HELP WITH TEN YEAR RULE

[William Blake]

I am in a spot of bother guys. I want to apply for indefinite leave to remain under the ten year rule. I came to the UK in 1997 as a working holidaymaker and then became a student and have been here ever since. So I want to make an application in a couple of months.

The problem I have is this. Before my working holidaymaker visa expired (1999) I left the UK for France (on the Eurostar) and came back one month later and re-entered as a student. I have been informed that this one month period when my visa expired when I was abroad was a break in the requirement for there to be continuous residence in the UK. This is the only time I have spent out of the UK. I fear that my application will be refused.

I am currently a PHD student also working for an employer who admires my work. I am not sure whether I should wait for another two years ie. count the ten years from 1999 – so for example don’t apply for ILR now but finish the PHD (2008) and switch to maybe a one year graduate visa and then make up the time that way.

Whether I should try for the ILR (10 yr rule) now and just fight it out – possibly into an appeal

Not provide the original passport and provide alternative proof that I have been here for ten years – possibly in advance requesting my immigration file under the freedom of information act.

Try for ILR (10 yr rule) and if it fails try to persuade my employer to sponsor me a work permit

The other thing I am worried about is that they have started collecting National Insurance numbers on long residence and student application forms – someone told me that they will use this information to check whether an applicant has stayed within the terms of their stay and that if the applicant hasn’t then under the 10 yr rule they could refuse the application for not being of good character. They could also refuse any application for a student visa This worries me as there have been times in the past as a student where I have exceeded my 20 hours.

None of the advice I have received from the solicitors I have spoken to has been helpful – they just keep telling me all the things that can go wrong and offer no way forwards, maybe I just need to keep looking until I find a good solicitor. But anyways guys in a nutshell what I want to know is this:

What is my best option ?

And if I go ahead with the ILR application on the 10 yr rule what is the best way to go about the application to optimise my chance of success. Oh and does anyone know what they are doing with the NI numbers.?

[John]

What is my best option ?

I think it would be a good use of £10 for you to make a Subject Access Request and thus get a copy of the Home Office record on you. Having got that report you will know what they know about you and can then plan accordingly.

Download this document where at (2) it tells you how to make a request.

[global gypsy]

I don't believe 1-month away from the UK is treated as a 'break' for immigration purposes. Someone else can confirm this.

[SYH]

Whom informed you that 1 month away is a break of your ten year stay??

[OL7MAX]

John's advice is, as usual, spot on.

someone told me that they will use this information to check whether an applicant has stayed within the terms of their stay

They could, in theory, do a lot of cross checking on a lot of people but they will they? Look at it this way: If someone gave themselves up as an illegal immigrant the chances are the HO wouldn't have the time, inclination or manpower to do anything about it.

There is the 14 year rule that overcomes the problem of the illegal working you've been doing. Another 4 years isn't that long, is it?

None of the advice I have received from the solicitors I have spoken to has been helpful – they just keep telling me all the things that can go wrong and offer no way forwards

There is a technical abbreviation for that pessisim: CYA. Make no mistake, though, should you succeed they'll claim all the credit.

[immigration1]

The problem I have is this. Before my working holidaymaker visa expired (1999) I left the UK for France (on the Eurostar) and came back one month later and re-entered as a student. I have been informed that this one month period when my visa expired when I was abroad was a break in the requirement for there to be continuous residence in the UK. This is the only time I have spent out of the UK. I fear that my application will be refused.

This is correct I'm afraid. There was a break in your stay in the UK. Under the IDI's (long residence in the UK, April 2007) it is stated that when a person leaves the UK they must have existing leave for when re-enter the UK. If your leave expired after you left the UK and were given a brand new leave when you re-entered (as a student) there was a gap in the 10 year.

Secondly, even if you get the file of papers from the HO, it won't show you much that you don't know already also the immigration service stopped using embarkation checks from March 1998 onwards and in any event the burden is on you to show that you remained in the UK throughout these ten years without any gap. I wouldn't make the application now. You might loose £750 plus £34 for life in the UK test. The appeal wouldn't be successful if you tried to argue that the HO are wrong in applying the immigration rules. Maybe it s best if you wait until 2009 and make the application then?!

