ILR - 5yrs continuous residence calculation (break in visa)

bala_2020 · Post by **bala_2020** » Thu Oct 11, 2012 12:47 am

Hi Jami / Sushdmehta / Senior members,

I have been trying to find answer for my question, will I be eligible to apply for ILR in december 2012 with the following situation:

My Visa Details:
-------------------
1. WorkPermit valid from 21/11/2006 to 21/11/2008
2. WorkPermit valid from 18/12/2008 to 18/12/2010
3. Tier 1 (General) valid from 05/03/2010 to 05/03/2013

First, I came to UK on 26/11/2006 and left on 24/12/2006 for working in off-shore. [on-shore is UK and off-shore is India]

Claimed continuous residence period: (6-Jan-2008 to 5-Jan-2013)
--------------------------------------------
1. Came back to onshore UK on 06-Jan-2008 and left on 06-Sep-2008 for my engagement on paid leave(UK pay scale).
2. Came back to onshore UK on 15-Sep-2008 and left on 15-Nov-2008 for my marriage. (due to personal reason not able to plan properly)
3. Came back to onshore UK on 04-Jan-2009 and left on 30-Apr-2010 on paid leave (UK pay scale).
4. Came back to onshore UK on 29-May-2010 and left on 16-Aug-2010. [since my daughter was born in india and for carrying out my resignation formalities in india] not on paid leave.
5. Came back to UK on 11-Sep-2010 and left on 26-Dec-2010 for vacation to see my daughter on paid leave(joined new job on 23-Oct-2010 and I was searching for job between 11-Sep-2010 and 23-Oct-2010 on Tier 1 Visa).
6. Came back to UK on 01-Jan-2011 and left on 27-Aug-2011 for my daughter's birthday on paid leave(UK pay scale).
7. Came back to UK on 11-Sep-2011 and till date (UK pay scale).

My puzzling question's are,
a) will my continuous residence will be broken between 22/11/08 and 17/12/2008 ? When I depatured from UK and arrived back, I was having valid visa and the break is less than 3 months outside uk. under casework discretion basis can this break be disregarded? (since I went to india for my marriage)

There is a reference in ILR via Long residence policy guidance document as below:
A person enters the UK on 1 September 2004 with entry clearance as a student which is valid until 31 October 2005.
- On 25 October 2005, before the previous leave expired, the person departs the UK.
- On 5 January 2006 the person re-enters the UK with valid entry clearance as a student
Question Has continuous residence been broken?
Answer No. The person had valid leave on the date of their departure and on the date of their return to the UK, and the time spent outside the UK was less than six months. Continuous residence has been maintained, even though the person entered the UK with a fresh grant of leave.

Jami also referred in this forum, but don't know is it applicable for 5 yrs stay.

b) will my continuous residence will be broken between 16-Aug-2010 and 11-Sep-2010 ? I went to india, since my daughter was born (pre-mature baby) and to carry out resignation formalities (I was in Tier 1 general visa)?

Total days spent outside UK - 130 days [in this 5 years]
Haven't spent more than 45 days in single trip.
Among 130 days, 70 days are annual paid holidays.

Please can you clarify in this regard, will my continuous residence is broken when I apply for ILR in december 2012?

Thanks in advance. If any information is not clear, please do let me know.

bala_2020 · Post by **bala_2020** » Thu Oct 11, 2012 9:00 pm

Hi All,

Please can you reply, if you have any information.

wpilr_nov12 · Post by **wpilr_nov12** » Fri Oct 12, 2012 9:57 am

I think you would help readers / forum members by presenting your information in a clearer manner.

What you are asking readers to do is piece together the information you have provided, and create a chronological order of events out of it, and then evaluate your situation.

Simple things like:

These are my visas details (applied, stamped, UK entry, exp, category)

These are my absences (dates, days).

I am sure that way you would get you more valuable and useful initial feedback from forum.

Irrespective of reason, you do not want to be in breach of 90/180 rule to be on safe side.
After that, you do not want to be in any 'out of date' situation.

bala_2020 · Post by **bala_2020** » Fri Oct 12, 2012 12:53 pm

Hi wpilr_nov12,

Thanks for pointing the issue. Please find my re-phrased details as below:
Visa Details:

Code: Select all

Category                      Valid From	        Valid To
Work Permit (ICT)  	   21/11/2006	       21/11/2008	
Work Permit (ICT)  	   18/12/2008	       18/12/2010	
Tier 1 (General)          05/03/2010	       05/03/2013

Absences - excluding departure & arrival date

Code: Select all

			
Comments	                        From Date	       To Date	          Days
Paid Annual Leave	       07/09/2008	       14/09/2008	            7
Working from off-shore     16/11/2008       03/01/2009	           48
Paid Annual Leave	       01/05/2010	      28/05/2010	           27
Personal Reason   	       17/08/2010	      10/09/2010	           24
Paid Annual Leave	       27/12/2010	      31/12/2010	             4
Paid Annual Leave	       28/08/2011	      10/09/2011	           13
			                                                                  123 days

Continuous Stay Details(6-Jan-2008 to 5-Jan-2013)

Code: Select all

			
Visa Type	                        From Date	        To Date	
Work Permit (ICT)	       26/11/2006	        24/12/2006	
Work Permit (ICT)	       06/01/2008	        06/09/2008	
Work Permit (ICT)	       15/09/2008	        15/11/2008	
Work Permit (ICT)             04/01/2009 	30/04/2010
 + Tier 1 (General)		
Tier 1 (General)	               29/05/2010	        16/08/2010	
Tier 1 (General)	               11/09/2010	        26/12/2010	
Tier 1 (General)	               01/01/2011	        27/08/2011	
Tier 1 (General)	               11/09/2011	        till date

My concern is,

am I broken my continuous residence b/w 22/11/08 and 17/12/2008 while I was outside UK (without visa)?

