10 year ilr confusion

zinao · Post by **zinao** » Mon Nov 12, 2007 11:46 pm

hi

i was just on a lawyers site and they have updated guideleines to ilr for long residency. i am particularly scared because they say that if you were on one visa(WHM) and left the uk and came into the uk a month later on another visa (student visa), that does not constitute continuous residency.
does that mean that someone who has been here 10 years but had a combination of leave to remains and visas is not eligible.
hee is the link.

http://www.gherson.com/articles/long-re ... e-guidance

John · Post by **John** » Mon Nov 12, 2007 11:52 pm

if you were on one visa(WHM) and left the uk and came into the uk a month later on another visa (student visa), that does not constitute continuous residency

No, it is now clear that what has happened is that the clock has been reset back to zero.

However, given that this is a re-interpretation by BIA, it is possible that this will get challenged at the tribunal or the Courts.

zinao, what is your UK immigration history?

zinao · Post by **zinao** » Tue Nov 13, 2007 12:24 am

i have been here for 6 and a half years, first on a working holiday visa then as a student. i have just applied to continue my studies in january for my masters(mphil), which i have calculated with the work experience(1 yr)would bring me to 10 years.

does this show that i do not qualify?

John · Post by **John** » Tue Nov 13, 2007 8:55 am

Regretfully, and of course I did not write the rules, I think your 10-year clock was reset back to zero when you left at the end of your WHM visa. 10 year count started again when you returned on the student visa.

zinao · Post by **zinao** » Tue Nov 13, 2007 1:18 pm

hi again
you said something about tribunals. how do these work?

i personally think that it is outrageous that some nationalities (i am not referring to eu countries) but canadians and australians and some other commonwealth countries were allowed to change their status to students in the uk after finishing their working holiday but i was told to return home thus reseting the clock for me. an australian and canadian in my situation would still retain their 6 and a half years.

i know the rules have changed but i think they should apply to those that came in when they took effect in may 2007. before may i would have probably been still been entitled and on due course for 10 years.

i was a student that started in 2004 but the rules to work after completing one's studies only apply to ppl who started in 2006, when the rules were implemented and i think the same should be applied to the above case.

jes2jes · Post by **jes2jes** » Tue Nov 13, 2007 3:22 pm

John wrote:Regretfully, and of course I did not write the rules, I think your 10-year clock was reset back to zero when you left at the end of your WHM visa. 10 year count started again when you returned on the student visa.

John, according to the IDI's pasted below from the BIA's website, there is nothing there to back the above statement. If the OP's visa expired before a new one was obtained then yes the clock stops but if say, the OP had a 2 - year WHM Visa and after 6 months went abroad and came back with a fresh LTR say WP, SV, Spousal V etc, then residency has not be broken as far as I can read this. Please see below:

Time Spent Out of the United Kingdom

Continuity of residence should be considered to have been broken if the applicant has
spent a total of more than 18 months absent from the United Kingdom during the
period in question.Subject to that, 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 limited leave to enter or remain upon his departure and return.

2.1.5 Events that â€œstop the clockâ€

iceman010899 · Post by **iceman010899** » Tue Nov 13, 2007 7:58 pm

Hi

It doesnt matter anyway. The 10 yr might be removed in April 2008 after the new points system comes into force.

If not in April, it will definately be taken off the immigration rules. My 10 years comes up next year and I am not looking forward to ILR.

Good luck.

vinny · Post by **vinny** » Wed Nov 14, 2007 12:35 am

See also Chapter 18 - Long residence, Long residence

jes2jes · Post by **jes2jes** » Wed Nov 14, 2007 8:18 am

vinny wrote:See also Chapter 18 - Long residence, Long residence

Vinny, my quote was from the document you posted.

jes2jes · Post by **jes2jes** » Wed Nov 14, 2007 8:19 am

iceman010899 wrote:Hi

It doesnt matter anyway. The 10 yr might be removed in April 2008 after the new points system comes into force.

If not in April, it will definately be taken off the immigration rules. My 10 years comes up next year and I am not looking forward to ILR.

Good luck.

I don't know who gave you that idea. The 10 LRC was provisional until recently enshrined into the immigration rules. It will not just be abolished because of the point system. It is here to stay until the forseable future

paulp · Post by **paulp** » Wed Nov 14, 2007 9:14 am

Zinao, further to jes2jes's post, can you confirm whether your WHM expired while you went back to your home country or if it was still valid when you returned to the UK?

zinao · Post by **zinao** » Wed Nov 14, 2007 12:27 pm

well it was meant to expire on 27th of jan 2004 and i went back on the 6th of jan for my student visa. i returned on the 19th. am i right thinking that thestudent visa cancelled that leave to remain.~

paulp · Post by **paulp** » Wed Nov 14, 2007 12:39 pm

zinao wrote:well it was meant to expire on 27th of jan 2004 and i went back on the 6th of jan for my student visa. i returned on the 19th. am i right thinking that thestudent visa cancelled that leave to remain.~

The main point here is that you actually returned before the expiry of your whm visa. Below is the relevant bit from the Long Residence IDI, you satisfy the first bold part. I'll leave it to the gurus to interpret the second bold part (the bit about whether the student visa cancelled the whm and on what leave you were readmitted into the country).