[John]

Immigration1 quotes the BIA instructions. It might be worth looking at the whole of that document. Click here to download it.

Having done so read 2.1.3 in particular, and see :-

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 residence in the UK.

-: and appreciating that these are instructions to BIA staff, William Blake it looks like you will need to wait until 2009 before submitting your 10-year application.

[sunnyday]

What if one person leaves the UK before the visa expires and extends the visa in home country before it expires, then comes back with the new extention. Would that be considered as a break?

For example, visa expiry 10/02/2004, left UK on 10/01/2004 and renewed visa on 20/01/2004, came back to UK on 20/02/2004

[sunnyday]

Immigration1 quotes the BIA instructions. It might be worth looking at the whole of that document. Click here to download it.

Having done so read 2.1.3 in particular, and see :-

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 residence in the UK.

-: and appreciating that these are instructions to BIA staff, William Blake it looks like you will need to wait until 2009 before submitting your 10-year application.

I thought you said previously that it would depend on whether he has an intention to come back to the UK or not?

[Jeff Albright]

Secondly, even if you get the file of papers from the HO, it won't show you much that you don't know already also the immigration service stopped using embarkation checks from March 1998 onwards and in any event the burden is on you to show that you remained in the UK throughout these ten years without any gap.

VERY relevant point.
Your Home Office file will probably not show up any records of you getting visa from abroad (through the Embassy) and I have some confidence that if you are non-visa national and was given leave to enter at the port, this might not have been linked to your HO file, either. The port file is not automatically linked to your HO file, anyone seeking information from your port file would have to physically pick up the phone and call Ports Liaison Unit to obtain those records.
I also have suspision that when you enter the UK and fill in the landing card, there is no electronic record of your entry - at least in 1998 it is unlikely there was any. The only record of your entry is your filled in landing card with the IO records at the back showing your reasons for entering the UK and his stamp. The card is then sent to Landing Cards Unit and held there for N number of years.
So Immigration1 is correct that you will have to document all the years you stayed here and produce evidence to satisfy the officer that your were present in the UK all this time, which would probably be the passports you held in the past 10 years with the UK immigration stamps in them.

[sunnyday]

Secondly, even if you get the file of papers from the HO, it won't show you much that you don't know already also the immigration service stopped using embarkation checks from March 1998 onwards and in any event the burden is on you to show that you remained in the UK throughout these ten years without any gap.

VERY relevant point.
Your Home Office file will probably not show up any records of you getting visa from abroad (through the Embassy) and I have some confidence that if you are non-visa national and was given leave to enter at the port, this might not have been linked to your HO file, either. The port file is not automatically linked to your HO file, anyone seeking information from your port file would have to physically pick up the phone and call Ports Liaison Unit to obtain those records.
I also have suspision that when you enter the UK and fill in the landing card, there is no electronic record of your entry - at least in 1998 it is unlikely there was any. The only record of your entry is your filled in landing card with the IO records at the back showing your reasons for entering the UK and his stamp. The card is then sent to Landing Cards Unit and held there for N number of years.
So Immigration1 is correct that you will have to document all the years you stayed here and produce evidence to satisfy the officer that your were present in the UK all this time, which would probably be the passports you held in the past 10 years with the UK immigration stamps in them.

If he were to provide all documents to prove that he's present during that two years 1997-1999, he'd be able to satisfy continuity residency and overwrite the break in his visas?

[John]

I thought you said previously that it would depend on whether he has an intention to come back to the UK or not?

The record does show that in the past I have indeed posted that. However that was on the basis of the contents of the previous advice IND gave to its staff, not the current version. Accordingly I conclude that IND/BIA have changed their policy.

