Have I Broken Continuous Residency?

[ThisisA]

Thank you very much for your response abc499. That puts a lot of my concerns to rest. One more question to all the fellow members, did anybody have to submit all company & business details for a SET(LR) application after having a Tier 1 Entrepreneurship visa?

[ThisisA]

Hi guys,

Could anybody shed any light on this?

Cheers

[ThisisA]

Hello guys,

I am due to submit my application by the end of this week and was hoping to get a response from one of the experienced members. I will summarise my situation again below for ease of understanding and to keep it concise. Keeping my fingers crossed for a response.

My immigration history so far -

• Entered the UK - 26/01/2007 - On student visa valid till 31/05/2008.
• Student visa extension - 11/06/2008 to 31/03/2009.
• Student visa extension with BRP - 27/05/2009 to 31/01/2010.
• Left the UK - 31/01/2010 - On the day of the visa expiry due to the requirement of another entry clearance according to new rules at that point.
• Applied for Entry Clearance from the home country but took a bit longer than expected due to wrongful rejection on the basis of overstaying. Subsequently, the decision was overturned and Entry Clearance was granted.
• Entered the UK - 05/05/2010, tier 4 student entry clearance valid till 24/09/2010.
• Tier 4 student visa extended - 25/08/2010 to 11/01/2011.
• Switched to PSW - I don’t have the dates but applied within time.
• Tier 1 Entrepreneurship 50K route granted - 18/01/2014
• Left the UK - 12/04/2014 - for a short holiday
• Returned - 21/04/2014
• Current Visa valid until - 18/01/2017 - Tier 1 Entrepreneurship 50K route

** In this whole period, I have never overstayed. **

Here is a little more information about what happened in my home country & the reason for rejection of my Entry Clearance application -

I left the UK on the 31/01/2010 - the day of the visa expiry, at this point I had the visa letter provided by the university.
The first appointment offered by VFS was on the 22/02/2010, which was the same day when UKBA enforced the requirement of CAS number instead of the visa letter. VFS did not accept the application on that day because I didn't have the CAS number with me. Then I had to get in touch with the university to obtain the CAS number and again had to wait for the next appointment from VFS which was eventually turned out to be on the 11/03/2010 when finally the application got accepted.

British High Commission in my home country rejected my Entry Clearance application on the basis of overstaying because prior to that the BRPs got introduced and therefore there wasn’t any stamp on the passport for my extension after 31/03/2009. VFS offices in my home country did not take any plastic cards back in the days. I provided evidence and subsequently this decision was overturned.

I have had a look at the long residence guidance and the 2nd example on the page 14, I have quoted it below, fits my situation perfectly -

""
Example 2

An applicant:

enters the UK on 1 September 2004 with entry clearance as a student which is valid until 31 October 2005

leaves the UK on 25 October 2005, before their previous leave expired

re-enters the UK with valid entry clearance as a student on 5 January 2006

The person had valid leave on the date of their departure and on the date of their return to the UK, and the time spent outside the UK was less than 6 months. Continuous residence has been maintained, even though the person entered the UK with a fresh grant of leave. ""

- I had valid student visa on the day I left, and I returned within 6 months with fresh Entry Clearance leave.

I discussed my case with the immigration solicitor at the Citizen's Advice Bureau and she talked about the "within 28 days" rule for fresh application after the expiration of the visa, also has been mentioned on this thread before, and informed that I may have broken the continuation rules.

However, having read the guidelines multiple times, I believe this is only applicable when an applicant has overstayed. Quoting some more details from the guidance below to support my understanding -

(Page 10 on the guidance - Breaks in continuous residence)

Breaks in continuous residence

Events that break continuous residence
Continuous residence is considered to be broken if the applicant has:
• been absent from the UK for a period of more than 6 months at any one time
• spent a total of 18 months outside the UK throughout the whole 10 year period
• left the UK before 31 October 2016 with no valid leave to remain on their
departure from the UK, and failed to apply for entry clearance within 28 days of their previous leave expiring (even if they returned to the UK within 6 months)

- In my case when I left the UK, I did have valid leave on that particular day, so not an overstayer.

Time spent outside the UK
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 6 October 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

- Again in this situation I was outside the UK back in 2010 but I left the UK while having valid visa,

(Page 16 on the guidance - Time spent outside the UK)

A person who is outside the UK will not be in breach of the Immigration Rules.

You can overlook a period of unlawful residence if the applicant leaves the UK after their valid leave has expired but before 24 November 2016, and:

• applies for entry clearance within 28 days of their original leave expiring
  
  returns to the UK with valid leave within 6 months of their original departure

Even in this guideline the emphasis is on leaving the uk after the valid leave has expired.

I would really appreciate if you look into this and confirm if my interpretation is correct.

Also, since I am on Tier 1 entrepreneurship visa at present, do I need to provide any business related documentation with the SET(LR) application?

Thanks a lot in advance for your help.

[vinny]

There may also be some ambiguity with the "valid until" or "expiry" date.

[ThisisA]

There may also be some ambiguity with the "valid until" or "expiry" date.

Thanks a lot Vinny. I couldn't find anything specific on the home office website about this following the link you provided in that previous thread from 2013. I hope it will be considered in my favour as the benefit of the doubt.

However, would you be able to comment on the points I mentioned above by any chance?

[vinny]

If you left the UK prior to expiry of leave, then I believe there is no requirement for you to apply for entry clearance within 28 days.

Time spent outside the UK
A person who is outside the UK will not be in breach of the Immigration Rules.

