Below is the whole content of the refusal letter. Please tell us what you think.


Home Office Immigration and Nationality Directorate

NOTICE OF DECISION

(Paragraph 62 with reference to 60(i) of HC395 (as amended))

NOTICE OF REFUSAL TO VARY LIMITED LEAVE.


You have applied for leave to remain in the United Kingdom as a student but you are a person specified in the Appendix to the Immigration Rules who entered the United Kingdom with entry clearance as the wife of a student and the Secretary of State is not satisfied that you were admitted to the United Kingdom with a valid student entry clearance.

The Secretary of State therefore refuses your application. Your stay is extended under Section 3C of the Immigration Act 1971 until the expiry of 10 working days from the date when you received this notice.

You have no right of appeal against this decision (under section 61 and 62(1) of the Immigration and Asylum Act 1999).

You should leave the United Kingdom at the end of 10 working days from the date when you received this notice. If you failed to leave you may be prosecuted for an offence under the Immigration Act, the penalty for which is a fine of up to 2500 and up to 6 months imprisonment and you will also be liable to be removed from the United Kingdom.

Signed:

On behalf of the Secretary of State

Date: 1 Dec 2001



We received this letter on 4DEC2001, and left UK on 14DEC2001. Got new visas and came back on 2JAN2002.


Many thanks for the help.

Best regards,
Evangeline and Declan
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Postby vinny » Thu Feb 17, 2011 12:33 pm

Please click on any given links for further information.

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Postby joh118 » Thu Feb 17, 2011 2:31 pm

Hi,

it sounds ok. You may be eligible.

When you make the application, make sure you explain this in your cover letter. Also include the original letter as well. If you can provide some kind of evidence of having left the UK within this time period, that would be helpful as well. As always with these applications include a table outlining dates absent from UK, a table outlining visa applied dates and granted dates.

Just image what the caseworker will have to do, and try to make it easier for the caseworker.

perhaps make an application for yourself now and if you are successful, make an application for your husband/wife too. Just in case if there is something wrong, you will have saved £900.
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Postby declanhuang » Thu Feb 17, 2011 7:38 pm

Hi joh118,

Thank you for the reply. When we left UK and went back to our home country on 14DEC2001, the UK side did not put any stamp on our passports on our departure, but when we arrived in our home country on 15DEC2001 (because of the 16 hours flight), we did get stamps for arrival on our passports at the airport in our home country, showing the date when we entered our home country (i.e. 15DEC2001). Can this kind of evidence be used as proof that we left UK on 14DEC2001? Because we did not keep the original flight tickets with us.

We might need to apply together for ILR, because our current visa will expire at the end of this April, which is coming very soon.



Hi Vinny,
Many thanks for the 2 links. We have downloaded both of them.

We think you are referring us to the following:

For the first document (IDI Chapter 1 Section 5 concerning 3C and 3D), you are referring to 2.1.

For the second document (IDI Chapter 18 for Long Residence), you are referring to example 2 in 2.2.8 and example 3 in 2.3.10.


Combining these two documents, my current understanding is this:

Before our visa expired on 31OCT2001, we submitted our application on 6OCT2001 by post to extend our visa and also change status. But the refusal result was issued on 1DEC2001, which was already past the visa expiry date on 31OCT2001. Therefore, between 31OCT2001 and 4DEC2001 (when we actually received the refusal letter), 3C was triggered, and our stay in the UK was legal under 3C.

When we received the refusal letter on 4DEC2001, the letter gave us another 10 working days under 3C (which would expire on either 17DEC2001 or 18DEC2001, depending on whether we treated 4DEC2001 as one working day).

Therefore, 3C covered the period between 1NOV2001 and 17DEC2001, and we still had valid visa (because of 3C) when we left UK on 14DEC2001.

After we got our new visa (from 27DEC2001 to 30NOV2003), we came back to UK on 2JAN2002, which was covered by the new visa.

Therefore, based on example 2 in 2.2.8 and example 3 in 2.3.10 in IDI Chapter 18, our absence from 14DEC2001 to 2JAN2002 should not be considered as breaking our continuous lawful residence.


