ILR long residence refused - help!

Hi

I came to the UK as a student in September 1999. I submitted my ILR Long Residence application in December 2009. It came back early on this month after being refused based on a 1-month gap in August 2004. This was the time between my two degrees. My student visa for my first degree finished on 31 July 2004 and my next student visa started on 1 September 2004. In the ILR refusal letter, they claimed that I stayed in the UK after 31 July 2004 and only made my application for the next visa in September 2004. They said therefore the application for my second student visa was out of time and hence the 10 years was not continuous.

When I submitted the ILR application, I didn't even realise this gap existed, so I went through all my documents to found out what happened. I found out that my college only sent me the documents required for the student visa application in mid-August and I pretty much applied for a new visa straight away. The main reason for staying over after the first visa ended was waiting for that college letter to arrive.

I have just read the Long Residence guideline on http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/
It does say discretion could be applied for 10 days out of time applications. Mine was a month but I really couldn't do anything to help back then. There is no appeal because they claim I can still stay here until June next year. I really don't what to do now, but doing nothing means I will have to leave in June. I can't move to the Tier 1 General now because this week they moved up the qualification point and I just missed it because I don't quite earn enough.

Please advice. Should I reapply with a letter reasoning what happened? I should really talk to a solicitor. Could you recommend one please?

Thanks

Sorry to hear that. It must be such an enormous shock to have come through 10 years and then find out that something wasn't quite right. Based on what you've mentioned, unfortunately it sounds like you have only limited options. Discretion is only normally applied to a single gap of 10 days or less unless there is extenuating reasons. If you refer to the IDI, on page 10 there are some examples however only

administrative error on our part

was mentioned and I doubt that UKBA would take your explanation as a legitimate reason to use discretion on. They would probably argue that you should have been aware of the expiry of your existing visa, bla bla bla.

Anyhow if you really wanted to stay then maybe you have to consider PSW and hope to get a job then switch into WP and go down that route.

Sorry that's all I can suggest, maybe someone more senior can offer more advice. Best of luck

Thanks bb21. I forgot to mention that I am a British National (Overseas) passport holder, which I was told counts as a commonwealth citizen. Does being a commonwealth citizen help in this case? Also, inside the passport it does say

[quote]
In accordance with the United Kingdom immigration rules, the holder of this passport does not require an entry certificate or visa to visit the United Kingdom.
[/quote]

So does it mean the 1-month gap still count as a gap?

Had you left the UK July 2004, when the visa expired and applied for an entry clearance when you got the letter from the college, as would be expected of you, then you would have qualified.

If you have a partner with a settlement status, then they would have been required to consider your case under Article 8. But if this is not the case in your situation, i think your options are very limited indeed, except trying under the Tier 1

Obie wrote:Had you left the UK July 2004, when the visa expired and applied for an entry clearance when you got the letter from the college, as would be expected of you, then you would have qualified.

Indeed. This is one particular point sticking out for me as to be not in conformity with the literal meaning of the word 'continuous', but hey this is how UKBA interprets it.

jesseb20 wrote:So does it mean the 1-month gap still count as a gap?

I'm not sure about this. However I suspect the way UKBA would look at it is that there was no intention from you to switch from Student category to Visitor category you therefore overstayed your visa. Furthermore even if they consider you as having switched into Visitor category to allow your stay to remain legal, you wouldn't then have been allowed to switch from Visitor to Student for your second course as it is not a permitted switch. To do that you'd have to have gone back to your resident country and apply as Student again.

Sorry to disappoint.

The one month is not actually a gap or break in residence, but considered as an illegal stay.

The problem is, you became an overstayer or undocumented, in that one month period you were in the UK without a visa.

Had you been overseas, even a longer period of absence beyond a month will not have caused a gap.

You can apply in 3 years for ILR, as you will qualify under 14 years rule, but not 10 years.

jesseb20 wrote:Thanks bb21. I forgot to mention that I am a British National (Overseas) passport holder, which I was told counts as a commonwealth citizen. Does being a commonwealth citizen help in this case? Also, inside the passport it does say

In accordance with the United Kingdom immigration rules, the holder of this passport does not require an entry certificate or visa to visit the United Kingdom.

So does it mean the 1-month gap still count as a gap?

Being a British National (Overseas) holder, it does not really help in this case. If British Government really wants to help, they would have let you register as full British Citizen from BNO instead of giving you the BNO passport in the first place. Sadly, but it is true.