ILR >90 days and Visa gap

sy2012 · Post by **sy2012** » Wed Aug 22, 2012 2:41 pm

Hi All,

I am planning to apply for ILR in Sep-2012 and wanted to get the expert views as my information on websites and solicitors has not really helped. Following is a brief overview of my stay:

Entered UK on 07-Oct-2007 on WP
Visa extended until 23-Sep-2010 (Tier 2)
In Aug-2010 I had to go back to India due to work
New visa applied in India before expiry of previous visa. New Visa start date from 25-Oct-2010.
Came back to UK in early Nov-2010. Total days outside in that trip was 92. Due to this the overall days outside UK in 5 years is 233.
As per the other posts I have read here the >90 days is discretionary however I would have a chance if I can get letter from employer that it was for official purposes. However I do not have a clue about this Visa gap.

I have spoken to a solicitor who does not seem to know much and is charging me £1000 almost only for booking an appointment (he said he would not even accompany me to the PEO!)

Any help would be greatly appreciated as I have seen lot of people get help from these forums and get their application processed successfully.

Thanks in Advance.

Post by **Lucapooka** » Wed Aug 22, 2012 2:47 pm

Applying for a new visa before the current one expires is only relevant to applications made inside the UK. Your old visa expired outside the UK on Sept 23, 2010 but the new visa was not issued until Oct 25. That is more than a month and that is a gap in your residence. That's not to say it will not be disregarded as a gap by the caseworker, but there are no guarantees of this.

sy2012 · Post by **sy2012** » Wed Aug 22, 2012 3:27 pm

Thanks very much for getting back so quickly Luca. Just to clarify do you think there might be a chance that the caseworker might ignore that as a gap? Are you aware of any such instances or related posts? And finally, do you think I should continue with the solicitor or try and go on my own.

Thanks again.

cs95tdg · Post by **cs95tdg** » Wed Aug 22, 2012 9:35 pm

You may find it useful to look at other cases where applicants have either succeeded or failed in their ILR application when they have had absences that go over the allowed threshold.

There are several forum topic links provided under the "When absences exceed the permitted lmit" section in the FAQ sticky for ILR below:

http://www.immigrationboards.com/viewtopic.php?t=79378

uksettlement · Post by **uksettlement** » Thu Aug 23, 2012 7:49 am

The visa gap might be a problem as continous stay is based on the premise that the person has completed 5 yrs on a continous visa. I could be wrong but it's worth checking with UKBA b4 applying for ILR

sy2012 · Post by **sy2012** » Thu Aug 23, 2012 11:16 am

Thanks @cs95tdg and @uksettlement for your comments. I had a look at the posts suggested in @cs95tdg post however could not find a similar case. Looks like there is very little chance due to the Visa gap. I will try and contact UKBA to see if they can provide any information. If you find anything related to my issue please let me know. Thanks for your help again.

Post by **Lucapooka** » Thu Aug 23, 2012 12:16 pm

Within the past week or so, there was a similar thread from a member citing the precise wording of a CW refusal statement for exactly this situation (WP/Tier2 leave with a month or more gap between expiry and issue of entry clearance). I did a quick search but could not find it for you.

sy2012 · Post by **sy2012** » Fri Aug 24, 2012 6:08 am

Thanks for your help Luca. I also tried to find something related to this however could not find anything. I will try and find the post you have mentioned and put it here for completeness. Meanwhile I am planning to get my Tier2 extended from my employer and then give a go so that there is a better chance as it would prove that the employer wants to extend my stay here.
Thanks again.

sy2012 · Post by **sy2012** » Fri Nov 23, 2012 11:22 am

Sorry to revive an old topic however I thought its best to continue this discussion in this post.

Based on the new rules coming into effect on 13-Dec-2012 does my application now hold a better chance? I'm referring to the new change as below:

“continuous period of 5 years lawfully in the UK” means residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:
(ii) the applicant has existing limited leave to enter or remain upon their departure and return, except that where that leave expired no more than 28 days prior to a further application for entry clearance, that period and any period pending the determination of an application made within that 28 day period shall be disregarded;

I have not applied for ILR yet and instead got my Tier2 - ICT extended.

Following are the dates again for reference:

Entered UK - 07-Oct-2007 (Work Permit)
Visa renew until 23-Sep-2010 (Work Permit)
Left UK - 07-Aug-2010
New CoS received - 07-Oct-2010
New Visa starts - 25-Oct-2010 (Tier 2 ICT) valid until 21-Nov-2012 (That's where I have more than 28 days gap in the actual visa although the application was submitted earlier)
I now have Visa extension received until Dec-2013 (Tier 2 ICT) however still plan to go for ILR

Thanks.

Post by **geriatrix** » Fri Nov 23, 2012 12:01 pm

If you applied for entry clearance before 21-Oct-10, then you should be eligible under the conditions of 245AAA(a)(ii).

sy2012 · Post by **sy2012** » Fri Nov 23, 2012 2:24 pm

Thanks @sushdmehta. I will check the application date for entry clearance however I'm quite sure that the application would have been earlier as the minimum duration for application processing at that time was a week.

I will post back with the details.

Post by **geriatrix** » Fri Nov 23, 2012 2:32 pm

I guess so too, but best to be 100% sure!!

sy2012 · Post by **sy2012** » Sat Nov 24, 2012 12:20 am

Just checked something else which puts me in further doubt. My new visa which I received on 25-Oct-2010 in India was a Tier 2 - ICT. Since this was after 06-Apr-2010 does this mean I do not fulfil the criteria of completing 5 years in one of the eligible Visa categories?

Lots of doubts

Thanks for all your help.

Post by **geriatrix** » Sat Nov 24, 2012 4:34 pm

Was your initial WP also granted as a intra-company transferee from the same employer as your Tier 2 (ICT)? If yes, then you should be fine.

sy2012 · Post by **sy2012** » Sat Nov 24, 2012 9:10 pm

Thanks @sushdmehta. Yes, i've been with the same employer for all the duration. Please could you help with a link where I could read about it? Just so that I am prepared in case the case worker points it out?

Thanks.

Post by **geriatrix** » Sun Nov 25, 2012 5:07 am

Read about what?

sy2012 · Post by **sy2012** » Sun Nov 25, 2012 12:13 pm

That Tier 2 ICT granted after April-2010 is considered for ILR in case someone has been with the same employer and had the previous WP through the same employer.

Thanks.

Post by **geriatrix** » Sun Nov 25, 2012 5:34 pm

245GF(c) and 245GF(d)

The change relevant to your case, coming into effect on 13-Dec-12, that I have referred to above is described in paragraph 116 of this document under 245AAA(a)(ii).

sy2012 · Post by **sy2012** » Sun Nov 25, 2012 9:02 pm

Thanks @sushdmehta. I will post the details about my progress. I have got an appointment for 03-Jan and trying to get an earlier one (although looks unlikely)

Thanks again.

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ILR >90 days and Visa gap

ILR >90 days and Visa gap

ILR >90 days and visa gap

ILR >90 days and visa gap

ILR >90 days and visa gap

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