Is this line of reasoning basically correct?


Also, we still feel confused about the thing we mentioned before concerning 276A(a)(i), which says
"...but shall be considered to have been broken if the applicant:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or..."


How do we understand "has left the United Kingdom having been refused leave to enter or remain here"? Because our application in 2001 was indeed refused, and we left UK because of this refusal. But somehow the refusal letter still gave us 10 working days under 3C. Or this 276A(a)(i) actually means other things and does not apply to us in this case?


Another thing is that we could not find our special delivery receipt when we sent our application in 2001, but our signature on the application form was 6OCT2001 and we did send the application to Home Office either on Sat 6OCT2001 or the following Monday. We know this signature date because we have already ordered our SAR file, and the file contains the photocopy of our application form at that time, including the signature and date.

Can this SAR data be used as proof that we did make our application in time, even though we have lost our postal receipt? Or can we just argue that because the refusal letter had mentioned 3C, and based on the key points in 2.1 in IDI Chapter 1 Sec 5, 3C automatically implied that our application was in time, otherwise 3C could not even apply to us?


Many thanks again for the help.

Best regards,
Evangeline & Declan
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Postby joh118 » Thu Feb 17, 2011 7:53 pm

yes the stamps in the passport is fine, just make it clear in your cover letter that it takes 16 hours to arrive. Possibly include flight number etc.

Even though your visas expire end of april, one of the two should apply first. These days, it seems to take only around 5 or 6 weeks for a decision. But if you don't hear anything, then I guess your husband/wife will have to apply as well.
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Postby declanhuang » Fri Feb 18, 2011 10:36 am

Hi joh118,

Thanks for the advice. We will try to contact the airline and get the flight number records.

By the way, could you also tell us your opinion on the part which we asked Vinny concerning this 276A(a)(i) confusion, and probably also the other parts?

Many thanks,

Best wishes,
Evangeline and Declan
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Postby joh118 » Fri Feb 18, 2011 11:25 am

I am no expert and my advice shouldn't be taken in the same way as a professional's. If you do have the money, speaking to an acredited advisor may be helpful.

However,

Your understanding of the situation seems to be correct.


How do we understand "has left the United Kingdom having been refused leave to enter or remain here"? Because our application in 2001 was indeed refused, and we left UK because of this refusal. But somehow the refusal letter still gave us 10 working days under 3C. Or this 276A(a)(i) actually means other things and does not apply to us in this case?

Although you were refused leave to remain, the letter gave you extra 3C leave for another 10 working days. Therefore, you left the UK when you still had leave. As long as you provide this letter in application, it should be fine.

Another thing is that we could not find our special delivery receipt when we sent our application in 2001, but our signature on the application form was 6OCT2001 and we did send the application to Home Office either on Sat 6OCT2001 or the following Monday. We know this signature date because we have already ordered our SAR file, and the file contains the photocopy of our application form at that time, including the signature and date.

On the SAR file, it should be clear if you applied in-time or not. You'll see. Try to find the "raise date" on the SAR file.


Can this SAR data be used as proof that we did make our application in time, even though we have lost our postal receipt? Or can we just argue that because the refusal letter had mentioned 3C, and based on the key points in 2.1 in IDI Chapter 1 Sec 5, 3C automatically implied that our application was in time, otherwise 3C could not even apply to us?


Absolutely! The whole point of SAR file is so that you can provide vital evidence. Normally, the caseworkers aren't bothered to trawl through their database. Although my SAR file was over 150 pages long, you should find the vital sheet of document that proves you applied in-time.
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Postby jiangleijay » Fri Feb 18, 2011 12:06 pm

Here is my experience:

I was confused about this as well, because I had a refusal before too. Only that my situation was different in that I was refused for not having enough money in the bank (a balance of no less than £800, 3 months before application). This refusal is now considered unlawful under the Pankina Judgement. The story is that I was refused and I left the UK and returned with a new visa. I enquired a lawyer on the rules about refusal-left whether it breaks 'continous leave' or not. here is what he said:

Dear XX,

Thank you for the emails and I am sorry for the delay.

