SET LR - 10 years residence broken or not?

[keitaro]

Dear everyone,

I'm submitting my SET(LR) application soon and I could really use some help please.

I came to the UK in September 2008 so my 10 years is coming up soon. I'm submitting my application at Croydon PSC next week. I have an autistic son so staying in the UK is crucial for him to get the support he need because my country doesn't even recognise Autism as a condition.

I have 11 absences from the UK, all of them was 60 days or less and no more than 180 in any 12 months period. 10 absences was for holiday and 1 absence was to go back to my country to apply for a new visa, which I will explain more in details below.

My Visa history is as follow:

Sep 2008 - October 2011 : Student Visa

October 2011 - October 2014 Tier 4 Visa

I was expelled from my college in June 2012 but I did not hear anything from Home Office. I got married in December 2012 and submitted an application to switch to Tier 4 Dependant.

This application was refused in March 2013 and the Home Office also curtailed my visa to 3rd June 2013.

My solicitor submitted a Pre-Action Protocol letter for Judicial Review along with my passport and my wife's passport to Home Office and we got no response.

In April and May 2013, I decided to go back to my country to apply for Dependant visa from there, my solicitor sent 3 requests asking for these documents back but we got no response.

On 24 May 2013, I came to see my local MP to ask for help in getting the document back.

On 20 June 2013, I sent Home Office a Document Return Form by email.

The MP eventually got the Home Office to take action. They arranged for me to leave the UK as Voluntary Departure on 3rd August 2013. However they failed to deliver my passport to the airport on the day so I had to use my Laissez Passer to go back to my country.

After I came back to my country, the Home Office contacted me by email to confirm that they would retain my passport in the UK, and that I can pick it up when I come back to the UK. I requested them to confirm that I was not an overstayer and they confirmed that I was not an overstayer in an email.

I got a new passport, submitted an application for Dependant visa on 10th September 2013 and it was granted on 5th October 2013. I came back to the UK on 15th October 2013.

October 2013 - January 2015 - Tier 4 Dependant Visa
Januaty 2015 - May 2019 - Tier 4 Dependant Visa

However I was advised by an Immigration Advice centre that the refusal, curtailment, and JR stuff I did in 2013 basically mean that there's a break in 10 years continuous residence, and they advised me not to submit the application.

Can someone advise if this is indeed the case and if I choose to submit the application anyway, would I stand any chance of getting ILR? I have both my original passport and the new one but I only have a copy of the Leissez Passer. I planning on writing a cover letter to explain that I left the UK in 2013 with the Laissez Passer and that I received confirmation by email that I was not an overstayer. Would that help? I am thinking of mention my son's condition and how difficult it would be for him to leave the UK as well.

My apologise for a lot of text. I've tried to provide a best overview of my situation so thank you for reading and thank you again for any advice!

Kind regards.

[zimba]

Your continuous period is broken as your visa expired in June 2013 and you left in August 2013. As you did not apply within 28 days of your visa expiry to come back to the UK, your continuous period is broken. Pursuing JR is outside the scope of the immigration rules and will not change the fact that from June 2013 to August 2013 when you left, you overstayed. HO emails are not relevant as your status will be determined under the rules.

[keitaro]

Dear Zimba, thank you so much for your advice. I understand that under immigration rule, I am considered an overstayer from 3rd June 2013. However, if this is the care, it means I overstayed more than 60 days and as such my application I made in August should have been refused? Can you please advise having my application approved in 2013 means anything or was I simply lucky at the time?

I went to see an immigration lawyer today and was told that my case would be more than likely refused if I submit the application in person next week. I was advised to cancel the Premium appointment and use their service to prepare a proper application to be sent by post with cover letter asking Home Office to use discretion in my case, as I did attempt to request for my pass back to leave the country before my leave expire but Home Office did not return it. I was also told that my son's Autism would count as a merit to be considered as well.

Would you say this is the right course of action? Would I stand any chances of getting the application approved, with or without the professional service from the immigration lawyer?

Finally, in the worst case scenario, if my application is refused, will I get right of appeal? My current leave to remain will be valid until May 2019.

Thank you again for your valuable advice, I am truly grateful!

[vinny]

However they failed to deliver my passport to the airport on the day so I had to use my Laissez Passer to go back to my country.

Unfortunately, the UKVI appears to be incompetent at returning an applicant's passport at the airport.

Why didn't you use your Laissez Passer to return to your country before the date of curtailment?

[keitaro]

Hi Vinny, thank you for your reply.

I requested a Laissez Passer from my country’s embassy but they took a long time to issue it. In fact I picked up the Laissez Passer the day before the flight. I did not think I would need it but because it was ready I went to pick it up anyway. It was a coincidence but it got me on the flight instead of cancelling and waiting for Home Office to actually deliver the passport.

If I had the Laissez Passer before my leave expire, I would have left using it but unfortunately that was not the case.

[vinny]

Perhaps you could argue that they contributed to you becoming an overstayer by not returning your requested documents (i.e. passport) in a timely manner?

[keitaro]

Hi vinny, that's one of the points I would try to include in my cover letter. Do you think I should proceed with the Premium Appointment or cancel it and apply by post?

Also would a cover letter prepared by a lawyer help or can I write one myself? The Immigration Lawyer I saw today insist that I would fail if I were to submit the application myself, and that I definitely need to have my application prepared and submitted by a professional lawyer. Is there any truth in this statement?

Thank you very much for your advice!