Case advise 10 year ILR

[doc007]

I'm new to the immigration forum I wish to ask for advice.

I'm applying for 10 year ILR by post shortly.

My case details:

Entered UK in 1995 in late adolescence

Medical School in UK 1995-2000

Post study work visa 2000-2001

Permit Free Training granted Feb 2002

PFT Extension 2005 to Oct 2008

Work Permit Oct 2008

Tier 2 August 2009 - Present (Expires Aug 2014)

Cont. leave to remain from Jan 2002 to present

Working as hospital doctor in NHS, currently employed with them.

Single gap in 2003 - 240 days to recover following serious violent robbery and assault in UK with fracture/surgery needed (evidenced with hospital/police records). Returned to Canada to recover and also bereavement of my grandmother occurred shortly after this. Full commitment to UK applying for jobs from abroad and return.

No other major gaps, just short breaks for conferences and city breaks, leave less than 18 months overall. Good character, no criminal history, supporting references from work and registration with medical council.

1) What are my chances for success in my case with discretion and compassion for this gap?

2) Will I be affected by the 9th July 2012 rule changes for settlement?

3) Can article 8 privacy be applied to my case for private life since entering UK in adolescence and full adult life experience in the UK as a medical student and currently doctor in good standing with significant connection over 17 years to UK.

I thank everyone for their advice on my case.

[asim72]

As per the guidance, continuous residence is broken if the applicant was absent from UK for more than 6 months.
There does not seem to be any discretion for caseworkers on compassionate grounds.

I will also try to explain what effects new rules will have on your circumstances.

If you apply now, then you do not qualify due to your absence, and according to new rules right to private life will only be established if you have 20 years residence. Anything under that will be a straight refusal.

But you still do not need to worry, and there is still good news for you.

10 years lawful residence rule itself has not been scrapped under the new rules, and all the criteria remains the same.

So now, you can count your 10 years residence from the date you entered back in UK after your 240 days absence. It will be at some point in 2013 (calculate yourself).

In the meantime please ensure you keep meeting all the requirements, do not get a criminal conviction. Traffic offence convictions in court are also criminal convictions and will bar you from settlement.

You will need to pass Life in the UK test. I am not sure if you are exempt from new B1 level requirement that is coming into force in september 2013. Either some other member will clarify this, or I will drop a message once I ascertain.

[doc007]

Thank you for your helpful advice. I have a few further q's pls:

Can I confirm with you for 10 year cases before and after 9th July 2012:

1) Regarding ECHR Article 8 private life, is this rule changing as well as applied to 10 year cases after 9th July 2012?

2) I understand the 10 year rule is staying the same but could I apply after 9th July 2012 for 10 yr ILR with ECHR Article 8 Privacy in 2013 for example?

[asim72]

Thank you for your helpful advice. I have a few further q's pls:

Can I confirm with you for 10 year cases before and after 9th July 2012:

1) Regarding ECHR Article 8 private life, is this rule changing as well as applied to 10 year cases after 9th July 2012?

2) I understand the 10 year rule is staying the same but could I apply after 9th July 2012 for 10 yr ILR with ECHR Article 8 Privacy in 2013 for example?

Now, according to statement of intent, they will publish separate forms for applying under article 8.

So, either you apply under 10 years rule in 2013, or you apply under article 8 rules.

Article 8 applications were not made under any immigration rules upto now. Anyone could make an application, and mention article 8 claim, either with an application under rules, or on a separate application form, or even by sending representation. Every case was judged "on its merit" as they call it.

But now what UKBA has done is, they have tried to define which article 8 claims are worthy to be granted leave to remain, and they have set a criteria to measure those claims. Under this ciriteria, you do not have any article 8 rights. Or at least that is my understanding.

But once you pass your 10 years lawful residence, which will be some date in 2013, you will just need to make a simple application, and you will fly through easily. There will be no need whatsoever to cite article 8 or anything.

The only requirement according to rules will be:

That you have spent 10 years lawfully in the UK.
You have passed Life in the UK Test. (Plus that B1 thing if its applicable)
Have no unspent convictions.
&
and that you have made an application and paid the fees.

Thats it. No other documents or proofs are required for this application.

[doc007]

Thx Asim for your quick reply.

I understand what you mean for the 2013 application being much easier in my case and that is my continued aim, however with the article 8 ECHR coding as part of family rules intent from June 2012, they are quite complex!

How does this effect laws governing full settlement period after 9th July 2012? Does one have to complete a 5 year probation before citizenship after a 10 year ILR case application after 9th July 2012 versus 1 year before this date? Or are they saying this may change in the future?

It states for Part 7 of Other Category Applications Appendix FM:

'Person exercising access rights
Indefinite leave
to remain
• 5 year probationary period
• B1 speaking and listening skills
Was 248D, now
must apply under
Appendix FM.'

