Student Visa + HSMP = 5+ years

[Obezag]

I came to the UK in 2006 on a student visa to take a master's degree. Part of the appeal of the program was that it was listed for automatic acceptance for an HSMP visa. After the program, while looking for work, I left the country briefly, before getting the HSMP visa, but a few days after my student visa expired. I was disallowed entry and returned to the US for 7 weeks before my visa came through. I returned to the UK in February 2007 and have lived here since. In 2009, I applied for and received an extension to my HSMP visa....converting it to a Tier 1 visa.

I would like to apply for ILR. I believe I would certainly be able to do this in January, within 28 days of when I will have been here legally in the UK without incident.

However, I would like to apply now if possible.

1. Does time spent in the UK as a student count toward the 5 years of residency required to apply for ILR?
2. Will my time of overstay of my student visa (I believe it was about a week) disqualify me from using my time here as a student? What I have read seems to indicate that the case workers have some discretion on this point. What would they base the decision on?

Thanks in advance.

[PaperPusher]

1 No
2 Irrelevant, see answer to 1

[gaurav76.5]

No..The rule states that you need to be on working visa (combination of Tier 1/HSMP?work permit) for continuous 5 years to be eligible for ILR

[Obezag]

Thanks for the replies. It's frustrating that I couldn't find this rule in my research. Where is it?

[PaperPusher]

245CD. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain, a Tier 1 (General) Migrant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974 unless the applicant is applying under the terms of the HSMP ILR Judicial Review Policy Document.
(b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(c) Unless the application is being made under the terms of the HSMP ILR Judicial Review Policy Document, the applicant must have spent a continuous period of 5 years lawfully in the UK, of which the most recent period must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:
(i) as a Tier 1 (General) Migrant,
(ii) as a Highly Skilled Migrant,
(iii) as a Work Permit Holder,
(iv) as an innovator,
(v) as a Self-Employed Lawyer,
(vi) as a Writer, Composer or Artist,
(vii) as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant, or
(viii) as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010.
(d) if the applicant has or has had leave as a Highly skilled Migrant, a Writer, Composer or artist, a self-employed lawyer or as a Tier 1 (General) Migrant under the Rules in place before 19 July 2010, and has not been granted leave in any categories other than these under the Rules in place since 19 July 2010, the applicant must have 75 points under paragraphs 7 to 34 of Appendix A.
(e) Where the application is being made under the terms of the HSMP ILR Judicial Review Policy document, the applicant must have a continuous period of 4 years lawful leave in the UK, or 5 years lawful leave in the UK if the applicant applied to the HSMP between 3 April 2006 and 7 November 2006, received an approval letter and came to or stayed in the United Kingdom on the basis of that letter, of which the most recent must have been spent with leave as a Tier 1 (General) Migrant, in any combination of the following categories:
(i) as a Tier 1 (General) Migrant;
(ii) as a Highly Skilled Migrant;
(iii) as a Work Permit Holder; or
(iv) as an innovator.

http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/

You should also read this page if you applied for HSMP before 7 November
2006.

http://www.ukba.homeoffice.gov.uk/worki ... 9/#header2

[Obezag]

That makes it very clear, thanks.

But have you ever heard of an exception being made? The reason I ask is: I'm married to an EEA National so I can stay and work in the country anyway; there is little incentive for them to refuse me the ILR. Or are they always completely by-the-book, so to speak, about the rules?