ILR under Long residence

london2newyork · Post by **london2newyork** » Tue Dec 08, 2009 7:23 pm

Hi,

I came to UK in August 2001 therefore, in August 2011 I will complete 10 years residency in UK.
However, I went to USA for 11 months to complete my internship/placement (part of my university degree in UK) while I had a legal leave to remain in UK.
In 2007 I changed my student visa to IGS and in 2008 I changed it to 'residence permit' as a family member of an EEA citizen.

I was wondering would my leave from UK for 11 months for the purpose of exchange student (intern) effect my right to apply for ILR?

Many Thanks

Wanderer · Post by **Wanderer** » Tue Dec 08, 2009 7:29 pm

london2newyork wrote:Hi,

I came to UK in August 2001 therefore, in August 2011 I will complete 10 years residency in UK.
However, I went to USA for 11 months to complete my internship/placement (part of my university degree in UK) while I had a legal leave to remain in UK.
In 2007 I changed my student visa to IGS and in 2008 I changed it to 'residence permit' as a family member of an EEA citizen.

I was wondering would my leave from UK for 11 months for the purpose of exchange student (intern) effect my right to apply for ILR?

Many Thanks

No chance!

Sorry...

mrlookforward · Post by **mrlookforward** » Sat Dec 12, 2009 7:23 am

Basically you cant be on under eu rules and uk rules at the same time. now you are here as spouse of an eu citizen, so all previous residence period under uk law has basically vanished, and there is no way you can re-instate it.

london2newyork · Post by **london2newyork** » Sat Dec 12, 2009 8:21 am

Probably you are right but if I am not wrong 10 year law applies to all citizens who have stayed here legally for 10 years?????

I just wanna clear that if I left UK for 11 months continuously but the reason being it was part of studies in UK (INTERNSHIP/PLACEMENT) would I get it be treated as a discretion?
Many Thanks

mrlookforward · Post by **mrlookforward** » Sat Dec 12, 2009 8:52 am

I am afraid you are wrong. without going into details and legal jargon, let me tell you something in simple terms. being here legally means being legally under uk immigration laws ie having a valid "leave to remain" throughtout.

you are now spouse of an eea citizen excercising treaty rights. this gives you permission to live in uk and in day to day life its same as a leave to remain.

but and its a big BUT, you do not have any "leave to remain" in the uk at the moment. any leave you had vanished the day you were issued ur residence under eea criteria.

If you really want to hear the legal jargon, you could seek legal help after paying money to an adviser. answer you get will still be the same.

london2newyork · Post by **london2newyork** » Sat Dec 12, 2009 9:10 am

Thanks for your reply....

So is there any other criteria that you would suggest I should apply for ILR?
I believe I have to wait for 5 years under EEA visa before applying for ILR under EEA rule?

Please suggest...............

mrlookforward · Post by **mrlookforward** » Sat Dec 12, 2009 9:33 am

As I mentioned before, you must have a "leave to remain" for 10 yrs to qualify for ILR. Even if you had some kind of "leave to remain" for 9 years and 11 months and then you got into eea route, still you wouldnt have qualified.

all your previous stays and immigration history in UK rules has been wiped out from the day you got in through eea route in 2008.

Just take it as you never came to UK before 2008.

now while you are in uk with eea route, you cant make any other applications to home office at all, because you do not have "leave to remain"

do i need to make it even more clear?

Hope2007 · Post by **Hope2007** » Sat Dec 12, 2009 6:19 pm

Thats interesting....ok how about some one who had LTR for 8 years on various things (student, wp ..etc)...end of 8th year, if the person changes his visa status to spouse of settled person(ILR)..can he not apply for ILR after 9 year 11 months ?..was his 10 year validity vanished here ?
...
Thanks

Wanderer · Post by **Wanderer** » Sat Dec 12, 2009 8:39 pm

Hope2007 wrote:Thats interesting....ok how about some one who had LTR for 8 years on various things (student, wp ..etc)...end of 8th year, if the person changes his visa status to spouse of settled person(ILR)..can he not apply for ILR after 9 year 11 months ?..was his 10 year validity vanished here ?
...
Thanks

he can - uk ltr not broken....

Post by **Obie** » Sat Dec 12, 2009 9:13 pm

mrlookforward wrote:any leave you had vanished the day you were issued ur residence under eea criteria.

I don't think you are totally correct on that. I am not convinced that, such is the case. I am open to correction.

[b] Long Residence Criteria[/b] wrote:
2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
Applications may be received from third country nationals who have spent part of their time in the United Kingdom as the spouse, civil partner or other family member of an EU/EEA national exercising their treaty rights to reside here, but who have not been able to qualify for permanent residence. Alternatively, we may receive applications from former family members who have had a retained right of residence (see Chapter 5 of the European Casework Instructions for more details).
During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006.

What would potentially be problematic, is the fact that you spend 11 months overseas. I think the caseworker would need to exercise a bit of discretion, however they hardly exercise such discretion in applicants favour.

It is worth trying, and stating that your absence was due to you course requirement.

republique · Post by **republique** » Sat Dec 12, 2009 9:56 pm

london2newyork wrote:Hi,

I came to UK in August 2001 therefore, in August 2011 I will complete 10 years residency in UK.
However, I went to USA for 11 months to complete my internship/placement (part of my university degree in UK) while I had a legal leave to remain in UK.
In 2007 I changed my student visa to IGS and in 2008 I changed it to 'residence permit' as a family member of an EEA citizen.

