10 year ilr confusion

[vinny]

So can anyone tell me, how would one go about initiating a judicial review against the Home Office ? If my application failed and I wanted to challenge the decision what could I do?


Also I wonder. The IDI's are BIA's interpretation but what does the actual law say about continuous residency ?

See also Chapter 27 - Judicial review.

See also Long residence 276A-276E Rules and AIT's OS (10 years’ lawful residence) Hong Kong [2006] UKAIT 00031, prior to BIA's current policy.

[jes2jes]

Brilliant piece of judgement. I am quoting directly from the Judge's statement:

[quote]20. Absences from the United Kingdom are treated differently under the two systems. Under the Rule, a period of absence associated with no taint of illegality is not considered to break the continuity of residence. A period of absence following a period of overstaying does not have that advantage, so it no doubt is to be regarded as breaking the period of continuity. The effect of that is that, under the Rule, the absence resets the clock, enabling a continuous period of ten years’ lawful residence to be restarted. The right under the Rule to indefinite leave to remain after ten years’ lawful residence arises only when all the residence during the ten years has been lawful.21.
Under the concession, in contrast, there is no absolute requirement that every day of residence during the ten years be a day of lawful residence. The comments in the concession about absences impose no such requirement, and the statement of policy under “Lawful Residenceâ€

[William Blake]

Please keep a copy of this determination and include if possible. But make sure that any breaks and breaches are taking care of before applying.

Good news indeed!

How do you take care of them ? You mean explain them away? The judgement you cite is that something new? As I understand if you had ten years legality on any visa you ought to be fine - it's the overstay (illegality) and continuousness (gaps) that are issues. I see how your posting here follows on with the theme of the thread but is it of any use for people like me who have a one-month gap ?

[William Blake]

Valuable piece of information vinny. Thanks.

[William Blake]

Yeah so what does that mean though ? Is it not the case that BIA have now removed the concession.

The internal guidance says:

Until April 2003 there was no provision in the Immigration Rules for a person to be
granted indefinite leave to remain on the grounds of long residence. The long residence
concession allowed for a discretionary grant of settlement after 10 years continuous
lawful residence or 14 years continuous residence of any legality, provided there were no
serious countervailing factors.
Under the provisions of the Nationality, Immigration and Asylum Act (NIA) 2002,
which came into effect in April 2003, there is no right of appeal against refusal for those
seeking leave to enter or remain under concessionary arrangements. As a consequence
the long residence concession was brought within the scope of the Immigration Rules
from 1 April 2003.


So help me here what does it all mean. According to that 2006 judegement then a concession still exists. Is this slightly different to the discretionary power or is it the same.

So if there is a gap or short period of illegality a person should not just simply be turned down but be considered under the concession i.e. their application should be seriously contemplated under the concessionary arrangement (discretionary power). Is that correct ? And under this concessio short periods of illegality and short gaps ought to be overlooked ?

I have an application in right now with a one-month gap and we (my solicitor and I) have argued for discretion to be shown with regard to this period and we have supplied supporting documents but we did not draw attention to this case but to other aspects of law. But I know that others have been refused solely on the gap. In light of this judgement can I do anything now? Or just wait and if refused flag these points in a reconsideration ?

[William Blake]

Under the Rule, a period of absence associated with no taint of illegality is not considered to break the continuity of residence.

That can't be right. BIA clearly says that if your visa expired abroad and you re-enter on a different visa then continuity of residence is broken.

[William Blake]

2.1.3 Time Spent Out of the United Kingdom
Continuity of residence should be considered to have been broken if the applicant has
spent a total of more than 18 months absent from the United Kingdom during the
period in question.
Subject to that, continuity 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 has existing limited leave to enter or remain
upon his departure and return.

To benefit from this, an applicant must have current leave covering the whole of the
period spent out of the country and will have been readmitted, on return from his
absence, to continue that period of existing leave. A person who leaves the UK when
one period of leave expires, and comes back with a fresh grant of leave, will not be
resuming his continuous residence, but will instead be starting a new period of
residence in the UK.

So what do we make of this then?

[vinny]

Apparently, after the AIT's case, the BIA have removed the Long Residence concession from it's website and introduced a more restrictive interpretation of the Rules.

[William Blake]

Sucks. So back to square one then. If there is a gap there is a big problem. So applicants who are refused on the gap - what basis is there for an appeal. That the new interpretation undermines the original aim of the concession ?

[raniwza]

I have been refused from ilr under 10 years category definitely now-HO won't budge.

I am not sure if I can appeal further I have been refused from right of appeal from the beginning because the excuse that HO has is that I still had my current leave to remain at the time. I have never known that you can be refused from tight to appeal just because you have an active visa whilst applying for ilr?

Should I re-apply ilr again when my current student visa expired in march 2008?

The only reason that i have to let my visa expired whilst i was in malaysia is because the british embassy was closed from visa extension applications (due to aftermath sept 11) and i cannot get the visa renewed/extended (i was still technically still a student i had one year to finish my degree at the time - it's just that the HO has given me student visa one year short) so i had to go back to malaysia to get my letter as prove of funding and re-submit student visa extension again in 2002. I was just 16 days late. I had my visa extended/stamped at the airport?

What should i do?

[vinny]

I have been refused from ilr under 10 years category definitely now-HO won't budge.

I am not sure if I can appeal further I have been refused from right of appeal from the beginning because the excuse that HO has is that I still had my current leave to remain at the time. I have never known that you can be refused from tight to appeal just because you have an active visa whilst applying for ilr?