The relevant part of the previous advice to IND staff reads :-

5. WHAT CONSTITUTES CONTINUOUS RESIDENCE
Continuity need not be broken by a small number of short absences abroad of up to 6 months at any one time during the 10/14 year period. Short absences cannot be said to disrupt or sever ties with the United Kingdom. These absences should normally be ignored, unless such trips are frequent. In such cases the reasons for such frequent trips should be requested, as the applicant may have a business or be maintaining family ties abroad. In some cases a lengthier absence may still not sever the ties to the United Kingdom. In each case the strength of the ties to the United Kingdom, the reason for, and effect of the absence should be taken into account.

Continuity of residence should be considered as being broken if the applicant:

• was removed or deported from the United Kingdom;
• at the time of his departure there is evidence to indicate that he had no intention of returning or there was an absence of strong ties to the United Kingdom; or
• a lengthy absence which can be considered to have severed ties with the United Kingdom.

Given the apparent change of policy, I feel that someone aggrieved by that change might decide to take their ILR refusal to Judicial Review.

William Blake, when you left the UK you still had a valid visa. The application for the new visa, was that made while the old visa was still valid? Or had the old visa run out when you applied for the new one?

[William Blake]

The old visa (working holdiay maker) expired when I was in France. When I reentered the UK (waterloo) I satisfied the immigration officer that I was coming back to study and he admitted me on a student visa. So, the first one (working holiday maker) had expired when I got the second one (student visa).

What if I just don't give them my original passport and provide alternative evidence that I have been here for ten years. The issue there I suppose is what about the other requirements of not having spent more than six months etc. out of the country - maybe I just claim I had no abscence from the UK.

Or would it be worthwhile to just submit my application with my original passport and rely on the discretion of the officer as I understand that they have the power to overlook such small break in continuousness.

[William Blake]

The appeal wouldn't be successful if you tried to argue that the HO are wrong in applying the immigration rules.

n?![/quote]

I wouldn't appeal that they were wrong in applying the rules but rather that the discretionary power should be applied in my case as a one month break is not sufficient to sever my ties with the UK or deny me of my fundamental place in society.

I would look at the spirt of the rules / law and the strict letter of it.

The ten year rule is an avenue that acknowledges a person's ties to the UK. Irrespective of the break in the visas - my ties remain. This is the essence of what I would argue.

[SYH]

The appeal wouldn't be successful if you tried to argue that the HO are wrong in applying the immigration rules.

n?!

I wouldn't appeal that they were wrong in applying the rules but rather that the discretionary power should be applied in my case as a one month break is not sufficient to sever my ties with the UK or deny me of my fundamental place in society.

I would look at the spirt of the rules / law and the strict letter of it.

The ten year rule is an avenue that acknowledges a person's ties to the UK. Irrespective of the break in the visas - my ties remain. This is the essence of what I would argue.[/quote]
Well said William

[sakura]

What if I just don't give them my original passport and provide alternative evidence that I have been here for ten years. The issue there I suppose is what about the other requirements of not having spent more than six months etc. out of the country - maybe I just claim I had no abscence from the UK.

Well, you need to prove you were here during your WHM so what else can you use to prove you were here legally, other than your passport with the stamp?? Plus, you need to list all the absences. Sorry to be frank, but if you're thinking about lying to the HO to prove your 'ties' to the UK to get ILR, because you are worried about the outcome, lying never helps and you are simply cheating your way through the system.

At the end of the day, they should have the time you applied for a student visa and the time your WHM expired, so if they are wise and put two and two together, they'll see the time lag between the two visas. In the long residence category you are requird to provide ALL the passports you have held, or if unable to, ALL relevant correspondence from the HO, which, again, should have the time you applied for your first and second visas. But I don't mean to suggest whether or not you'll be successful, just pointing out some of the things you need to put in your ILR application.

[sunnyday]

I thought you said previously that it would depend on whether he has an intention to come back to the UK or not?

The record does show that in the past I have indeed posted that. However that was on the basis of the contents of the previous advice IND gave to its staff, not the current version. Accordingly I conclude that IND/BIA have changed their policy.