Please let me know, if any further information required?

Thanks in advance.

bala_2020 · Post by **bala_2020** » Mon Oct 15, 2012 12:51 pm

Hi Moderators / Senior Members,

Please can you help in this regard?

Post by **geriatrix** » Sat Oct 20, 2012 3:31 pm

Have you broken continuous residence?
According to the law, yes.

Can you get away with it?
Probably.

What was the date of issue of WP authorisation letter on the basis of which applied for entry clearance as a WP migrant in Nov / Dec 2008?

bala_2020 · Post by **bala_2020** » Sat Oct 20, 2012 5:08 pm

Hi Sushdmehta,

What was the date of issue of WP authorisation letter on the basis of which applied for entry clearance as a WP migrant in Nov / Dec 2008?
01/12/2008

Post by **geriatrix** » Sun Oct 21, 2012 2:05 am

Based on that, I don't think you an get away with it.

bala_2020 · Post by **bala_2020** » Sun Oct 21, 2012 10:02 am

Hi Sushdmehta,

Is there any possibility of using discretion in my case to disregard the break?

Please can you share, how the issue date of WP (01/12/2008) plays an important factor in my case?

will any below rules, help in this regard?(rules for Tier 1/ILR visa)
- 10 days exception (without visa in country)
- continuity of residence broken due to absences abroad
- 28 day period of overstaying for Tier 1

-------------------------------------------------------------------------

Unconfirmed information: (supporting evidence not yet collected)
1. Actually, I have applied for the extension before leaving uk on 15/11/2008. I vaguely remember that I got extension WP letter approved but I need to travel for personal emergency so I have explained my situation and got my passport back before visa stamping for the travel(with the agreement that i will apply from india asap). To confirm that I have asked for SAR and contacted my employer. waiting for their reply. Will this help in this regard?

Post by **geriatrix** » Sun Oct 21, 2012 1:40 pm

If you can "prove" that your WP authorisation was issued before you left UK (or before your leave valid then expired) then you may have grounds to suggest that you had definite "intention of return to UK" even though there was a period of "no leave" during the qualifying residential period and request the caseworker to apply discretion in your favor.

bala_2020 · Post by **bala_2020** » Sun Oct 21, 2012 2:12 pm

Hi sushdmehta,

I really thank and appreciate your wise advice in this regard.

Will update you, once I get an update for SAR / from my employer regarding my unused WP authorisation letter whether it is truth or my invalid assumption.

One thing I can notice, in my Work Permit approval letters are: (both are applied from india)

1. 1-st WP UK BA reference is in the format XXX/XNNNNNN/001
2. 2-nd WP UK BA reference is in the format XXX/XNNNNNN/003

where X - is alphabets
N - is a valid +'ve numbers
XNNNNNN - is my worker reference number.
From your experience, have you noticed any sequence being followed by the UKBA in this regard?

ramay · Post by **ramay** » Mon Oct 22, 2012 12:36 pm

Have you applied for the next WP before or after this date 21/11/2008???
if before then you have a continues residency if after may not..

bala_2020 · Post by **bala_2020** » Mon Oct 22, 2012 9:37 pm

Hi ramay,

I applied for WP extension before 21/11/2008 but not sure my employed applied or not. But I am sure, I haven't applied for visa stamping since I have to travel urgently. conversion with my employer, i vaguely remember that employer got the WP extension and yet to apply for visa stamping. I went to india at this stage and applied asap in india and got new WP approval letter on 01/12/2008 and EC visa stamping on 18/12/2008. For confirmation, I have requested for SAR and further information from my employer. Waiting for their reply.

Might be silly question , is worker reference number in WP is to identify employee (or) employer?

ramay · Post by **ramay** » Mon Oct 22, 2012 10:30 pm

bala_2020 wrote:Hi ramay,

I applied for WP extension before 21/11/2008 but not sure my employed applied or not. But I am sure, I haven't applied for visa stamping since I have to travel urgently. conversion with my employer, i vaguely remember that employer got the WP extension and yet to apply for visa stamping. I went to india at this stage and applied asap in india and got new WP approval letter on 01/12/2008 and EC visa stamping on 18/12/2008. For confirmation, I have requested for SAR and further information from my employer. Waiting for their reply.

Might be silly question , is worker reference number in WP is to identify employee (or) employer?

..
hmm.. strange usually they do in one set: letter,visa, then sending docs back..
unusual situation.. need to be well prepared before apply..(SAR, good solicitor..)or ask them (HO)

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ILR - 5yrs continuous residence calculation (break in visa)