3.4 Refusal to vary a person's leave to enter or remain in the UK if the result of the refusal is that the person has no leave to enter or remain – s82(2)(d)

The right of appeal is triggered by the refusal to vary existing leave to enter or remain if, following the decision, the applicant has no leave. This means that two criteria have to be met:

i. The application must be made while the applicant has leave to enter or remain (in-time)

ii. By the time the applicant is notified of the decision to refuse him further leave, his leave has expired.

Therefore, there is no right of appeal under section 82 against the refusal of an in-time application if the applicant still has leave when the refusal decision is notified.

[N.B. The one exception to this rule is that there may be a right of appeal on asylum grounds only under section 83 if an asylum claim has been refused (see the API on rights of appeal for further instructions on section 83)].

Also, there is no right of appeal against refusal if the applicant does not have leave to enter or remain at the date of application. This is because it is not possible to vary leave that a person no longer has. An out of time application will never attract a right of appeal under section 82(2)(d).

An appeal under this section may normally be brought in the UK, subject to certain exceptions and limitations.

[William Blake]

Thats good info vinny but what about judicial review is that the same as an appeal? In the abscence of appeal right can there be a judicial review?

The document you referred me to seems to suggest there is.

The Purpose of Judicial Review
While the Immigration and Asylum Act 1999 provides for appeals against most decisions in immigration cases, the exercise of their powers by public authorities, which includes a Minister, an official or the appellate authorities, is always open to challenge in the Courts by way of judicial review. The Courts will not assess the merits of the decision but rule upon its lawfulness. The Court cannot replace an unlawful decision with a lawful one. There are limits on the authority of the Court. Lord Diplock (in the GCHQ case) restricted the Court’s involvement in judicial review to the consideration of decisions which were illegal, irrational or subject to procedural impropriety. However, this traditional view has become blurred as administrative law has developed

So in her case can she start a judicial review ?

[William Blake]

I certainly think Home Office insisting that someone has a valid visa for this country when they are not even in this country is nothing more than a trick, a ploy to get numbers down. You will never meet any person in the street and ask them how long have you lived in this country and they will say - well I've been here 20 years but actually lived here for five cause I was on holiday five years ago or my passport expired abroad so I have only lived here for five years. This is absurd reasoning one which no one applies in real life. I say tha qulaifies as irrational.

[penanglad]

In my view the reinterpretation is irrational and unlawful. As I have said previously on another thread, in the old days leave to remain lapsed every time you left the Common Travel Area, even for a day trip to France. It was therefore impossible to maintain continuous leave to remain. The usual practice for visa nationals was to obtain leave to enter shortly before leaving for the UK, and for non-visa nationals the practice was to get new leave to enter upon re-entering the UK.

This completely defeats the object of the 10 year concession, which was to grant indefinite leave to people who had established strong ties to the UK through long residence over 10 years. Just because you have one week when you were overseas without continuous leave doesn't mean you don't have strong ties to this country.

[sam_lam15]

Dear All,

my situation is like this:

I have been a student in the UK since 1998,

Sept. 1998- July 2002 Studying a BSc Computing Degree, AND a BSc Multimedia Degree
Sept. 2002- Oct. 2003 Studying a Master Degree

Applied a work permit on 2nd October 2003 (4 weeks before student visa expired), after waiting 9 weeks, HO Workpermit department told me that my application's refused and I received passport on 28th Nov. 2003, by then my student visa already expired.

I then continued studying new courses and obtained new student visas

Jan. 2004 - Dec. 2005 Studying MSc Computer Science

March 2006 to now ACCA course, this course lasts 3 years, and I have already been given a 3 year student visa.

all my visas are obtained from uk, and within the past 10 years, my total number days of out-of-the-country is less than 3 months
my Question are:

1) Will my experience in 2003 of being refused of a WP or the fact that my visa was expired by 4 weeks affect my future application.

2) By Sept. 2008, I will be a student for 10 year, will I be able to apply the ILR on the bases of the Long Residence Concession

I will be grateful for any helpful replies.

Thanks

[ci07jjs]

Sam_lam 15,

The time you applied for workpermit won't be a problem as you applied for extension before your student visa expired.

However, your new student visa was not given until Jan 2004 even though your passport was returned to you on 28th Nov 2003 after wp rejection. what was your status between nov 2003-jan 2004? The gap to me seems significant and might...might possibly seen as a problem. Don't panic with my comments and wait for some more expert advice though.

[sam_lam15]

Sam_lam 15,

The time you applied for workpermit won't be a problem as you applied for extension before your student visa expired.

However, your new student visa was not given until Jan 2004 even though your passport was returned to you on 28th Nov 2003 after wp rejection. what was your status between nov 2003-jan 2004? The gap to me seems significant and might...might possibly seen as a problem. Don't panic with my comments and wait for some more expert advice though.

hi
during Nov. 03 - Jan. 04, I was waiting for my graduation which occured in Jan. 04.

also, I was told by someone, that there is a so called Section 3C, which exclude my reponsibility for this (NOV - JAN) gap., and I was still legal because I was given 90 days to appeal for the wp decision.

IS THIS CORRECT?, can someone else confirm this???, many thanks

[JA13I]

sam_lam15, you may want to open a new post so that your probelm will get the proper attention it deserves.

That said, there is a chance that Section 3C only protects you till the 28th of November '03 and the time from Nov-Jan might not be included. But the fact that you were issued the next visa in-country could be in favour to you. This could go eitehr way and you might need to get a professional opinion on this. And even then it might not be clear cut until you postal application for the ILR and then let the BIA sort it out.

[jes2jes]

Hi All!
Just to let you know that, I have today by God's grace receive my ILR. This is because, I had a renewal once overseas but the BIA still allowed this.

Wonderful news indeed!

[ci07jjs]

congratulations.