I have discussed with my colleagues this provision which breaks continuity:

has left the United Kingdom having been refused leave to enter or remain here

which you flagged up for me.

We have never seen it applied before so we cannot see what the UKBA is doing in practice. The IDIs on long residence do not discuss it at all. Does it only apply where someone is refused and then leaves or does it also extend to where someone is refused and appeals and then leaves without the appeal being determined?

As you have pointed out the refusal of your application was ‘wrong’ as decided in Pankina. For that reason I feel strongly that the UKBA will not use an erroneous refusal to form the basis of an argument that your continuous residence was broken.

I have looked at the latest November Policy Guidance on Pankina:

http://www.ukba.homeoffice.gov.uk/sitec ... enance.pdf

We could do this at the same time as lodging the ILR application: We say to the UKBA that if they consider continuity to have been broken, then we want the refusal to be considered and ‘remedied’ in line with their policy of 22 November 2010.

So, one way or the other, I think that you should feel optimistic about the outcome. If they were to refuse and we considered the refusal to be unlawful then, yes, there would be the option of Judicial Review.

Have a good Christmas and don’t study for the Life in the UK test too hard, it’s not so difficult!

Best wishes


I guess no one knows about how this is applied. If UKBA refuses u, you will have nothing to say, because the rules are in black and white. Unless you think your previous refusal is unlawful in some way. Can you not stay here an extra year, since your refusal was in 2001. you only need to wait a little bit longer provided that you can apply for a new visa?
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Postby declanhuang » Sat Feb 19, 2011 4:45 pm

Hi all,

Many thanks for all the advice. Have a good weekend.

Declan
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hi...

Postby junebal » Tue Mar 01, 2011 2:41 pm

i have somewhat similar case>>>i had to leave UK because i did not get the award or the letter for the pSW before my visa expires so I had to leave UK and apply for PSW visa after 4 months...DOes this break the rule for 10 years long term stay?

PLease reply :(
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Re: hi...

Postby sushdmehta » Tue Mar 01, 2011 2:43 pm

junebal wrote:i have somewhat similar case>>>i had to leave UK because i did not get the award or the letter for the pSW before my visa expires so I had to leave UK and apply for PSW visa after 4 months...DOes this break the rule for 10 years long term stay?

PLease reply :(
If you do not re-enter within 6 months of leaving UK (before expiry of leave valid then) then you'll be breaking the "6 months single absence" requirement. If you return within 6 months of leaving, you'll be fine.

Date of PSW application from home country is irrelevant here.


regards
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Re: hi...

Postby junebal » Tue Mar 01, 2011 3:52 pm

sushdmehta wrote:
junebal wrote:i have somewhat similar case>>>i had to leave UK because i did not get the award or the letter for the pSW before my visa expires so I had to leave UK and apply for PSW visa after 4 months...DOes this break the rule for 10 years long term stay?

PLease reply :(
If you do not re-enter within 6 months of leaving UK (before expiry of leave valid then) then you'll be breaking the "6 months single absence" requirement. If you return within 6 months of leaving, you'll be fine.

Date of PSW application from home country is irrelevant here.


regards


I have 2 more queries...
1.)My student visa, the one i came onto the uk, expired in october 2007 but i applied before it expired.BUt on the day that I applied, the home office required more documents so I was given a letter stating temporary stay for 28 days in order to produce the required documents. I have misplaced this letter.DO you think this will be a problem when I apply for the Long term residence permit? I was not refused but instead my stay was extended for another 28 days from the expiry date of my student visa. and I received my student visa extension for 3 yrs in september 2007

2.) one of the requirements for the LTR visa is to not leave the uk for 6 months at a time...