I was wondering would my leave from UK for 11 months for the purpose of exchange student (intern) effect my right to apply for ILR?

Many Thanks

for ilr based on 10 year, it is not enough to have legal leave to remain, you need to be residing here. You clearly werent residing when you left for 11 months.

mrlookforward · Post by **mrlookforward** » Sun Dec 13, 2009 5:03 am

Obie wrote:
mrlookforward wrote:any leave you had vanished the day you were issued ur residence under eea criteria.
I don't think you are totally correct on that. I am not convinced that, such is the case. I am open to correction.

[b] Long Residence Criteria[/b] wrote:
2.3.8 Time spent in the UK with a right to reside under the EEA Regulations
Applications may be received from third country nationals who have spent part of their time in the United Kingdom as the spouse, civil partner or other family member of an EU/EEA national exercising their treaty rights to reside here, but who have not been able to qualify for permanent residence. Alternatively, we may receive applications from former family members who have had a retained right of residence (see Chapter 5 of the European Casework Instructions for more details).
During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, they would not fall within the definition of lawful residence given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.
This does not affect the rights of family members of EEA nationals to permanent residence in the UK where they qualify for it under Regulation 15 of the Immigration (European Economic Area) Regulations 2006.
What would potentially be problematic, is the fact that you spend 11 months overseas. I think the caseworker would need to exercise a bit of discretion, however they hardly exercise such discretion in applicants favour.

It is worth trying, and stating that your absence was due to you course requirement.

Obie,
the stuff you mentioned above is relevant if someone is applying for PR under EEA rules.

the guy is asking about obtaining ILR based on various continous grants of "leave to remain" which was from aug 2001 to 2008. In 2008 he got 5 years residence based on his marriage to an EEA national. Now he wants to apply for ILR based on his UK leave to remain period from 2001 to 2008, plus residence based on EEA rules from 2008 to 2011.

And I am sure you cant add both of them together and apply for ILR. Because for ILR you need 10 years legal residence, which can be achieved if he had "leave to remain" throughout 10 years. But the fact of the matter is, he hasnt got "leave to remain" since 2008 when he got residence based on married and living in UK with an EEA national. Such residence is clearly not "leave to remain"

Post by **vinny** » Sun Dec 13, 2009 10:12 am

2.3.8 seems pretty clear.

The main problem is 276A(a).

GEORGE81 · Post by **GEORGE81** » Sun Dec 20, 2009 10:43 pm

Hello,
mrlookforward, i think you haven't even read what Obie said i guess:) how can you advise someone when you clearly lack the info on the subject? you even readily ignore the info that has just become available to you?did you read through what obie posted?:)
i've been looking for the best possible answers from lawyers. i also have a thread in this forum and Obie replied to me previously.
what you are suggesting to the guy is that he has no chance at all. why not though? does not it say that time spent under EEA regulations may be counted as lawful under HO discretion?? if there is 'no chance' at all, as you say, then doesn't it occur to you that it may sound HO trap to rip applicants off financially?of course there is a chance, and good one too. if one gets refusal then they have to give you valid explanations. one can not refuse you because he/she is having a bad day. furthemore lack of uk leave to remain would not be a valid point to refuse the applicant because then it would just simply defeat the purpose of one given a chance under HO discretion.
if the marriage is intact and you provide all the necessary docunents proving the EEA national exercising treaty rights then there is more than a chance in it.
i do agree with Obie that the main issue for the guy is the absence of 11 months.

mrlookforward · Post by **mrlookforward** » Mon Dec 21, 2009 3:34 am

You are giving an impression as if discretion is mandatory. You are saying home office could excercsie discretion. In theory HO can excercise discretion for anyone under any circumstances. But the question is, do they excersie discretion for every single person who asks for discretion. Do you really think they will excercise discretion for someone being without valid leave to remain for 2 year? sorry mate, I dont think so. While excercising discretion, a caseworker cant just ignore the rules. As far as many lawyers and advisers are concerned, well they have an utmost urge to advise the applicant that they do have a "chance". You cant blame them either, this is their bread and butter. Same here on this forum, people just tend to be politically correct by always giving false hopes to people.

Applying for PR after living 5 yrs as spouse of eea national is the only option available to op.

Anyways, I wont be making any further comments on this thread. Good bye.

GEORGE81 · Post by **GEORGE81** » Mon Dec 21, 2009 7:37 pm

discretion is not surely mandatory we all know that. but to give a valid explanation of why the application is refused is mandatory, is not it?
if the time spent under EEA regulation is wiped out then why the discretion here? won't the applicant be guaranteed the refusal? wouldn't that be a rip off of 820 pounds while still encouraging them to apply? no mate, i do appreciate the democracy of this country and believe that they do use discretions when appropriate.
We are not talking about applicants who have a problem with other issues where there are gaps/absences, etc.. i am pointing out the compatibility issue here, within UK legislation and EEA regulations where the discretion can be exercised. and would you agree that this means 'a chance'? sure the HO would never encourage the applicants to submit the apps if there is no chance.
if there was a zero chance then the bit of the discretion would not be even mentioned in the paragraph at all.

cheers

Pay · Post by **Pay** » Mon May 13, 2013 8:07 pm

Guys any update or success story in regards to have EEA as part of ILR 10 years ?

I really appreciate your reply.

Many Thanks

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