ILR with Visa Gap

[ilrdep]

One of friend who has visa gap ,
His details are as follows:
First date of entry as WP holder: 03/07/2005
Travelled abroad: 29/09/2007
Leave to remain expired : 17/06/2008
Work permit expired: 25/04/2008
Applied for Work Permit : 16th June 2008 (before the Leave to remain expired)
Applied for EC after WP approval: 01/08/2008
Re-entered UK : 10/08/2008.
Total absence :11 months
Now he is applying on 14/03/2013 so that he can split the absence between the years and he is within the limits with respect to absence for the remaining period(<180 days/year)

He is worried whether this visa gap will be a problem for ILR (eventhough he has applied for WP before current leave expiry clause 200A ii ) , Can you please advice? your help is much appriciated.

[cs95tdg]

Even though he had LTR at the time he left the UK, his subsequent application was made outside the UK for EC, rather than a FLR application within the UK. At a glance it would appear that his continuous residence was broken when he left the UK on 29/09/2007. And his ILR clock would have restarted on 01/08/2008 (Second EC date).

While not exactly the same, you may find it useful to read the following topic, which is similar: http://www.immigrationboards.com/viewtopic.php?p=779830

[wpilr_nov12]

Why can't he wait until July and apply without worries?

[ilrdep]

Thank you cs95tdg The reason he is trying now that he has to extend his Tier1 visa which is expirying in April.

[cs95tdg]

Leave to remain expired : 17/06/2008
Work permit expired: 25/04/2008
Applied for Work Permit : 16th June 2008 (before the Leave to remain expired)
Applied for EC after WP approval: 01/08/2008

The reason I stated/understood when posting my previous response does appear to be incorrect, my bad. However based on the following statement in the continuous residence guidance I am still inclined to believe that continuous residence has been broken because there is a difference of more than 28 days between the former LTR expiry date (17/06/2008) and the new EC date (01/08/2008). Note however that I have not read all the immigration rules in detail, and am in no way an expert, so your friend may very well want to get legal advice to confirm or wait for others to comment.

Page 14: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

The continuous period is maintained if:
 the applicant leaves the UK with valid leave and re-enters the UK whilst that leave remains valid, provided the absence(s) do not exceed 180 days in a relevant 12 month period.
 the applicant’s leave expires for 28 days or less whilst outside the UK and the applicant returns with fresh entry clearance.
If the applicant’s leave expires whilst they are outside the UK and they apply for fresh entry clearance more than 28 days after the expiry of their previous leave, then the continuous period is deemed broken and leave is not aggregated.

[cs95tdg]

The reason he is trying now that he has to extend his Tier1 visa which is expirying in April.

One option he has, is to apply for his T1G extension by post, closer towards his T1G visa expiry date and then vary the application to ILR, if the UKBA have not reached a decision on his T1G application by the time he becomes eligible for ILR.

[ilrdep]

Thanks , this will be a good option.
Luckily he got a appointment in Solihull PEO next month, he is planning to go there and try, I will keep you posted on the outcome.
If he is not successful then , will ask him to try your suggestion.

[ilrdep]

update on this:
My friend was not successful in getting his ILR .Solihull case workers tried hard to give him visa (3 Case workers and there manager did try to help him )
One of case worker suggested him to apply with both forms (tier1 extension and also ILR application) and write a clear covering letter mentioning the date of elgibility and reason why do he think he is elgilble for ILR? and let the case worker decide which one he want to process.

Can any one suggest is this the better option rather than varying the application later?

[ilrdep]

Any advice please?

[ilrdep]

Any advice please , the other reason of send both application at a time is beacuse now a days PBS extensions are done within One month , if that is the case he can't vary the application

[cs95tdg]

Based on the dates mentioned in this thread, his ILR residence period would begin on 01/08/2008. Was this confirmed by the case workers at Solihul? If so this means, the earliest he would be eligible to apply would be 28 days before 01/08/2013.

When does his current LTR expire?

If he believes his T1G application will be decided before he qualifies for ILR, and hence will not be able to vary it, then an alternative would be the following (again there are no guarantees on how long it will take for his ILR application to be decided):

If applying for ILR directly by post, his application may initially be refused, but successful on appeal.

The following thread will also be informative - See the post made by vinny & associated references: http://www.immigrationboards.com/viewtopic.php?t=128463

[ilrdep]

Thank you his LTR expirying on 22/04/2013