I have contacted few solicitors and all have different opinion.
Reply from one of the solicitor is :
You need to be able to show 5 years continuity in the UK in the relevant immigration categories in order to apply. Your leave as HSMP and Tier 1 (General) are relevant categories, but as you know I had concerns whether you could, if you made an application in February demonstrate a full 5 years.
The relevant dates are:
- 15 February 2008 – HSMP visa granted
- 29 March 2008 -entry for interviews
- 28 June 2008 – entry in order to start work
You will note from the application form at question.6.1 that you are asked to state the date you entered the UK , this being the beginning of the period of your stay on which you application is based. This is the relevant date for calculating continuity. The date on which your visa was granted is not relevant to this calculation. The question then arises whether if the first date was March or June 2008, you can submit an application for ILR in early February 2013.
I have checked the most recent guidance on calculating continious periods for the purposes of ILR applications which was issued in December 2012:
(
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
This provides (see page 12):
“The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period, as long as it does not exceed 90 days. This can occur if the applicant is delayed travelling to the UK. Provided the period of delay does not exceed 90 days, it will not be counted as an absence.”
If the relevant date of your entry was 28 June 2008, the earliest you could make an ILR application would therefore be 29 March 2013, (ie no more than 90 days before entry) however, since your current leave expires on 15 February 2013, this is not possible.
If the relevant date of entry was 29 March 2008, the above guidance would appear to be of assistance – since an application made in w/c 4 February 2013, would be less than 90 days before the 29 March, however, the guidance also says in relation to absences generally:
“ If the absences are in connection with other employment outside the UK, which demonstrates the UK employment is secondary, these are not permitted absences, and the continuous period requirement is considered broken.”
You have told me that you left the Uk in early April 2008, after your interviews, and returned to work for your then employer in France, and then took some time off on holiday in India. It seems to me that the period you spent working for your old employer will therefore break your continuity, so that the relevant date is 28 June 2008.
The effect of this is that you are not yet in a position to apply for ILR. I have checked my understanding with colleagues over the weekend, and they have confirmed they agree with my analysis.
ACcording to her it juts now depends upon caseworker , how extremely he/she takes that absence. Case can be cleared or it can be suspended. She has some concerns for this.
Any suggestions??
