Tourist visa period valid for long residence? PEO says NO

I had gone for PEO (Crotdon) appt for 10 yr long residence. Couple of months was on tourist visa, rest was a variety of legal working type visas. All visas were continous, no gaps , no long out-stays etc.

I was refused ILR as they say tourist visa time is not counted as the intention is to go back after the visa.

The woman who screens downstairs marked my papers as valid on grounds of 10 yrs. The woman at the upstairs counter said they would keep my passports etc and send them back when I had achieved eligibility in a couple of months...that way I wouldnt need a fresh application. She said she had discussed it with a senior case worker....the woman at the counter was of barely normal intelligence and could not find all my visa stamps on the passport.

Can anyone show me a bit of law that states tourist visa time is counted towards 10 yrs long stay ILR?

I'm also worried about Lunar house taking forever to process things now that they have all my papers.

See also Updated (14/05/2008) Long Residence 'continuous residence' interpretation Determination Details. I guess that they may take the position that leave to enter/remain as a tourist lapses (20) after leaving the UK.

thanks Vinny,

On each occasion I left UK, I returned within the time-frame of the same entry visa as I had left on....that fulfills criteris of continous residence as laid out in IDI

The reason for refusal is that tourist visa implies intention to return, therefore, we will not count this period.

I would like to find something that states quite clearly time spent in tourist visa can count towards ILR.

Mr Cut,

Are you a visa national, i.e. did you have to have a visit visa to enter the UK?

If not, and you were given an entry stamp for 6 months by an Immigration Officer when you arrived here, then I would say that UKBA are correct, for the reason that they have stated - the visit finished when you left the UK, and you broke the continuity of your time here.

If, however, you came here with a visit visa issued at a UK Embassy abroad, you had what is described as "continuing leave" until the expiry of your visa, and if also you left and obtained a visa for another purpose before the visit visa expired, then I think you can claim your period as a visitor as part of your 10 years. The link kindly provided by Vinny shows how the court interprets continuous residence, and the rules only refer to having valid leave to enter or remain, not what type of leave to enter or remain.

So there is a clear difference between an entry stamp and a visa.

If also you were granted further leave while you were here as a visitor, you will probably be able to count the visit in your 10 years.

That's how I see it anyway

Mr Rusty,

As I explained, I oobtained my visa outside UK, I had a visit home during which I renewed my entry before the expiry of the previous one. It meets the standards of continous entry.

The PEO did not say that my residence was continous....what they quite clearly said is that, they would not count the visitor visa part of the whole thing.

I made a personal visit and paid a lot of money so I could have everything done at one go.....and becaus the idiots in home office dont know the rules, I am stuck and cant go anywhere. This is ridiculous....and I am powerless.

Is this really democracy or just buearocracy?

vinny wrote:See also Updated (14/05/2008) Long Residence 'continuous residence' interpretation Determination Details. I guess that they may take the position that leave to enter/remain as a tourist lapses (20) after leaving the UK.

Vinny thanks for this. As I read it and I have always believed in the judges interpretation, that residency is not considered to have been broken if a new leave was obtained abroad whilst there was existing leave and the applicant returned before the 6 months anniversary kicks in. Good news and I plan to use this next month.

The OP I believe would be caught by Paragraph 20 as quoted by Vinny above unless of course the leave was granted for more then 6 months.

I'm sorry, my previous comments were only partially correct, because I forgot the changes that came into effect about 6 years ago. Subsequent to that my comments about visit visas and "continuing leave" are correct. The visa itself is "leave to enter", and the Immigration Officer's role is only to verify that everything is correct.

However, before about 6 years ago, the visa was merely the permission to travel to the UK, and it was the Immigration Officer who granted leave to enter (normally for 6 months) on arrival. When the passenger left the UK, that was the end of the visit, and when /if he came back again he was granted entry again, i.e. a second visit, even if on the same multi-entry visa. In this case, there would be no continuity.

So if the visit(s) took place in the early period of your claimed 10 years, then UKBA is probably correct in disregarding them

Mr Rusty, I think that is a correct interpretation. But it does beg the question, as we move forward in time, whether the "new visa regime", I think it started in October 2000, would have made a difference? That is, if the OP's facts were all moved forward in time, so arrived in say 2001 rather than 1998, and making the application in 2011, not 2008, whether the conclusion would have been the same?

Personally I do not think it would be the same, if the visitor visa was "Mult" .... multi-entry. That is, there would still have been a valid visitor visa, even after leaving the UK.

Cut_here, obviously disappointing to you, but it could have been far worse! That is, they could have simply rejected the application, leaving you to reapply, and re-pay, in a couple of months time. So I am going to say .... great ..... you will get your ILR in a couple of months.

John wrote:Mr Rusty, I think that is a correct interpretation. But it does beg the question, as we move forward in time, whether the "new visa regime", I think it started in October 2000, would have made a difference? That is, if the OP's facts were all moved forward in time, so arrived in say 2001 rather than 1998, and making the application in 2011, not 2008, whether the conclusion would have been the same?

Personally I do not think it would be the same, if the visitor visa was "Mult" .... multi-entry. That is, there would still have been a valid visitor visa, even after leaving the UK.

Cut_here, obviously disappointing to you, but it could have been far worse! That is, they could have simply rejected the application, leaving you to reapply, and re-pay, in a couple of months time. So I am going to say .... great ..... you will get your ILR in a couple of months.

