continuous residency

[Jenny Taylor]

Hello. I have been living in England for the last 7 years. During the last 2 years I have been in medical school at Cambridge University. I am planning on getting Indefinite Leave to Remain when I finish. I was on a work visa but then it was switched to a student visa. I had to defer for this year due to health reasons. I know that I must be resident for 10 years at the end of my studies to get ILR. My current visa is good until 2010. Will this deferred year, during which I won't be in the UK for most of the year, set my 10 years back to the beginning or affect my application in any way? Many thanks.

[avjones]

Hello Jenny,

the rules for the 10 year legal long residence are:

Long residence in the United Kingdom

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:

(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or

(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or

(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or

(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.

(b) "lawful residence" means residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or

(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

[paulp]

You'll be interested in the "6 months" in item (a).

[avjones]

Yes, and also (v) has spent a total of more than 18 months absent from the United Kingdom during the period in question

[vinny]

See also Chapter 18 - Long residence, Long residence for the BIA's interpretation of the Rules (276A-276E).

[Jenny Taylor]

Many thanks! This is website is fantastic and extremely helpful!!!Jenny

[catlover]

I would really appreciate it if I could hear your opinion. (especially Amanda)
I applied for ILR based on long residence.
I have been in the Uk on numerous student visas since at the age of 12 since 97.
It was refused on basis that there were two short gaps (about 10 days each) between my student visa over 10 years and also my total absence exceeded 18 months. (23 months)

The solicitor I used in the initial application said though it is not straight forward case but I have a good chance as I have a lot of positive points to work on the descretion. (I basically grew up here coming to the country at ahe of 12, tones of friends here, I just graduated as a doctor from UK uni knowing that the Uk medicial qualification would not be recognised in my home country, live with my UK boyfriend, most of the absence was when I was a minor at a boarding school with no legal guarding in the UK, 2 months absence were due to my degree, the gaps were subsequently followed by grant of student visas without any difficulties so I hope 276A(b)(iii) applies here)

What the solicitor did not do was to instruct me to submit the documents to back up these favourable points! She wrote in the cover letter but no supportive documents were sent.
Plus she counted extra 2 months that should't have been counted. (When she submitted the application I had been here for nearly 11 years and so the first holiday I took was more than 10 years ago and shouldn't be included.) This makes the absence just under 21 months.

Anyway I went to see this quite famous immigration/human right solicitor after I had a refusal. He was very good and said it has a chance of being accepted at appeal but it's hard to say what percentage it would succeed as the appeal would be based on human right with focus on my private life. He said on a good day with a good judge who knows may be 70% but bad day with a bad judge less than 30%.

I would like to appeal as Im running out of options (I cant go for doctor visa or work permit as I decided to take a year out before starting to work, was hoping to get ILR and go travel before working next year, havent lived live my boyfriend for 2 years yet, IGS may be refused because my student visa has runned out plus fact that I have applied to ILR shows that I want to settle here which is not consistent with IGS being "you leave after a year if no work permit by the end of the year")
If I were to go home I would have to live and get a job in somewhere that I havet lived for nearly 11 years with my poor mother-tongue language skill separrated from my long-term boyfrind and friends.

It just that it would be really really expensive to appeal.....
Plus if it fails I would be in the worst situation with no money.
I dont mind if the appeal succeeds. But who knows!?
What would you say?

Thank you for reading all.

[avjones]

I think your solicitor is right. You do have a decent chance on appeal, so long as it's prepared carefully and presented well. But it depends on the judge.

[RAJ2007]

"276A.(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain. "

I have got a question in regard to the above point.

I am living here legally continuously for about 9 yrs. In between these years my visa was refused once,then I appeal against it and the appeal was allowed. My passport was stamped thereafter. I believe this period ( about 6months) will not be considered as a break in residence since I have appealed against the refusal and subsequently won the appeal.

Could someone please advise.

[William Blake]

I would like to appeal as I'm running out of options .

Sorry for your bad experience. My situation is very similar to yours. I have just submitted my application having a one-month gap with the supporting documents and awaitng outcome but I am quite nervous and worried and hoping these supporting documents will actually make a difference.

Have you been given the right of appeal ? You know you also have a right to apply for reconsideration.

[William Blake]

I think your solicitor is right. You do have a decent chance on appeal, so long as it's prepared carefully and presented well. But it depends on the judge.

What would be the basis for the appeal ? She couldn'tt argue that the Home office misaaplied the rule ?


I would love to hear some ideas as to the possible grounds for appeal.

[William Blake]

Catlover,

Can you give us an update as to your case ? Are you appealing ?