I went to the philippines (my home country) in july 2010 and returned to the UK after 2 and half months (september 2010) I stayed in the UK for 5 weeks to complete my thesis, thinking i would be able to appy for the PSW from the UK..But unfortunately, i did not get my degree certfificate on time so i had to leave on the 28th of october 2010 before my visa expired on 30th of october 2010. Since the 28th of October, i have been out of the Uk for 4 months now and I am returning on the 17th of March...WIll I still be able to apply for the 10 yrs long term residence visa in this case?

Please reply
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Re: hi...

Postby joh118 » Tue Mar 01, 2011 5:14 pm

junebal wrote:
sushdmehta wrote:
junebal wrote:i have somewhat similar case>>>i had to leave UK because i did not get the award or the letter for the pSW before my visa expires so I had to leave UK and apply for PSW visa after 4 months...DOes this break the rule for 10 years long term stay?

PLease reply :(
If you do not re-enter within 6 months of leaving UK (before expiry of leave valid then) then you'll be breaking the "6 months single absence" requirement. If you return within 6 months of leaving, you'll be fine.

Date of PSW application from home country is irrelevant here.


regards


I have 2 more queries...
1.)My student visa, the one i came onto the uk, expired in october 2007 but i applied before it expired.BUt on the day that I applied, the home office required more documents so I was given a letter stating temporary stay for 28 days in order to produce the required documents. I have misplaced this letter.DO you think this will be a problem when I apply for the Long term residence permit? I was not refused but instead my stay was extended for another 28 days from the expiry date of my student visa. and I received my student visa extension for 3 yrs in september 2007

2.) one of the requirements for the LTR visa is to not leave the uk for 6 months at a time...

I went to the philippines (my home country) in july 2010 and returned to the UK after 2 and half months (september 2010) I stayed in the UK for 5 weeks to complete my thesis, thinking i would be able to appy for the PSW from the UK..But unfortunately, i did not get my degree certfificate on time so i had to leave on the 28th of october 2010 before my visa expired on 30th of october 2010. Since the 28th of October, i have been out of the Uk for 4 months now and I am returning on the 17th of March...WIll I still be able to apply for the 10 yrs long term residence visa in this case?

Please reply


1. Have you thought of ordering your SAR file? it may be there. If not, you will have to say this in a cover letter and hope that HO believes you!

2. It sounds ok. As you came back to UK for the 5 weeks. According to my calculation 28/10/10 + 180 days = 26 April 2011 you need to come back before then.
However you may wish to check that you have not been out of UK for more than 18 months over the 10 year period.

The issue with the 28 day extention can become a bit complicated so I would advise that you see an advisor. I also suggest that you apply as soon as you can because there are some unannounced changes in April 2011 that may affect this.
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Re: ILR long residence.Concerning Immigration Rule 276A(a)(i

Postby sunmoon » Tue Mar 01, 2011 8:35 pm

declanhuang wrote:Dear all,

Long residence
Long residence in the United Kingdom

276A. For the purposes of paragraphs 276B to 276D:

(a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period 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 in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or

(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or

(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

[End of 276A(a)]


Could you help us to clarify this concern? Many thanks,

Best wishes,
Evangeline and Declan


According to 276(a) your continuous stay had been broken , as you (1) been refused leave to remain and left the country (2) technically it was clear that you are not coming back as you accept the HO decision and left the country and finally (3) left the United Kingdom in circumstances in which you weren't sure, at the time of leaving, that you would lawfully be able to return (you weren't sure that you will get a new visa to come back). So its clear that your continuous stay was broken but I don't know whether you can still eligible for ILR or not, you need to consult with a very good Immigration lawyer, very good means very good one !!!!
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Re: ILR long residence.Concerning Immigration Rule 276A(a)(i

Postby joh118 » Tue Mar 01, 2011 11:01 pm

According to 276(a) your continuous stay had been broken , as you (1) been refused leave to remain and left the country


yes they were refused leave but they left the UK when they had valid leave. The OP's experience can be seen this way:

Eg. visa due to expire on 30 August but you apply for an extention in-time and get refused on 25 August and leave the UK on 28th August and come back with a new visa 2 weeks later?


