Travelling while ILR is in Process

[supremium]

dear members and mcnarth especially,

i have applied for my ILR Tier 1 Entrepreneur last month and I am expecting the process to take up to six months. An important obligation has arisen and thus has the need to exit the country. I do not want to take any risk in my application being withdrawn thus I welcome all of your advice.

I can apply for a second US passport in order to leave and meet my obligations. The guidance (copied below) clearly states that if I request my passport back to travel my application will be withdrawn, however if I have to travel on emergency on another passport my application will not be withdrawn.

Furthremore, point 3 relates to me because I can enter under a different visa class (visitor) and furthermore, point four also applies as my current leave is still valid at the time of re-entering. Does this mean I can travel? There is something that states (if your leave is not cancelled right there and then at the border), but im presuming if it is, I can again enter as a visitor and my application would stand.

Why do they make this so tricky?! Please see 4/17 guidance pasted below: (with my notes).

If a person requests the return of their passport to travel outside the common travel area (CTA) before a decision is made on their application for leave to remain, you must treat the application as withdrawn on the date that request is received by the Home Office unless an exception applies. This is set out in paragraph 34J of the Immigration Rules. - not applicable to me as I wont request my passport back

1. You must not treat an application as withdrawn if the person:
does not request the return of their passport and instead travels outside the CTA on another passport, an emergency travel document or illegally - this is what I will be doing, on another passport - see points three and four below

2. requests the return of their passport for purposes other than travel (or for travel within the CTA) – for example to open a bank account, take the Life in the UK Test or apply for an identity document not related to travelling outside the CTA - not applicable to me

If a person, with an outstanding application, travels outside the CTA, the application does not give them any right to re-enter the UK to receive a decision on their application. They are liable to be refused entry, unless:

3 they are allowed to re-enter the UK with a different type of leave - this is applicable to me as I can always enter as a visitor, does this act cause the withdrawal of the application?

4. their existing leave has not yet expired and is not cancelled at the border - this would also be applicable to me as my leave would still be valid, question regarding thid point - how and why would it be cancelled at the border? but if it is, I could always revert to my ability to enter based on point three (being allowed to re-enter on a different type of leave)

[Obie]

Travelling outside the common travel area will invalidate your leave.

[zimba]

You are covered by Section 3C of immigration Act at the moment. If you leave the UK, your will lapse and will be invalidate your leave.

Section 3C of immigration Act 1971says:

Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

[Bbmac5]

Hi, i just joined the forum to ask about a similar question, and have been reading a lot about this subject. If you still have leave, in other words if your current leave to remain is still valid and you have not transitioned onto Section 3C leave - you can leave on the second passport and re-enter. It is really confusing... if you leave the UK whilst on Section 3C leave, you have your application withdrawn. If you leave before your leave expires, transition onto section 3c leave and then try to come back in, well that is where it gets confusing, but you wouldn't be able to leave again anyway after that.
It is very difficult for people that need to travel for work and I am trying to seek some legal advice about it. But if you still have valid leave there should not be an issue.

[supremium]

Dear Mr. Zimba et al,
I believe you are mistaken in mentioning I am on Section 3C leave. As per the immigration act 1971:

[F13C Continuation of leave pending variation decision

(1)This section applies if—
(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b)the application for variation is made before the leave expires, and
(c)the leave expires without the application for variation having been decided.

Note the boldfaced word AND - this means that one transitions to section 3C if he has made an application for variation, before the leave expires AND the leave expires without the application for variation having been decided.

Thus as my leave is valid well into next year, I would not transition to section 3C until then. I re-iterate my question, is it fully safe to travel while my current leave is still valid? A thought that comes to mind is entering without my BRP.

1) Can I enter as a Tier 1 without the actual BRP?
2) Does entering as a Visitor invalidate the previous Tier 1 Leave?

BBMAC - It seems if you have transition on to section 3c is an interesting one and maybe for the courts to decide. Because you haven't actual LEFT the UK while on 3c as the law states, but you are already outside. Better play it safe on that one. Please let me know if you have received any info on the above.

Best Regards,