Another question about GAP in 10-year ILR

[flanker]

I would like to get some opinion about whether the Home Office would actually regard the following as a break in continuous residence for the purpose of ILR under the 10-year long residence, or not.

I know there are a few threads already on very similar situations. I have read most of them (like this one here: http://www.immigrationboards.com/viewto ... sc&start=0) but I am still unsure and I cannot convince myself 100% that the Home Office cannot claim that my continuity has been broken.

My situation:

I am a non-visa national who initially entered the UK in September 1997 to study at the University. On arrival in the UK, the immigration officer at the airport granted leave to enter until 31 October 1999 to complete my degree.

After I completed my degree in July 1999, I was offered entry into a postgraduate course at the University and I accepted it. I departed the UK on the 30 August 1999 for a vacation and returned on 21 September 1999. On my arrival back in the UK on 21 September 1999, I was granted a fresh leave to enter until 31 October 2002 to complete my postgraduate course.

I maintained my accommodation and bank accounts in the UK all the while during my vacation abroad, as I had every expectation to return to the UK after my vacation to start my new postgraduate course.

Is this a break or not?

My new leave to enter was granted before the last one expired, so logically I would not expect this to be a break. But some of the posts I have read seemed to suggest that the Home Office might regards this as a break because of the guideline issued to caseworkers (Immigration Directorate Instruction- Chapter 18- Long Residence) which says:


"2.1.3 Time Spent Out of the United Kingdom

Subject to that, continuity shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon his departure and return.

To benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not be resuming his ontinuous residence, but will instead be starting a new period of residence in the UK."

If the caseworker enforces strictly the letters in bold, then he/she could argue that my continuity has been broken because I am not readmitted to continue my existing leave to enter, but to start a fresh grant of leave.

But if you take the entire paragraph as a whole, the caseworker might not regard my stay to have been broken because it could possibly be aimed at ppl whose leave has actually expired while they were abroad.

Now, Immigration Rules 276A states:

"276A. For the purposes of paragraphs 276B to 276D:

(a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:…."

My understanding of Immigration Rule 276A is:

Since I have existing leave to enter upon departure and return, my continuity should not be regarded as been broken. The fact that I am not returning to (strictly speaking) continue my previous leave to enter but to start a fresh leave to enter, is immaterial according to Immigration Rule 276A, as long as I have an existing leave to enter on my return. And I think they also cannot claim that my leave to enter has elapsed on my departure because of Immigration Rule 20A:

Non-lapsing leave
20A. Leave to enter or remain in the United Kingdom will usually lapse on the holder going to a country or territory outside the common travel area. However, under article 13 of the Immigration (Leave to Enter and Remain) Order 2000 such leave will not lapse where it was given for a period exceeding six months or where it was conferred by means of an entry clearance (other than a visit visa).

The extra paragraph in the caseworker guideline appears to impose an additional requirement to Immigration Rule 276A. Can they do that?

I have sent the Home Office 4 consecutive emails asking for clarification on this matter, but received this kind of useless replies:

===============================================
REPLY1:
Thank you for your enquiry.

Please be advised that to benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not be resuming his continuous residence, but will instead be starting a new period of residence in the UK.

REPLY2:
Thank you for your enquiry.

Please be advised that you may submit an application for long residence if you have been in the UK continuously legally. If you have some breaks in between please provide a covering letter and your application will be considered by the case worker.


REPLY3:
Thank you for your enquiry.
In order to qualify for Indefinite Leave to Remain on the basis of Long Residence, you will need to demonstrate that you have been present in the United Kingdom continuously for 10 full years. You can apply for Indefinite Leave to Remain no more than twenty eight days before you complete ten years legal Long Residency in the United Kingdom.

In order to apply you will need the application form SET(O), which is available from our website at: www.bia.homeoffice.gov.uk, or by calling the Application Forms Unit on 0870 241 0645. All details and instructions are included with the form.

You must provide as much evidence of your stay in the United Kingdom as possible. Letters from past employers, your General Practitioner, P60s and your passport are all essential to support the application.

