Thank you once again Zimba.
I can assure you that I was looking at the long residence guidance and not the one that applies to the PBS routes as quoted by mail2debi.
Perhaps clarifying the source of my confusion may help. I am most likely overthinking it and being paranoid tbh.
- If you leave on the day that your visa is "Valid until" does it still count has having valid leave on exit? So does leaving at say, 17:00:00 on the "Valid until" date still count as having left the country with a valid leave/visa? I can't find any guidance on this, nor on the fact that the visa is valid until 23:59:59 on the "Valid until" date shown. I guess the question is what constitutes a valid leave/visa on exit - is it purely whether you have left on/before the "valid until" date or after? I ask because all the examples (the guidance and previous forum posts) show people leaving before the "valid until" date on their visa.
So the guidance seems quite clear on the fact that the condition to apply within 28 days applies only if you left after the expiry of your leave to remain, as per the below excerpt.
"
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 24 November 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)
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 24 November 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
If the applicant had existing leave to enter or remain when they left and returned to
the UK, the existing leave does not have to be in the same category on departure
and return. For example, an applicant can leave the UK as a Tier 4 (General) student
and return with leave as a spouse of a settled person. Continuous residence is not
broken as the applicant had valid leave both when they left and returned to the UK."
"
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"
Also, the examples that they have quoted in the guidance (below). So example 1 is quite clear. But it seems to me that the fact that example 2 does not explicitly specify when the application was made (nor the fact that it doesn't matter as the applicant left before their leave expired), leaves things up to the interpretation of the caseworker. Or am I, once again, just overthinking it?
Examples of continuous residence
This page gives you examples of when you must grant or refuse a long residence
application when considering the continuous residence requirement.
Example 1
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 5 November 2005, after their previous leave expired
• applies for entry clearance on 22 December 2005
• re-enters the UK with valid entry clearance as a student on 5 January 2006
The applicant did not have valid leave on the date of their departure, and failed to
apply for fresh entry clearance within 28 days of the original leave expiring.
Therefore continuous residence has been broken.
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.