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 be
resuming his continuous residence, but will instead be starting a new period of
residence in the UK.

jes2jes · Post by **jes2jes** » Wed Nov 14, 2007 1:23 pm

paulp wrote:
zinao wrote:well it was meant to expire on 27th of jan 2004 and i went back on the 6th of jan for my student visa. i returned on the 19th. am i right thinking that thestudent visa cancelled that leave to remain.~
The main point here is that you actually returned before the expiry of your whm visa. Below is the relevant bit from the Long Residence IDI, you satisfy the first bold part. I'll leave it to the gurus to interpret the second bold part (the bit about whether the student visa cancelled the whm and on what leave you were readmitted into the country).

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 be
resuming his continuous residence, but will instead be starting a new period of
residence in the UK.

As far as I know, a new EC makes the previous one of none effect (although that has not expired) but stopping the clock I am not sure. There is nothing in the IDI's that says otherwise and I must say that, this is at the discretion of the CW. So long as residency was maintained whilst abroad, I think this would pass the test.

VictoriaS · Post by **VictoriaS** » Wed Nov 14, 2007 1:52 pm

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

paulp · Post by **paulp** » Wed Nov 14, 2007 2:05 pm

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

Can it be argued that he re-entered on his whm as that hadn't expired?

VictoriaS · Post by **VictoriaS** » Wed Nov 14, 2007 2:06 pm

Not if he didn't! If a student visa has been stamped in the passport and he has entered on that, the WHM is cancelled.

Victoria

iceman010899 · Post by **iceman010899** » Wed Nov 14, 2007 8:33 pm

Victoria Wrote:

Not if he didn't! If a student visa has been stamped in the passport and he has entered on that, the WHM is cancelled.

Not if it was an in-country switch from another catagory. You enter on WHM and convert to student visa whilst in UK, this will count as continuous. Then you are alright. That is if you dont have any major gaps, etc.

jes2jes · Post by **jes2jes** » Wed Nov 14, 2007 9:01 pm

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

Can you kindly point me to the policy document which states the above please. I cannot see anything in the IDI's that supports that.

Do you have a link to any policy documentation that explains EC albeit having an existing one which becomes null and void at the issuance of a new one? The answer might be there.

Anyone can post if you know.

VictoriaS · Post by **VictoriaS** » Wed Nov 14, 2007 9:48 pm

iceman010899 wrote:

Not if it was an in-country switch from another catagory. You enter on WHM and convert to student visa whilst in UK, this will count as continuous. Then you are alright. That is if you dont have any major gaps, etc.

Yes....but that isn't what happened in this situation. He has told us that he left the country.

Victoria

VictoriaS · Post by **VictoriaS** » Wed Nov 14, 2007 9:50 pm

jes2jes wrote:

Can you kindly point me to the policy document which states the above please. I cannot see anything in the IDI's that supports that.

Do you have a link to any policy documentation that explains EC albeit having an existing one which becomes null and void at the issuance of a new one? The answer might be there.

Anyone can post if you know.

And anyone can read the documents more carefully. I'm not going to go trawling for it. There is enough evidence on these forums to back up what I am saying.

Victoria

Docterror · Post by **Docterror** » Thu Nov 15, 2007 9:14 am

VictoriaS wrote:
jes2jes wrote:

Can you kindly point me to the policy document which states the above please. I cannot see anything in the IDI's that supports that.

Do you have a link to any policy documentation that explains EC albeit having an existing one which becomes null and void at the issuance of a new one? The answer might be there.

Anyone can post if you know.
And anyone can read the documents more carefully. I'm not going to go trawling for it. There is enough evidence on these forums to back up what I am saying.

Victoria

Actually, the evidence in this forum, atleast on this particular topic of discussion is not as clear cut as you think. See http://www.immigrationboards.com/viewto ... ght=#91688

VictoriaS · Post by **VictoriaS** » Thu Nov 15, 2007 9:38 am

I don't think anything there contradicts. The most recently issued and used visa supercedes the previous visa.

Victoria

jes2jes · Post by **jes2jes** » Thu Nov 15, 2007 12:11 pm

VictoriaS wrote:
jes2jes wrote:

Can you kindly point me to the policy document which states the above please. I cannot see anything in the IDI's that supports that.

Do you have a link to any policy documentation that explains EC albeit having an existing one which becomes null and void at the issuance of a new one? The answer might be there.

Anyone can post if you know.
And anyone can read the documents more carefully. I'm not going to go trawling for it. There is enough evidence on these forums to back up what I am saying.

Victoria

Trust me Vic, I have read through the policy document and other IDI's. There is nothing as far as I have read, which says that, residency is broken when a new visa is obtained from abroad which supercedes the currently held one. As far as I know, the rule falls on events that stops the clock and so long as residency is maintained whilst a person is abroad, I put it to you (a more lawyerly language) that, residency is maintained.

Of course, I know that one EC supercedes the other but that is not my argument. I will email the Public Enquiry Office concerning this and will come back to the board.

NB: Note that, I have contributed immensely to many post on the LRC and also the link Docterror provided below, I am there as well.

VictoriaS · Post by **VictoriaS** » Thu Nov 15, 2007 1:49 pm

Unfortunately, I can guarantee that you are wrong, as I and many other immigration professional have received refusals for our clients on the basis that the applicant has left the UK whilst in possession of one visa and re-entered on another. In one case I persuaded the Home Office to overlook this, as this was done on their advice, but this was concessionary.

The IDI states:

"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 be resuming his continuous residence, but will instead be starting a new period of
residence in the UK."

The key here is "to continue that period of existing leave." So, if someone leaves on one type of visa and enters on another, he is not coming to continue his leave, but is coming on new leave, ergo, this is interpreted as a break in residency.

Victoria

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