You can overlook a period of unlawful residence if the applicant leaves the UK after their valid leave has expired but before 24 November 2016, and:
• applies for entry clearance within 28 days of their original leave expiring
• returns to the UK with valid leave within 6 months of their original departure

[ThisisA]

If you left the UK prior to expiry of leave, then I believe there is no requirement for you to apply for entry clearance within 28 days.

Time spent outside the UK
A person who is outside the UK will not be in breach of the Immigration Rules.

You can overlook a period of unlawful residence if the applicant leaves the UK after their valid leave has expired but before 24 November 2016, and:
• applies for entry clearance within 28 days of their original leave expiring
• returns to the UK with valid leave within 6 months of their original departure

Thanks a lot for confirming, also any idea about the submission of relevant business documents, if at all required?

[Ezmba]

Hi ThisisA,

I have been reading through your post and it cached my interest because we are in similar situation.

Just to inform you that my wife ILR (10 Years route) was refused on Oct 2015 and she appealed. refusal reason was that she over stayed with 16 days when she went for internship with UN and it is part of the study towards MSc . Again, in 2013 Dec, we left the UK on the day our leave to remain is to expire, in this case we didn't overstay though.

We applied for Tier 2 general from home country on Feb 22nd 2014 and return to UK by March 2014. We didn't apply within 28 days.

Then the appeal took place on 2016 Dec and at the tribunal, the home office case presenter came up with another case of break in long residence outside what the refusal reason stated in Oct 2013. At this juncture he said the breaks are staying more than 6 months in USA and not applying within 28 days after we left the UK on Dec 2013.

Our lawyer countered it that the 28 days rule is applicable to only an overstayer and in his clients case they did not over stay their leave in UK, that they left before their leave expired.

We received the appeal decision and the appeal was allowed. The judge said that the 6 months overstayed in UN during the internship was part of the study and she had leave both when she left to UN and when she returned

On the 28 days, the lawyer said that there is no mention of that as regard to someone that left when their leave to remain is valid like in your case. The judge stated the rule and it talks about only those that overstayed their leave.

We are waiting to see if HO will go for UT but for now our lawyer said they will not go because the rule is clear. I don't know why HO can't state the rule clear for people in this situation like us. but to my understanding I will share the opinion that the 28 days rule is for an overstayer.

I will be due for my ILR 10 years by Dec 2017 and will be applying but I don't know if the 28 days issue will resurface again during my application. For now my wife's appeal is successful. I will be interested to know how your application turns out but I wish you good luck. I believe you will be fine.

Many thanks.
Ezmba

[ThisisA]

Hi ThisisA,

I have been reading through your post and it cached my interest because we are in similar situation.

Just to inform you that my wife ILR (10 Years route) was refused on Oct 2015 and she appealed. refusal reason was that she over stayed with 16 days when she went for internship with UN and it is part of the study towards MSc . Again, in 2013 Dec, we left the UK on the day our leave to remain is to expire, in this case we didn't overstay though.

We applied for Tier 2 general from home country on Feb 22nd 2014 and return to UK by March 2014. We didn't apply within 28 days.

Then the appeal took place on 2016 Dec and at the tribunal, the home office case presenter came up with another case of break in long residence outside what the refusal reason stated in Oct 2013. At this juncture he said the breaks are staying more than 6 months in USA and not applying within 28 days after we left the UK on Dec 2013.

Our lawyer countered it that the 28 days rule is applicable to only an overstayer and in his clients case they did not over stay their leave in UK, that they left before their leave expired.

We received the appeal decision and the appeal was allowed. The judge said that the 6 months overstayed in UN during the internship was part of the study and she had leave both when she left to UN and when she returned

On the 28 days, the lawyer said that there is no mention of that as regard to someone that left when their leave to remain is valid like in your case. The judge stated the rule and it talks about only those that overstayed their leave.

We are waiting to see if HO will go for UT but for now our lawyer said they will not go because the rule is clear. I don't know why HO can't state the rule clear for people in this situation like us. but to my understanding I will share the opinion that the 28 days rule is for an overstayer.

I will be due for my ILR 10 years by Dec 2017 and will be applying but I don't know if the 28 days issue will resurface again during my application. For now my wife's appeal is successful. I will be interested to know how your application turns out but I wish you good luck. I believe you will be fine.

Many thanks.
Ezmba

T'hank you very much for the reassurance. I am feeling more confident about the application now. I hope someone responds with my business documents question.

[vinny]

Our lawyer countered it that the 28 days rule is applicable to only an overstayer and in his clients case they did not over stay their leave in UK, that they left before their leave expired.

We received the appeal decision and the appeal was allowed. The judge said that the 6 months overstayed in UN during the internship was part of the study and she had leave both when she left to UN and when she returned

On the 28 days, the lawyer said that there is no mention of that as regard to someone that left when their leave to remain is valid like in your case. The judge stated the rule and it talks about only those that overstayed their leave.

As confirmed in Example 2, etc.

[ThisisA]

Thank you very much Vinny.

A quick question, I was granted the T1 visa on the basis of a contract with an agency. I continued to work via that agency until September 2015 because I became aware that Home Office does not allow working via agencies anymore. At this point I stopped working via agencies and started working on own project by hiring 2 people and building a platform for content delivery. Since then I have not worked on any other contract. Do you think this could create an issue with my application?

[ramaishu]

Hi ThisisA

I am under the same situation as you had. Can you please advise the outcome of your application.

[CR001]

Hi ThisisA

I am under the same situation as you had. Can you please advise the outcome of your application.

Kindly start your own topic with your circumstances and questions rather than digging up 3 year threads to tag onto.