This also includes the advice you mentioned about B1 in Oct 2013.

Does this mean that anyone applying for settlement irrespective of a family case, ie: a long stay worker with lawful cont. residence will require a new 5 year probationary period for ILR under 10 years long stay for example?

The full document Statement of Intent Family Migration is available here:
http://www.ukba.homeoffice.gov.uk/sitec ... am-mig.pdf

1) Should I wait or apply before 9th July 2012 given these new rule changes? Also taking into considering my current gap in the last 10 years?

2) Would this effect my period of settlement (if granted) before future possible citizenship from 1 year to 5 possibly 10 years?

3) Should I continue to work and aim for 2013?

I'm grateful for any further thoughts/advice. Thank you.

[asim72]

Now, the 10 year lawful residence route remains totally intact, and totally as it is now. (apart from that B1 thing). Once you apply for ILR under this category, you get ILR straightaway. No more probation or waiting or anything. Simple.



1) Should I wait or apply before 9th July 2012 given these new rule changes? Also taking into considering my current gap in the last 10 years?
New rules do not effect you in any way.
(apart from B1 thing which effects if you apply from ocotober 2013 onwards,)

2) Would this effect my period of settlement (if granted) before future possible citizenship from 1 year to 5 possibly 10 years?

Once you are granted ILR as a result of 10 year application, you will have "settled" status automatically. ILR=settlement. You can apply for naturalisation as a British Citizen one year after ILR

3) Should I continue to work and aim for 2013?
Yes.

[doc007]

That's brilliant cheers Asim!

Essentially it's the additional English test for October 2013 for future 10 year ILR and no change until then for this long stay category.

I can continue with my work plan ahead and also get the SAR file to further prepare.

Just to clarify with you about continuous residence:

Regarding discretion for 6 month periods for residence requirements, can I refer to-

UKBA Long Residence Guidance
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Page 19 - 28 May 2012

Time spent outside the UK

Continuous lawful residence is not broken if the applicant has a gap of leave outside the UK of less than six months. For example, applicants who leave the UK before their valid leave expires, and obtain fresh entry clearance and re-enter the UK, do not break continuous lawful residence, providing the absence from the UK is less than six months.

Continuous lawful residence is broken if the applicant:
- has a gap of leave of six months or more, or
- departs the UK after their valid leave has expired.

Discretion for breaks in lawful residence

You must always discuss the use of discretion with a senior caseworker. You must be satisfied that the applicant has acted lawfully throughout the whole 10 year period, and has made every effort to obey the Immigration Rules. The decision to exercise discretion must not be taken without consent from a senior executive officer (SEO) or equivalent.

How much flexibility does the home office offer on discretion in Long Residency for breaks as above?

Thanks once again

[asim72]

If you were not going to meet the residential requirements then maybe just applying with request to exercise discretion would have been the way.

But since you are going to meet residential requirement in near future, I don't think its worth asking for discretion on an application which on the face does not meet requirements on this day.

There is no quidance about any factors that should be taken inot account. People find word "discretion" very promising, but practically in many cases the reality is totally different. Discretion after all is what it says, discretion.

And, I am in danger of again repeating myself, but why would you want to rely on discretion (and there is no guarantee it will be exercised), when you will meet requirements under the rules which are binding on UKBA.

[doc007]

That answer's all my questions. Thanks for your considered advice

[kimnjuka]

I'm new to the immigration forum I wish to ask for advice.

I'm applying for 10 year ILR by post shortly.

My case details:

Canadian national, doctor

Entered UK in 1995 in late adolescence

Medical School in UK 1995-2000

Post study work visa 2000-2001

Permit Free Training granted Feb 2002

PFT Extension 2005 to Oct 2008

Work Permit Oct 2008

Tier 2 August 2009 - Present (Expires Aug 2014)

Cont. leave to remain from Jan 2002 to present

Working as hospital doctor in NHS, currently employed with them.

Single gap in 2003 - 240 days to recover following serious violent robbery and assault in UK with fracture/surgery needed (evidenced with hospital/police records). Returned to Canada to recover and also bereavement of my grandmother occurred shortly after this. Full commitment to UK applying for jobs from abroad and return.

No other major gaps, just short breaks for conferences and city breaks, leave less than 18 months overall. Good character, no criminal history, supporting references from work and registration with medical council.

1) What are my chances for success in my case with discretion and compassion for this gap?

2) Will I be affected by the 9th July 2012 rule changes for settlement?

3) Can article 8 privacy be applied to my case for private life since entering UK in adolescence and full adult life experience in the UK as a medical student and currently doctor in good standing with significant connection over 17 years to UK.

I thank everyone for their advice on my case.

How comes you didnt apply 10 years in 2005 mate,, what were u waiting for, or the 14 years you could have applied for that if u had gaps in between...u could have been british by now Mate