ILR APPLICATION : 4 Year Work Permit or 10 Year Stay

[buddy009]

I have been in the UK for 9,5 years and I would appreciate any suggestion or help regarding the quickest route of obtaining an ILR. My situation is as follows:

- Came to UK on 15/Sept/94 to do a three year Bsc degree. Graduated in July 1997: throughout this period I have spent most of my holidays abroad i.e approx. 4 months in a year (3weeks Christmas + 2 weeks Easter + 12 weeks summer)
- One Year Msc: 01/Oct/97 - 15/Sep/98
- Two Year on TWES Work Permit: 15/Nov/98 - 27/Oct/00
- 3 Years + 4 months Work Permit: 02/Jan/01 - Current

Since starting my Msc Degree I have never been outside the UK for more than 6 weeks in a year (max. two weeks continuous absence in a year).

My first option is to apply on 16/August/04 based on 10 year residence. My second option is to apply at the beginning of 2005 based on 4 years Work Permit.

My aim is to get the ILR as soon as possible. Would the first route (10 year residence) take longer in the end to get approval than the second route. Because I know from this discussion board that some people who apply based on 4 year Work Permit route get same day approvals, however it may take the Home Office to decide longer based on the 10 year residence route. Can I get approval before this Christmas if I was to apply this August or am I better off waiting till next year and apply based on 4 year continuous work ?
Any Suggestions ?

[Joseph]

I don't think you would be considered as being here 10 years as continuous residence. I think your best bet would be to apply for ILR this December (28 days before 2 January 2005). You could easily get same day approval.

Joseph

[buddy009]

Why would I not qualify for ILR based on 10 year stay ?

Although my status in the UK has changed over the 10 year period, during all the transition periods (Student Visa to Twes , Twes to Normal Work Permit) applications were made whilst I was in the UK.

Is it that I spent too much time abroad when I was an Undergraduate ? Even so in the past 5 years I have not spent time abroad more than 6 weeks in a calender year.

Could you clarify ?

[Joseph]

buddy009

Long residence in the United Kingdom

276A. For the purposes of paragraphs 276B to 276D:

(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period 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 in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or

(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or

(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

(b) “lawful residence” means residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or

(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

According to what you said, I think you wouldn't qualify under 276A(a)(v) because you appear to have been absent from the UK more than 18 months total (cumulative) during the 10 years. Furthermore, I would argue that you may fall under paragraphs (a)(ii or iii) because the terms of TWES and Student visas generally require that you leave the UK after your training assignment or schooling is over.

Long residence ILR is complicated (because a caseworker will have to manually check the above points) while Work Permit ILR is straightfoward and easy. Even if you qualify for Long Residence ILR, it may take longer than WP ILR. As I said before, you can be assured of getting WP ILR before Christmas, so what's the problem waiting until you qualify for WP ILR?

If you still insist on the LTR ILR route, you should probably consult an immigration solicitor, but I think they will probably tell you the same thing.

Joseph

[buddy009]

Joseph,

Thank you for your reply, as you mentioned it would be a lot less complicated to apply on the basis of 4 Year Continuous Work rather than LTR.
I have got one more question regarding the timing of this application :

My work permit was stamped on 15/Nov/2000 until 14/Nov/2003. However I started working on 02/Jan/2001. When I applied for an extension last Autumn, I had stated work commencement date as 02/01/2001 therefore the Home Office must be aware of the time lag between the Work Permit Issue Date and Work Commencement Date. (by the way I got an extension till 14/Nov/2005). The question is when do I apply for ILR? October 2004 ? or December 2004 ?
In the end the sooner I get an ILR, the sooner I get naturalisation...

[Joseph]

buddy

By stamp I assume you mean the day you first entered the UK on your WP. That's when the clock starts, which is good news for you.

If that was November 15, then you can apply for ILR starting October 19, which is 28 days before.

Note that even though you can get ILR starting 3 years and 11+ months, you have to wait the full 5 years to apply for citizenship (i.e. 15 November 2005).

Joseph

[buddy009]

The application was made while I was in the UK, therefore the stamp means "when the Home Office stamped the visa on my passport".

[Joseph]

buddy
OK, that means the same thing, you can apply in October.
Joseph

[buddy009]

Thank you Joseph, you have been very helpful.

What would be a typical waiting period for naturalisation? (that is for when I apply for naturalisation next year)

[Joseph]

Buddy,

The recent waiting time for naturalisation is about 7 months. The trend seems to be a reduction in waiting times over the last few years. You can check the current waiting times on the IND website:

http://www.ind.homeoffice.gov.uk/default.asp?pageid=16

Regards

Joseph