Re: Thank God - ILR Success under Chp 18

[jes2jes]

Dear All (expecially Vinny my man):

Just want to say that, God has smiled upon me and I am celebrating my ILR approval under the LRC.

Sent off docs on the 4th of July and was issued on the 8th of August. 22 working days.

If you remember, I had a fresh leave granted whilst one was existing whilst overseas. This was argued as a break in continuous residency (expecially Victoria and Amanda) but thank God BIA saw it differently.

Vinny, thank you for bringing TT to my attention. I used that in addition with the email from BIA confirming continuity of leave with my argument.
By God's grace it worked and I am a happy man today.

I wish all of you waiting God's mercy and blessings for your case. I will later post the later for anyone's reference.

[dnicky]

Congratulations and all the best for your future.

[jaas]

Congratulations jes2jes ...what a great feeling its....

[jes2jes]

Congratulations jes2jes ...what a great feeling its....

man it is. I had few tears.

Looking forward to Naturalisation before the new rules kick in!

[Christophe]

Oh, well done! And there's nothing wrong with a few tears...

And thanks for your good wishes and prayers for other people.

[vinny]

Congratulations

[jes2jes]

Congratulations

Thanks Vinny. You are a star

I know you have worked your magic on my first post in providing the links. I have not yet worked out how the BB Codes and yet I am into IT!

[yankeegirl]

Congratulations! I love reading happy endings on here!

[William Blake]

Congrats Jes and thanks for all your advice on my case.

With regard to TT then can anyone clarify the correct interpretation of continuous residence. I would appreciate as many opinions as possible. Either agreeing or disagreeing all are welcomed.

Here are some key points from TT:

Mr Gill relied upon and developed the points made in the grounds and in his supplementary note. He argued that all was needed was for a person in the appellant’s position to have leave at the point of departure and leave at the point of return, and that they did not have to have the same leave continuing to cover both periods.

http://www.ait.gov.uk/Public/Upload/j21 ... itizen.doc


AIT ruled in Mr. Gill's favour. Does this and the emboldened mean and cover the case where one leaves, leave lapses abroad and then one comes back and is given leave at the port?

At the point of departure means not before departure clearly, but when you are actually leaving at the port so at the point of return would seem to mean at the port also.

In 1999 when I had my gap there was no entry clearance requirement for a non-visa national coming to the UK to study. So would the new ruling cover my case where when I left on my working holiday maker and came back one month later after this lapsed abroad and presented my student documents and got leave given at the port of entry / point of entry? Also in those days entry clearance never had any effect as leave to enter anyway- the entry clearance was only 'activated' on arrival in the UK so had I secured it abroad before the first visa lapsed it would have had no effect as leave to enter prior to the immigration order 2000.

cf. immigration order 2000 non-lapsing leave

Some further highlights from TT for convenience:

The IDI Chapter 18 on Long Residence at paragraph 2.1.3 neither binds the Tribunal nor states the position correctly.



Mr Gill argued that it was not a matter of finding the Rules to be ultra vires. It was a question of assessing the proper purpose of the Rule. The old concession reflected the purpose. It was clear from the decision of the Tribunal in OS [2006] UKAIT 00031 that the concession continued side-by-side with the Rule, but the concession was removed after the decision in OS. The language of the Rule was not unambiguous. Paragraph 276A had to be read as a whole. There was no requirement in the Rule that a person had to have the same leave before and after the period when they left the United Kingdom. There was not even an ambiguity therefore within the Rule.


This particular IDI was only introduced after OS was promulgated and it would be necessary rather to look at the old long residence concession as being the equivalent of the IDI at the time.


whether a proper interpretation of paragraph 276A(a) the term “existing limited leave to enter or remain upon their departure and returnâ€

[jes2jes]

William Blake:

First of all, thanks for your appreciation. I would definitely respond to your PM later tonight.

Based on your post above, I will advisee you to read the following case from AIT's website:

00031_ukait_2006_os_hongkong

This would answer all the questions you have posted above since the appellant was in a similar situation as yours. I found this last night trawling through all the determinations (1200+ last night ).

Have fun reading it and if you have any questions, do come back.

[William Blake]

Hey Jes,

I am aware of that case Jes. The concession has now been removed - as you know of course - but what from this case do you hold to be relevant?

Can you be direct with me and tell me what you see to be relevant.

This caught my attention.


20.Absences from the United Kingdom are treated differently under the two systems. Under the Rule, a period of absence associated with no taint of illegality is not considered to break the continuity of residence. A period of absence following a period of overstaying does not have that advantage, so it no doubt is to be regarded as breaking the period of continuity. The effect of that is that, under the Rule, the absence resets the clock, enabling a continuous period of ten years’ lawful residence to be restarted. The right under the Rule to indefinite leave to remain after ten years’ lawful residence arises only when all the residence during the ten years has been lawful.


Does that still stand now then? So what exactly is the case then, why are so many people being refused ILR for alleged gaps abroad? Some people have even left the UK broken hearted.

I found this last night trawling through all the determinations (1200+ last night ).

.