The relevant part of the previous advice to IND staff reads :-

5. WHAT CONSTITUTES CONTINUOUS RESIDENCE
Continuity need not be broken by a small number of short absences abroad of up to 6 months at any one time during the 10/14 year period. Short absences cannot be said to disrupt or sever ties with the United Kingdom. These absences should normally be ignored, unless such trips are frequent. In such cases the reasons for such frequent trips should be requested, as the applicant may have a business or be maintaining family ties abroad. In some cases a lengthier absence may still not sever the ties to the United Kingdom. In each case the strength of the ties to the United Kingdom, the reason for, and effect of the absence should be taken into account.

Continuity of residence should be considered as being broken if the applicant:

• was removed or deported from the United Kingdom;
• at the time of his departure there is evidence to indicate that he had no intention of returning or there was an absence of strong ties to the United Kingdom; or
• a lengthy absence which can be considered to have severed ties with the United Kingdom.

Given the apparent change of policy, I feel that someone aggrieved by that change might decide to take their ILR refusal to Judicial Review.

William Blake, when you left the UK you still had a valid visa. The application for the new visa, was that made while the old visa was still valid? Or had the old visa run out when you applied for the new one?

Very relevant information. There are just too many changes recently it's so overwhelming.

[SYH]

To that point regarding the changing rules
It would be helpful if someone keeps the former versions of the continouus residence rules so that we can reference. As I know I conducted myself based on the informatin given at the time and now that it has changed, I think it is unfair that I might be adversely impacted as a result.

[sunnyday]

William Blake, I think you got it right there and will need to prove that intentionally it was not a break if you were indeed planning to come back.

It'd probably be easier to apply through an immigration lawyer in your case.

[sunnyday]

To that point regarding the changing rules
It would be helpful if someone keeps the former versions of the continouus residence rules so that we can reference. As I know I conducted myself based on the informatin given at the time and now that it has changed, I think it is unfair that I might be adversely impacted as a result.

Yes I agree. I read that the BIA staff weren't given written rules before and merely using their discretion and judgement in assessing applications. Now these written guidelines have been published. It depends on how much they choose to follow the guidelines I suppose?

[William Blake]

Thanks guys very helpful comments. Keep em coming.

I want to ask about the discretionary power that the caseworker has.

I understand that Home Office will consider there is a break in the continuous residence but I understand that the caseworker has the discretion to overlook this.

How can I influence this discretionary power ? For example should I make the application, draw attention to the gap and then appeal to the caseworker's discretionary power and supply justifying evidence ? As opposed to for example submitting the application and not saying anything about this gap ?

So what I want to know is: How can I influence the caseworker towards a yes given the gap in the visa ?

[costa]

To William Blake,

Did you get your school offer letter before your previous expired, or before you left for France? If so, it can prove that you still maintain a tie and accordingly have strong attention to come back to the UK.

So, I think the point is- if you want the caseworker to exercise discretionary power on your side, the best way is to show some documentary evidence to prove you have tie with the UK all the time.

On the other hand, as you are a PhD student, except you may need to hand in the student certificate at PEO, it may be a positive point if your supervisor can write a cover letter for you.

In my opinion, prepare all documents you have had, and choose a good time at PEO, dress in a smart and professional way. Then your successful chance should be around 70%.

Good luck,

[William Blake]

Thanks Costa I like the way you think.

I did get offer letter just before leaving for France back in 1999 so I will take your advice regarding this and in fact the other things you have mentioned. Thanks a lot.

[William Blake]

.

choose a good time at PEO,

What is a good time ?

[costa]

.

choose a good time at PEO,

What is a good time ?

Well, to my limited knowledge, Tue, Wed, Thurs might be better than Mon (a blue starting working day) and Friday (may think of how to leave office and catch a date later on all the time). Morevoer, morning time might be better than late afternoon. Anyway, if you can spend some time on reviewing the PEO experience with similar ILR cases on this board, you might be have clearer idea in mind then.