Please note, you will be required to demonstrate knowledge of life in the United Kingdom as well as language ability. Please visit our comprehensive website at www.bia.homeoffice.gov.uk for

further information.
Yours faithfully,

REPLY4:

Thank you for your enquiry.
Please refer to my previous response. For further information and guidance, you are advised to contact the Immigration Enquiry Bureau on 0870 606 7766. Alternatively, you can send a fax to 020 8196 3248 / 020 8196 3249, or write to Border & Immigration Agency, Lunar House, 40

Wellesley Road, Croydon CR9 2BY.
Yours faithfully,
===============================================

I kept pressing them to provide me with further clarification and an answer to my questions after each one of these replies, but they kept coming back with these useless answers.

The Home Office seemed happy to urge me to apply, without wanting to provide me with proper guidance as to whether my stay has been broken in this instance. I am fed-up with the Home Office for this kind of replies. I do not know where else to look for answers.

I do not want to apply for ILR unless my case is 100% bullet-proof, simply because I do not want to lose £950 to the Home Office.

I know this message is long, but I thought I will include all information so that the experts in this forum can give their opinions.

Thank you for reading.

Please let me know what you think.

[paulp]

After I completed my degree in July 1999, I was offered entry into a postgraduate course at the University and I accepted it. I departed the UK on the 30 August 1999 for a vacation and returned on 21 September 1999. On my arrival back in the UK on 21 September 1999, I was granted a fresh leave to enter until 31 October 2002 to complete my postgraduate course.

Hi Flanker, I'm afraid that the home office will consider the fresh leave on 21 Sep 99 as a break.

[flanker]

Hi Flanker, I'm afraid that the home office will consider the fresh leave on 21 Sep 99 as a break.

Hi paulp,

That's what I am afraid of.

However, Immigration Rule 276A states: (a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:…."

Since I have existing leave to enter upon departure and return, can I argue that my continuity cannot not be regarded as been broken. The fact that I am not returning to (strictly speaking) continue my previous leave to enter but to start a fresh leave to enter, is immaterial, as long as I have an existing leave to enter on my return. No?

[sunnyday]

this is so wrong.

keeping out people like that. it's like telling you that you'd be fine to go for a toilet break and when you got back in the queue they told you sorry the rule's been changed, you would have to start from the bottom of the queue. Had you given us a warning we wouldn't have taken the toilet break jesus.

Flanker, i think you would be 100% fine under the past guidance. but under the new one, it's debtable. they could say yes they could say no. Then there's a chance to appeal.
If you want, there's nothing stop you from applying. you never know.

[jes2jes]

After I completed my degree in July 1999, I was offered entry into a postgraduate course at the University and I accepted it. I departed the UK on the 30 August 1999 for a vacation and returned on 21 September 1999. On my arrival back in the UK on 21 September 1999, I was granted a fresh leave to enter until 31 October 2002 to complete my postgraduate course.

Hi Flanker, I'm afraid that the home office will consider the fresh leave on 21 Sep 99 as a break.

I totally disagree. The OP came back to continue an existing LTR as a student. The fact that this was renewed at the airport (the previous leave was still in the same category and had not expired) does not mean he had a break.

The key is whether leave expired whilst abroad and in the OP's case this did not occur. Even if he had come with a fresh leave and the absence abroad does not exceed the maximum allowed, an applicant for ILR under the LRC would qualify (see my reply from the BIA concerning this).

Flanker, you would be fine!

[flanker]

Thank you all for your replies.

The key is whether leave expired whilst abroad and in the OP's case this did not occur. Even if he had come with a fresh leave and the absence abroad does not exceed the maximum allowed, an applicant for ILR under the LRC would qualify (see my reply from the BIA concerning this).

Jes, my concern is with the guideline that they issued to the caseworkers:

"2.1.3 Time Spent Out of the United Kingdom

Subject to that, continuity shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon his departure and return.

To benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not be resuming his ontinuous residence, but will instead be starting a new period of residence in the UK."

They added that paragraph to clarify Immigration Rule 276A. If they want to be strict, then they can say that I have not returned to continue my existing leave.

This is so confusing. It was quite clear with Immigration Rule 276A, they decided to muddle things by adding that note in the guideline.

Jes, I have tried to extract similar response from the HO to the one you got, but as I said, they kept telling me useless info. What can I do?

[paulp]

I totally disagree. The OP came back to continue an existing LTR as a student. The fact that this was renewed at the airport (the previous leave was still in the same category and had not expired) does not mean he had a break.