But I thought you knew of this already. In your previous post under ten yr ILR confusion you, I and vinny made reference to this case.

My case is not like his though. I came to UK in 1997 on working holiday maker visa which expired 7th Aug 1999. 5 Aug 1999 I went to France then came back 5 September 1999 to start course of study for which I had already secured before leaving. I got the student visa at waterloo. The other stuff that HO says about late applications in country can be readily discarded - its the date of posting that counts in one and in the other section 3c leave was in effect.

[jes2jes]

William,
I knew of this case but I have not read it for a long time. The highlighted portion is what caught my eye. The only thing is that, your leave expired whilst you were abroad but you are a person from a visa free country so you could argue that out.

I guess the only thing that you can do is to ask the Sec of State to use her discretion in your case since you can argue that you had established residency here and was just away on holiday.

Give it a shot and you never know what might come up.

The appellant I was refering to had leave expired 3 times abroad and all were renewed at the POE whenever he came back. You can use that but only to site that as an example and other AIT judgements similar to that and ask the sec of state to use her good office to use her discretion.
Tell her what a good character you are, very educated, etc and would contribute meaningfully to society and not be a drain etc

[William Blake]

William,
I knew of this case but I have not read it for a long time. The highlighted portion is what caught my eye. The only thing is that, your leave expired whilst you were abroad

Is visa expiring abroad still of any relevance in light of the emboldend above and the decision in TT? Thats what I want to get to the bottom of.

again:

Mr Gill relied upon and developed the points made in the grounds and in his supplementary note. He argued that all was needed was for a person in the appellant’s position to have leave at the point of departure and leave at the point of return, and that they did not have to have the same leave continuing to cover both periods.

It seems to me based on both determinations that as long as you have leave while you are in this country then your time is continuous. Surely to insist that one has a uk visa while out of the UK is to go beyond the jurisdiction of UK immigration law.

Do others not see this the same way I see it?

[RAJ2007]

Congratulation jes2jes.

Could you please let everyone know content of your email to HO and what reply did u receive from them.

[William Blake]

Well, good people, I told you I will come back and here I am.
I sent the following email to BIA (some omitted of course):

Dear Sir/madam:
I would be grateful if you could offer me clarification concerning the Immigration Rules under Paragraphs 276A-276D concerning the Long Residence Rule (Chapter 18 - Long Residency).

The IDI on Long Residency States and I quote:
2.1.3 Time Spent Out of the United Kingdom

"To benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person, who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not beresuming his continuous residence, but will instead be starting a new period of residence in the UK (Emphasis mine).

This is my question:

The rule emphasis that a person who leaves the UK when one period of leave expires and comes back with a fresh grant of leave will not be resuming his continuous residence, but will instead be starting a new period of residency in the UK. Now what of the case where I had an existing leave which had not expired and entered with a new leave within a few weeks whist maintaining residency in the UK for theshort period abroad? Does this constitute a break in continuous residency or not? If it does or it does not, can you please explain?

Their Response:

Dear xxx,

Thank you for your enquiry.
Please be advised of the following: "Continuity 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 limitedleave to enter or remain upon his departure and return". Therefore, provided there was no break from your leave to remain in the UK up until your new visa was granted (your new leave to enter), there is no break in continuous residence.

Yours sincerely
xxxxxxxxxxxx
Managed Migration
Border & Immigration Agency

Well, come now Victoria. I was right and I was on the spot for the money I want to tell the OP as I said earlier in the thread that, you would be fine so long as your leave did not expire before the new EC was issued.

Your comments are of course welcome.

NB: I have fired another email since they did not send the policy document with their response.

Cheers!

[jes2jes]

I know that this would come up so I am posting the letter I sent to BIA for anyone who would use the TT route. All the best!



[quote]I am making an application for Indefinite Leave to Remain under HC 395 paragraphs 276A – D as amended by HC 538 (Chapter 18 of IDI – Long Residency).

I entered the UK on the XX XX XX as the date of first landing. Subsequently in XX XX XX, I landed again with an Entry Clearance as a student whilst previous leave had not expired.

The IDI on Long Residency, makes mention of a person who leaves the UK when one period of leave expires and comes back with a fresh grant of leave, would not be resuming their continuous residence, but would instead be starting a new period of residency. In my case the previous leave still exists (had not expired) but obtained a new leave in another category.

I sought clarification of the above from the BIA (please see attached email) and I was informed provided there was no break from my LTR in the UK up until the new leave was granted, residency has not been broken.

On the same subject, I have enclosed a Determination from the Asylum & Immigration Tribunal (NCN: [2008] UKAIT 38 – Long Residence “Continuous Residenceâ€

[paulp]

congrats jes!

[John]

Many congratulations jes2jes! A great result.

But let's just summarise the TT case, as I see it. The Home Office argued that because TT returned to the UK with a different valid visa to the one that she had left on, there had been a break in the continuity. However the QC acting for TT showed that because TT had applied for a new visa abroad before the expiry of the old visa, there was in fact continuity, even though different visas were in force on departure and on return.