(2) technically it was clear that you are not coming back as you accept the HO decision and left the country and finally


so you recommend people to become overstayers?

(3) left the United Kingdom in circumstances in which you weren't sure, at the time of leaving, that you would lawfully be able to return (you weren't sure that you will get a new visa to come back).

(ii)[b] has left the United Kingdom and, on doing so, evidenced a clear intention not to return;

this rarely applies and when it does it usually only applies if the applicant got for eg. a US green card and left the UK and lived there for 3/4 months and chose to come back.

So its clear that your continuous stay was broken but I don't know whether you can still eligible for ILR or not, you need to consult with a very good Immigration lawyer, very good means very good one !!!!


Would you still say that continous residence was broken? I don't think so.

To OP, given the information you gave me, you qualify. So don't worry and apply. But please use a specialist advisor!
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Re: ILR long residence.Concerning Immigration Rule 276A(a)(i

Postby sunmoon » Wed Mar 02, 2011 12:54 am

joh118 wrote:According to 276(a) your continuous stay had been broken , as you (1) been refused leave to remain and left the country


yes they were refused leave but they left the UK when they had valid leave. The OP's experience can be seen this way:

Eg. visa due to expire on 30 August but you apply for an extention in-time and get refused on 25 August and leave the UK on 28th August and come back with a new visa 2 weeks later?


(2) technically it was clear that you are not coming back as you accept the HO decision and left the country and finally


so you recommend people to become overstayers?

(3) left the United Kingdom in circumstances in which you weren't sure, at the time of leaving, that you would lawfully be able to return (you weren't sure that you will get a new visa to come back).

(ii)[b] has left the United Kingdom and, on doing so, evidenced a clear intention not to return;

this rarely applies and when it does it usually only applies if the applicant got for eg. a US green card and left the UK and lived there for 3/4 months and chose to come back.

So its clear that your continuous stay was broken but I don't know whether you can still eligible for ILR or not, you need to consult with a very good Immigration lawyer, very good means very good one !!!!


Would you still say that continous residence was broken? I don't think so.

To OP, given the information you gave me, you qualify. So don't worry and apply. But please use a specialist advisor!


pls read 276(A) i carefully.... the answer is there.
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Re: ILR long residence.Concerning Immigration Rule 276A(a)(i

Postby jiangleijay » Wed Mar 02, 2011 11:01 am

sunmoon wrote:
joh118 wrote:According to 276(a) your continuous stay had been broken , as you (1) been refused leave to remain and left the country


yes they were refused leave but they left the UK when they had valid leave. The OP's experience can be seen this way:

Eg. visa due to expire on 30 August but you apply for an extention in-time and get refused on 25 August and leave the UK on 28th August and come back with a new visa 2 weeks later?


(2) technically it was clear that you are not coming back as you accept the HO decision and left the country and finally


so you recommend people to become overstayers?

(3) left the United Kingdom in circumstances in which you weren't sure, at the time of leaving, that you would lawfully be able to return (you weren't sure that you will get a new visa to come back).

(ii)[b] has left the United Kingdom and, on doing so, evidenced a clear intention not to return;

this rarely applies and when it does it usually only applies if the applicant got for eg. a US green card and left the UK and lived there for 3/4 months and chose to come back.

So its clear that your continuous stay was broken but I don't know whether you can still eligible for ILR or not, you need to consult with a very good Immigration lawyer, very good means very good one !!!!


Would you still say that continous residence was broken? I don't think so.

To OP, given the information you gave me, you qualify. So don't worry and apply. But please use a specialist advisor!


pls read 276(A) i carefully.... the answer is there.


very interesting discussions going on here. I guess, the only way to find out is to apply for ILR. Lawyers I enquired aren't contempt with 276(A)(i). However, none of the practitioners I enquired (I asked about 5 lawyers) have seen this rule applied. Nothing in the case laws either. Like John118 said, if the applicant has valid leave both upon departure and return, normally ILR will be granted. However, if UKBA refuses on the basis of 276(A)(i), you will have nothing to complaint about. The rules are in black and white.
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