10 year ilr confusion

Nice one. I have read this. I will come back when I receive a response to IND later on next week!

I wasn't going to bother looking it up, but I felt inclined to do so to shut you up!!!



Victoria

You didn't need to, it was on page 1 of this thread.

paulp wrote:You didn't need to, it was on page 1 of this thread.

Whoops!

If only Jes had thought to look there too!

Victoria

VictoriaS wrote:

paulp wrote:You didn't need to, it was on page 1 of this thread.

Whoops!

If only Jes had thought to look there too!

Victoria

Oh Girl, I did look and if you look on Page 1 of this thread, I posted a quote from the Policy

Do any of you have any contacts higher-up at the home office? Can you ask if the bold (mine) part in the IDI is needed at all? Wouldn't that settle it?

"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."

Like I said, I have had refusals on this point. Unless it is challenged at JR, it will stand with the interpretation I have given. I'm not sure what the argument is about.

Victoria

VictoriaS wrote:Like I said, I have had refusals on this point. Unless it is challenged at JR, it will stand with the interpretation I have given. I'm not sure what the argument is about.
Victoria

I for one do understand completely where the loophole/argument lies and think that a good solicitor or a lawyer who understands the meaning of the bold part of the statement below, as pointed out by paulp, makes the whole world of difference between a refusal and a continuous residence.

"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."

If one can argue that the continuity is broken only if the visa expires and since it has not expired before the client entered on the next one, how the hell can the continuity be broken?(Do not know how to put it in lawyer terms.)

Had to put it in simple English to shut you up!

These are arguments which have been made, believe me, but with no luck, hence heading off for JR.

You are making the mistake of applying logic to the Home Office, and you are suggesting that they only apply the law lawfully...we know this is not true!!! I recently had a case where there was an overlap, and another where leave ended one day and was renewed the next, and these were still refused without appeal. Remember, the people who casework these things from within the UK are generally brainless morons. This is why so many refusals are overturned (I have a 100 per cent record on appeals) but when there is no right of appeal it is all made so much harder.

Victoria

VictoriaS wrote: You are making the mistake of applying logic to the Home Office, and you are suggesting that they only apply the law lawfully...we know this is not true!!!.

Yes! But even they are not above the law! If they do not follow it and gives no right to appeal, there should and must be a legal way to challenge them, especially in a case where the law is as clear as it is in this case. We have seen less clear cases being won on technicalities . There might be a need for a JR, the effort strenuous and maybe costly, but even a half competent lawyer could make the judge see the side of the story that we want to be seen. It should be worth it in the end.

P.S- While the overlap one might be easy, the one where the visa was given the very next day might go either way. But I think I can come up with an argument for that as well.

Of course I can come up with an argument, as I did for the initial applications, but I have no rights of audience at JR, and my clients don't have unlimited money to take things this far. At the moment, my hands are tied.


Victoria

Docterror wrote:

VictoriaS wrote:Like I said, I have had refusals on this point. Unless it is challenged at JR, it will stand with the interpretation I have given. I'm not sure what the argument is about.
Victoria

I for one do understand completely where the loophole/argument lies and think that a good solicitor or a lawyer who understands the meaning of the bold part of the statement below, as pointed out by paulp, makes the whole world of difference between a refusal and a continuous residence.

"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."

If one can argue that the continuity is broken only if the visa expires and since it has not expired before the client entered on the next one, how the hell can the continuity be broken?(Do not know how to put it in lawyer terms.)

Had to put it in simple English to shut you up!

Thanks for this. Because they do not see logic, it is always good to have it in black and white. I have done this before by sending an email to clarify an issue and when it was time, I included the email response and it worked.

I did not get the chance to send the email last night (my hands are tied if I may borrow Victoria's lingua). I will definitely seek official clarification from the HO and will post accordingly when I receive a response.

jes2jes, Victoria has already reported that she had already tried that line of defence at the HO and had not succeeded. So, an email might not yeild any different an opinion from them.

The HO may not respond to logic and it is not logic alone I am talking about. It is the interpretation of the law as it stands, especially with such a clear statement regarding the expiry of the visa. I personally will never have to take the HO to the court for denying me ILR after 10 years of legal residence. But, if someone is willing and capable enough, and the rejection is based solely on the reason at hand, I do see a very clear cut case.

Maybe, JR is the way and we will need a different sort of a lawyer for that. Maybe a lot of financial resources might be needed, which I suspect, can be recovered. But, nonetheless, there is an argument there to be won.

So, in short, no point holding your breath for the HO's response.

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!

JR doesn't necessarily cost the earth.

jes2jes, that is wonderful a response to recieve and quite honestly one I did not expect from the HO. It means that they too agree with our point of view which is quite fantastic.

Then someone tell me why refusals have been made by the Home Office on just this basis? It is another case of the left hand saying one thing when the right hand does another.

Amanda - I will be in touch tomorrow with regard to a number of JR's which, in light of this correspondence, I feel have some chance of success.


Victoria

Fine - I'm doing a JR tomorrow in the morning, and a reconsideration in the afternoon at Field House, but I'll get back to you when I can!

Many thanks - and best of luck with your cases.

Victoria

Docterror wrote:jes2jes, that is wonderful a response to recieve and quite honestly one I did not expect from the HO. It means that they too agree with our point of view which is quite fantastic.

It is good news and I have filed it away for my records since it applies to me for ILR next couple of months. I am trying for them to send me the policy docs. They came back with a reference to the IDI on chapter 18 and I told them that it does not state what the CW stated. I am awaiting this and I will post accordingly.

Vic, I recommend you send an email yourself to the enquiry line and when you receive a response, you can use it as part of your appeal or the JR. The paper trail always helps.

'Always'? No. But thanks anyway.


Victoria

Victoria, Amanda, Doc and Co:

I have just come off the phone with the BIA advisors. They told me the same thing the email above stated and said as long as there was no gap whilst you were abroad, continuity is not broken.

He finished by telling me you can go ahead and make your application. Looking forward to it in a few months time. What a relief.

Hope this helps you guys out with your JR's.

So can anyone tell me, how would one go about initiating a judicial review against the Home Office ? If my application failed and I wanted to challenge the decision what could I do?


Also I wonder. The IDI's are BIA's interpretation but what does the actual law say about continuous residency ?

VictoriaS wrote:If someone has left the UK whilst on one visa, ie a working holidaymaker, and re-entered on another, ie a student, then this will constitute a break in residency and the application will be refused. There seems to be no discretion on this.

Victoria

Why is the Home Office so strict on these points ? What is this directive supposed to achieve?

Fewer people with ILR of course.

Victoria