So the TT judgement is great, and of much help to those that apply abroad for a new visa before their old visa expires ... but does not, as I see it, assist at all where the visa ran out while the person was abroad, and there was a period of time before the new visa was applied for.

As I see it, the TT finding is some sort of overseas version of Section 3C, the legislation that works in the UK where someone applies for a new visa before the expiry of the old one, thereby ensuring that they don't become an overstayer even if the stated expiry date on the old visa has passed.

[William Blake]

Good post John.

Any thoughts then on the case where the applicant did not need to get leave from abroad to re-enter the UK. ie. non-visa nationals who did not in 1999 require entry clearance to be a long term sudent.

I agree that specifically thats what TT deals with but it goes further from what I can see. The tribunal looked at:

whether a proper interpretation of paragraph 276A(a) the term “existing limited leave to enter or remain upon their departure and returnâ€

[John]

In 23 of the judgement it states :-

She has, on both occasions which are in issue before us, obtained further leave before the previous leave expired.

-: and accordingly I think the TT judgement is limited to those in that particular circumstance.

Accordingly, unfortunately, I don't think it assists at all anyone who obtained further leave abroad but after the expiry of the old visa, and nor does it assist where the person is not a Visa National, and thus it not required to obtain further leave before returning.

However as regards this latter group, the non-Visa Nationals, increasingly over the years they would have required to obtain a visa abroad, unless they were returning for six months or less.

[jes2jes]

Many congratulations jes2jes! A great result.

But let's just summarise the TT case, as I see it. The Home Office argued that because TT returned to the UK with a different valid visa to the one that she had left on, there had been a break in the continuity. However the QC acting for TT showed that because TT had applied for a new visa abroad before the expiry of the old visa, there was in fact continuity, even though different visas were in force on departure and on return.

So the TT judgement is great, and of much help to those that apply abroad for a new visa before their old visa expires ... but does not, as I see it, assist at all where the visa ran out while the person was abroad, and there was a period of time before the new visa was applied for.

As I see it, the TT finding is some sort of overseas version of Section 3C, the legislation that works in the UK where someone applies for a new visa before the expiry of the old one, thereby ensuring that they don't become an overstayer even if the stated expiry date on the old visa has passed.

John,
Thanks for your well wishes. I do appreciate it and I am over the moon mate. No more spending of money for visa renewals of course there is naturalisation next year by God's grace!

As I see it, the TT finding is some sort of overseas version of Section 3C, the legislation that works in the UK where someone applies for a new visa before the expiry of the old one, thereby ensuring that they don't become an overstayer even if the stated expiry date on the old visa has passed

I just want to add to the above that, the judgement goes beyond Section 3C but any swith of EC or Visa's overseas does not constitute a break in continuous residency as in my case. Whether visa was renewed before expiring abroad or a new one obtained whilst one was existing does not constitute a break.

William, off to church to thank the Man upstairs, will respond when I come back.
All the best you all!

[William Blake]

In 23 of the judgement it states :-

She has, on both occasions which are in issue before us, obtained further leave before the previous leave expired.

I read that also and thanks for pointing that out. Is it not the case that that was just her specific situation which fell within the correct interpretation of continuous residence?

whether a proper interpretation of paragraph 276A(a) the term “existing limited leave to enter or remain upon their departure and returnâ€

[John]

The judge was merely describing her situation not stating a requirement.

I think I would prefer to say that the judges were merely ruling on the circumstances of TT, and effectively not making a comment upon those in different circumstances.

So William Blake, I am not saying that your conclusion is wrong. But I am saying that I don't think the decision in the case of TT helps.

Or put it another way, I think another case might be needed, to test the circumstances you outline.

[William Blake]

The judge was merely describing her situation not stating a requirement.

So William Blake, I am not saying that your conclusion is wrong. But I am saying that I don't think the decision in the case of TT helps.

Sure I understand, we are just discussing and I appreciate your thoughts.

I do think that TT case is helpful. It makes counter arguments to refusal on gaps stronger. It points out that there is no requirement to have the same leave on departure and return. I invalidates the chap 18 IDI. And I am thinking HO may very well need to rewrite these IDI. It makes clear that it is the rules that are paramount not IDI and that interpretation as to what constitutes continuous residence must be based on the rules not the IDIs. In my case my refusal explicitly stated:

In view of the fact that you departed from the UK on 5 August 1999 and did not return within the currency of your leave and therefore had to obtain fresh leave to enter on your arrival to the UK

A lot can be counter argued about that even apart from the TT case but I point out that TT did return on fresh leave, she did not return within the currency of her leave. The sole difference is she renewed abroad which in my case was not needed.

That refusal ground effectively says I should have returned on the same leave but AIT makes clear that this is not a requirement of the rules but rather of the IDIs. Do the rules require one to renew a visa abroad before the previous expires? I can't see that it does. All the requirements says is to benefit from the ten year long residence rule when you enter the UK you must have leave (enter legally) and while you are here you must have leave (be here legally).

[paulp]

William Blake, I can't remember your situation. Have you already tried to get ILR?

In your case, although there is no need for you to get EC, it will be interesting to see how a tribunal will interpret the fact that you landed in the country without any leave to remain.