Break in continuous residence

[Txnny]

I am currently on a tier 4 visa which will end on 8th of October 2018. I want to apply to extend my visa to finish the course, however the term that I am retaking starts in January 4th 2019. This might mean that I will have to apply from home country. Would this break the continuous residency terms if I would be out of the country for less than 180 days but apply from home country?

[equitydealer]

If you apply from your home country, which you’ll need to do, it breaks continuous residency.

[vinny]

Not necessarily.

276A.

For the purposes of paragraphs 276B to 276D and 276ADE(1).
(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:
...

This is reflected in their guidance.

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.

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

[Txnny]

Does this mean that it won't break? Its very confusing as I have found mixed things about this.

If my course starts on the 4th of January, would I be able to put an application within country on the 4th of October -technically 3 months from the start date, and stay in the country until the decision is made? Would that break the continuous residency?

[vinny]

In-country applications are also subject to:

(l) Unless applying for leave to remain as a Tier 4 (General) Student on the doctorate extension scheme, the applicant must be applying for leave to remain for the purpose of studies which commence within 28 days of the expiry of the applicant’s current or most recent leave to enter or remain or, where the application is made in circumstances to which paragraph 39E(2) applies, within 28 days of the relevant event specified under paragraph 39E(2)(b).

[Txnny]

Thank you for your reply, but I'm afraid this is causing more confusion... Does this mean I have to leave and apply from home country? And if that's so, would that break my continuous residency? I am basically trying to get a visa to finish my course without having to break my residency...

[CR001]

If you leave with a valid visa, apply from home country and then return to the UK within 180 days with another visa, it DOES NOT break continuity of Residence as vinny already posted on Tuesday.

[Txnny]

I've had a look over the guidance, and would I have to apply for the new visa before my last visa ends? My current visa is valid until the 8th of October 2018. My new course will start Jan 7th 2019. I can't make an application until the exact date my previous visa ends (3 months before course date start). Would I have to go back to my country before 8/10 and make an application on the 8/10 to keep my continuous residency?

On or after 24 November 2016
The continuous period is maintained if the applicant either:
• leaves the UK with valid leave, applies for entry clearance before their leave
expires, is granted and re-enters the UK using that entry clearance
• applies for new entry clearance within 14 days of their leave expiry date, one of
the circumstances below applies, their application is granted and they re-enter
the UK using that entry clearance.
The circumstances are that:
• there was a good reason beyond the control of the applicant or their
representative why the application could not be made in time
• the application was made following the refusal of an in-time application and
within 14 days of:
o the refusal of the previous in-time application
o the expiry of any leave extended by section 3C of the Immigration Act 1971
(please note that 3C leave lapses when an applicant leaves the UK)
o the expiry of the time-limit for making an in-time application for administrative
application for administrative review or appeal (where applicable)
o any administrative review or appeal being concluded, withdrawn, abandoned
or lapsing

[CR001]

Please post the link of the document you are quoting.

[Txnny]

https://assets.publishing.service.gov.u ... .0-EXT.pdf

[CR001]

Are you looking at maintaining continuous residence for ILR based on 10 years long residence??

If yes, the link you have provided is NOT relevant to long residence applications. It is ONLY relevant to certain category visas applying for ILR based on 5 years residence, as page 4 of the document clearly states.

[Txnny]

Yes, I am looking at maintaining continuous residence for 10 years. My bad. What do you think is the best option for me with this situation then? Thank you so much

[CR001]

Not necessarily.

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.

Vinny already provided the link to the correct document and an extract. Click on 'Long Residence' that is underlined, it takes you to the correct document.

You have nothing to worry about as long as you leave the UK with a valid visa and apply abroad and return within 180 days.

[Txnny]

Thank you for your help. One last quick question. When I apply from outside UK from October, provided they give me a visa from December (1 month before course start date). The period of October -November gap between visas would not count towards the 10 years period. Am I correct?

[CR001]

If you return to the UK within 180 days your residence for long residence ILR is NOT broken and you will still qualify for ILR LR.

[Txnny]

Would I have to apply for my fresh clearance before my leave expires?

[CR001]

Would I have to apply for my fresh clearance before my leave expires?

NO!!

Not necessarily.

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.

Vinny already provided the link to the correct document and an extract. Click on 'Long Residence' that is underlined, it takes you to the correct document.

You have nothing to worry about as long as you leave the UK with a valid visa and apply abroad and return within 180 days.