The key is whether leave expired whilst abroad and in the OP's case this did not occur. Even if he had come with a fresh leave and the absence abroad does not exceed the maximum allowed, an applicant for ILR under the LRC would qualify (see my reply from the BIA concerning this).

Flanker, you would be fine!

Yeah, sorry, we had that discussion before, didn't we? I missed the bit where he said he had leave till the 31st of October 99. He got a fresh leave on 21st of Sep 99, so he should be ok.

[aboudi]

you should be fine, i was given leave at the airport when i first came as student in September 1997 for one year i then went back home in june 1998 came back in September 1998 3 days before my leave expired and got an extension until 2002. got ILR on long residence no probs! go for it dude.

[paulp]

you should be fine, i was given leave at the airport when i first came as student in September 1997 for one year i then went back home in june 1998 came back in September 1998 3 days before my leave expired and got an extension until 2002. got ILR on long residence no probs! go for it dude.

You're very lucky aboudi. Had you come back 3 days later, it would have been a very different story.

[flanker]

Thank you for all the replies. It's looking more positive now.

I know I keep throwing doubts into my own application, but there are 2 facts worth examining:

1) I was not returning to continue an existing university course. I came back to start a new post-grad course.

2) Hence, the Home Office could argue that I did not return to continue my existing leave to enter, I returned to start a new leave to enter. And continuity is broken as per HO Guideline:

"2.1.3 Time Spent Out of the United Kingdom

Subject to that, continuity shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon his departure and return.

To benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not be resuming his ontinuous residence, but will instead be starting a new period of residence in the UK."


Can anybody see why Home Office cannot use this against me?

[paulp]

Flanker, we've discussed all this on the board before, but the simple answer from the home office themselves was that they are using a very simple rule. If your visa/LTR did not expire before you return, you're ok.

Even if they do refuse, you can use an immigration consultant to make the appeal.

[jes2jes]

Thank you for all the replies. It's looking more positive now.

I know I keep throwing doubts into my own application, but there are 2 facts worth examining:

1) I was not returning to continue an existing university course. I came back to start a new post-grad course.

2) Hence, the Home Office could argue that I did not return to continue my existing leave to enter, I returned to start a new leave to enter. And continuity is broken as per HO Guideline:

"2.1.3 Time Spent Out of the United Kingdom

Subject to that, continuity shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant has existing limited leave to enter or remain upon his departure and return.

To benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not be resuming his ontinuous residence, but will instead be starting a new period of residence in the UK."


Can anybody see why Home Office cannot use this against me?

I don't know what else you want said. This is my last post on this and I have told you this in several PM's. You are good to go and someone has confirmed this so what more to you want to hear?
The fact that you were an undergrad and switched to a postgrad course does not negate your leave or change the status of your leave - YOU WERE STILL A STUDENT and nothing. Stop worrying unnecesarily.

BIA could not give you any answer because you do not need one since everything you need is in the guidance they sent you.

Had your leave expired abroad, it would have been a different case. In my case, my leave did not expire but obtained a new leave and they had confirmed it was fine. I would have worried if you had a visitor's visa and went abroad (single entry) and came back with a fresh leave but not so in your case.

Please, I think I have said enough on this and no more PMs since I have nothing new to add.

By the way why did you not apply for ILR in August or September 07 according to this?:

I am a non-visa national who initially entered the UK in September 1997 to study at the University

Thanks

[flanker]

hi jes,

Thank you for your opinions - I really appreciate them.

And the same goes to everybody else who contributed.

By the way why did you not apply for ILR in August or September 07 according to this?:

I was tied down with work/travel, and did not take the life in the Uk test until end november. I had a PEO appointment booked end of Dec, but I decided I should be 100% sure by checking with the HO before risking £950, so I cancelled.

[jes2jes]

hi jes,

Thank you for your opinions - I really appreciate them.

And the same goes to everybody else who contributed.

By the way why did you not apply for ILR in August or September 07 according to this?:

I was tied down with work/travel, and did not take the life in the Uk test until end november. I had a PEO appointment booked end of Dec, but I decided I should be 100% sure by checking with the HO before risking £950, so I cancelled.

Okay then. You will be fine. If not, I will refund your fees and also if you get the ILR then, you would have to pay me the equivalent of the fees for being spot on