Wow, is it as long ago as 2000? How time flies.

I think it's strongly arguable that the multiple visits under the same visa can now be regarded as continuous leave, because the visa itself is "leave to enter", and the rules refer only to someone having valid leave to enter or remain. If an Immigration Officer wants to refuse entry to someone holding a visa he first has to cancel the leave conferred by it. Also, whereas before, someone could arrive in the UK the day before their visit visa expired and be granted entry for 6 months, now the holder's presence in the UK is limited to the dates on the visa.

I certainly agree with you that the OP has not been so hard-done-by.

Mr Rusty, John, Vinny & others:

Did any of you get the chance to read the determination? If you did, is my understanding in the above post right: Residency is considered continuous if leave did not expire before a new leave was obtained abroad if the absence (6 months and total 18 months) was not breached.

Thanks.

Only periods of "residence" count for the 10 year ILR. Being in the UK in a visitor's capacity does not amount to residence. You did not reside in the UK you had merely visited it.

jes2jes wrote:Mr Rusty, John, Vinny & others:

Did any of you get the chance to read the determination? If you did, is my understanding in the above post right: Residency is considered continuous if leave did not expire before a new leave was obtained abroad if the absence (6 months and total 18 months) was not breached.

Thanks.

Yes, I think that's what it says. And if somebody initially comes with a visit visa issued since October 2000 (the "new visa regime" referred to above by John), and then obtains a further visa before the first one expires it's arguable that the visit visa counts as part of the 10 years' leave, for the reasons I have already stated.
I think it would be impossible to get ILR on the basis of a series of overlapping visit visas, because if someone was spending so much time here as not to breach the periods of absence provisions, at some stage an ECO would refuse because the applicant was clearly not a visitor.

tvt wrote:Only periods of "residence" count for the 10 year ILR. Being in the UK in a visitor's capacity does not amount to residence. You did not reside in the UK you had merely visited it.

I did have residence and not visitors visa. I switched from one category to the other (WHM to Student) at that period but did that abroad with almost 14 months remaining on the WHM visa.

Thanks

Mr Rusty wrote:

jes2jes wrote:Mr Rusty, John, Vinny & others:

Did any of you get the chance to read the determination? If you did, is my understanding in the above post right: Residency is considered continuous if leave did not expire before a new leave was obtained abroad if the absence (6 months and total 18 months) was not breached.

Thanks.

Yes, I think that's what it says. And if somebody initially comes with a visit visa issued since October 2000 (the "new visa regime" referred to above by John), and then obtains a further visa before the first one expires it's arguable that the visit visa counts as part of the 10 years' leave, for the reasons I have already stated.
I think it would be impossible to get ILR on the basis of a series of overlapping visit visas, because if someone was spending so much time here as not to breach the periods of absence provisions, at some stage an ECO would refuse because the applicant was clearly not a visitor.

Thank you very much. I can now sleep in peace without any worry of this. I cannot bear another year of wait. As a precaution, I would be sending along a copy of the determination and also an email response I received from BIA earlier this year confirming that this is not a break in residency.
Thanks for all your help and I will definitely post my ILR success here.

Best wishes to all.

Mr Rusty wrote:Wow, is it as long ago as 2000? How time flies.

Well yes, and I remember it well, for the following reason. My own wife got her spouse visa.... then just for one year (not two years) ... in March 2001 .... and I remember at the time being very surprised by the format of the "Entry Clearance". I say that because I had not spotted that the "new visa regime" had come into force, prior to the visa being granted. So I was expecting her to be issued with the old-style "permission to proceed to the UK" visa, with the actual spouse visa issued on arrival.

Indeed the "new visa regime" nearly caused us a problem when applying for the ILR a year later. No warnings on the internet then about needing to enter the UK within 28 days of spouse visa start date! Indeed visa issued 15.03.01 ... she entered to UK on 14.04.01 ..... and realising the potential problem, we actually went along to the PEO for the ILR on 15.03.02 ... the date of expiry of the visa! Thankfully the ILR was issued! Wow!

Mr Rusty,

A visit visa does NOT constitute or confer continuing leave.

INSIDER wrote:Mr Rusty,

A visit visa does NOT constitute or confer continuing leave.

It does if issued for more than 6 months I believe.

INSIDER wrote:Mr Rusty,

A visit visa does NOT constitute or confer continuing leave.

Sorry, yes, you're right.
I've just found the Para which says this:-

"20A. Leave to enter or remain in the United Kingdom will usually lapse on the holder going to a country or territory outside the common travel area. However, under article 13 of the Immigration (Leave to Enter and Remain) Order 2000 such leave will not lapse where it was given for a period exceeding six months or where it was conferred by means of an entry clearance (other than a visit visa)."

jes2jes wrote:

INSIDER wrote:Mr Rusty,

A visit visa does NOT constitute or confer continuing leave.

It does if issued for more than 6 months I believe.

Jes2jes

Maximum period for a visit is 6 months, so any leave granted for more than six months would not be a visit.

Jes2jes,

I am in similar situation like u. Let us know what's the outcome of your application for ILR.

RAJ2007 wrote:Jes2jes,

I am in similar situation like u. Let us know what's the outcome of your application for ILR.

See this post below:

http://www.immigrationboards.com/viewtopic.php?t=2056

The bloke went over to Malaysia to apply for WHM Visa and this was counted as part of continuous residency. You should be fine.