can i apply ILR 10 years be4 expiring my current visa?

[orchidw1]

Hi!

I am a non-eu national.
I came to uk 1997 as a full time student and got a 7-year student visa, during my study i met my eu national (Spanish) partner. After finishing my study i got a family member of EEU Visa for 2 years, and i extended my visa as a family member of EEU expiring 2013 (5 year).
i am working full time for 3 and half years as well.

basically, i've been living in u.k for almost 12 years without any big gaps (I am sure the total absent dates are less than 11 months).

but the problems is that we are separating now (he has decided to go back to spain this summer for good and I am not going with him). I understand that as soon as he leaves uk, I loose my ground to stay in here.

so here's my question, am i eligible to apply ILR based on 10 year residence even though i have my visa left (almost 4 years)? i know i can just stay in u.k if i dont' say anything, but I won't abuse the system.

thank you for your help in advance.

[RAJ2007]

It would be better to understand if you could mention the exact month/year of your various visa that obtained you while you are in UK and advice accordingly.

[orchidw1]

hi these are further infos.

i had student visa for Sep.1997-Oct.2004
extended student visa for Oct.2004-Sep.2005

met my partner in 2002

applied EU family member (unmarried partnership) on Aug.2005 and got visa for Jan.2006-Jan08 (2years)

applied Eu family member again on Dec.2007 and got visa for May.08-May.2013 (5 years)

there were gaps between visas but they all were applied before they were expired.

thank you for your help

[f2k]

I dont think you have to wait for your current leave to get close expiring. Were you advised or did you read anywhere that you had to wait?

Have a look at the caseworker guidance notes HERE

Also have a look the application form SET(O) and the guidance notes.

Also the immigration rules 276[/url]

[orchidw1]

thank you for the reply.
I spent some time on here to find out, but i couldn't find the exact info i was looking for.
it seems like one could apply ILR when it reaches 10 years but i also know that home office rejects applications which are applied more than 28 days before it expires.
i am wondering whether this is the case or not.

thank you

[Wanderer]

I thought when u switch routes ur clock resets - u'd better check....

[Rozen]

thank you for the reply.
I spent some time on here to find out, but i couldn't find the exact info i was looking for.
it seems like one could apply ILR when it reaches 10 years but i also know that home office rejects applications which are applied more than 28 days before it expires.
i am wondering whether this is the case or not.

thank you

You switched from UK route to EU route, so you've basically 'lost' those pre-EU Family Member years. Sorry, the only way out (as far as remaining in the UK goes) is to try for HSMP or something along those lines.

[f2k]

thank you for the reply.
I spent some time on here to find out, but i couldn't find the exact info i was looking for.
it seems like one could apply ILR when it reaches 10 years but i also know that home office rejects applications which are applied more than 28 days before it expires.
i am wondering whether this is the case or not.

thank you

its 28 days before the 10years expire. i pasted the caseworker guidance notes so you could see for yourself what the caseworker requirements are.

The way i understand it is that it has to 'Continous lawful residency' (see the guidance notes, forms, caseworker guides etc), so am not convinced that by switching to EU route you have 'reset' your clock in anyway. I stand corrected of course. Hopefully members will post links to support this or mention cases that they may be aware of

[vinny]

However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence.

[orchidw1]

thank you all for the replies.
i read the guideline but i am still confused by the sentences below and the replies about resetting the clock

(2.3.8 Time spent in the UK with a right to reside under the EEA Regulations)
"During their time here under the provisions of the EEA Regulations, the individuals would not have been subject to immigration control and would not have required leave to enter or remain. Therefore, t[b]hey would not fall within the definition of lawful residence[/b] given at paragraph 276A.
However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a[b] lawful capacity[/b]. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence."

does it mean staying with EEA visa's not lawful residence? if it's not recognised as a lawful residence in uk, there's much i can do. but if it is, switching the route shouldn't be an issue, shoud it?
i am even more confused now.

thank you very much for your help.

[f2k]

However, the family members of EU/EEA nationals exercising their treaty rights to reside in the UK are here in a lawful capacity. Provided they meet all of the other requirements, discretion may be exercised to count this time as if it were lawful residence

I think you should apply especially now whilst you are still in good books with your partner and before they return to Spain

[magsi23]

I thought when u switch routes ur clock resets - u'd better check....

It doesnt, as long as its continious legal stay

[Wanderer]

I thought when u switch routes ur clock resets - u'd better check....

It doesnt, as long as its continious legal stay

Yeah, I was thinking about marriage routes - clocks reset then (I think!)