Inquiry of the application of permanent residence (10 years)

[chswallow]

I have a question regarding the application of permanent residence. I got a Tier 4 visa which is expired on 12/01/2011, and I returned back to China before the expiry date. Since then I applied for another Tier 4 visa around 23 Feb 2011, and the new visa’s start date is from 01/03/2011. According to long residence guide provided by the home office, failing to apply for entry clearance within 28 days of the previous leave expiring is considered to break the continuous residence.

I was wondering in my case, does the continuous residence has been broken?

[CR001]

No it does not.

In your case if you left the UK before your visa expired in 2011 and returned to the UK within 180 days on a new visa, residency is maintained. The guidance states this clearly.

[chswallow]

Thank you for your advice. But after I read the policy from the home office, it says that 'if the applicant's leave expires whilst they are outside the UK and they apply for new entry clearance more than 28 days after their previous leave expires, the continuous period is broken and leave is not aggregated'. I think in my case, the gap between 12 Jan 2011 and 23 Feb 2011 is more than 28 days, then my continuous period is broken.

[CR001]

https://assets.publishing.service.gov.u ... -v15_0.pdf

You are wrong. It does not apply to your circumstances you describe.

[chswallow]

Hi can you please read page 10? it says:

Continuous residence is not considered broken if the applicant:
• is absent from the UK for 6 months or less at any one time
• had existing leave to enter or remain when they left and when they returned –
this can include leave gained at port when returning to the UK as a non-visa
national
• departed the UK before 24 November 2016, but after the expiry of their leave to
remain, and applied for fresh entry clearance within 28 days of that previous
leave expiring, and returned to the UK within 6 months

So it means I need to apply for a new entry visa within 28 days of that previous leave expiring, then I can be regarded as not broken.

[chswallow]

Can you please also read the page 19?

Example 1
A person has leave to enter as a student, valid until 31 July 2016. The person
submits an out of time application for leave to remain on 15 September 2016. The
person is granted leave as a student on 15 October 2016.
Question Is there a break in their lawful residence under the 10 years long
residence rules?
Answer Yes, the person submitted an out of time application. The person has a
break in their continuous lawful residence, from the date their leave
expired on 31 July 2016, until the date they were granted leave as a
student on 15 October 2016.

So after my first visa expired on 12 Jan 2011, I applied for a new visa after 28 days, which was on 23 Feb 2011. It means there was a break

[CR001]

You said you left the UK BEFORE your visa expired, so why are you looking at examples specifically about people made out of time application or who left the UK after visa expiry.

This below is the relevant bit based on what you have stated your circumstances were.

Continuous residence is not considered broken if the applicant:
• is absent from the UK for 6 months or less at any one time
• had existing leave to enter or remain when they left and when they returned –
this can include leave gained at port when returning to the UK as a non-visa
national

[chswallow]

May I ask one more question regarding to the 180 days. Are these 180 days are calculated for single absence from the UK or for the total absence 'within 12 months' from the UK? Thank you.

[zimba]

Both.
1) No continuous absences of more than 180 days ANYWHERE in the 5 year period, AND
2) No total absences of more than 180 days in each residence year

[CR001]

Both.
1) No continuous absences of more than 180 days ANYWHERE in the 5 year period, AND
2) No total absences of more than 180 days in each residence year

OP is applying for long residence ILR so only single absence of 180 days is relevant not the 12 month etc.

[zimba]

I stand corrected.
The advice given only applies to PBS route