ILR on 10 years residence? HELP please

[HSMPgirl]

Hi all,

I have a dilemma. Basically, 10 years ago (2 June 1999) I came to the UK on a visitor's visa.

Before the visitor's visa expired (2 December 1999) I left the UK - on 14 November 1999. On 16 November 1999 I received a writers and artists visa.

On 14 December 1999 I re-entered the UK.

From then on I always had continuous grants of leave.

It's now been clarified by the latest Home Office caseworker guidance that as long as one has a grant of leave existing before the other leave expires, there is no 'gap' for ILR purposes.

However, my query is relating to the visitor's visa.

Recently I called a law firm and they said I can apply now. Today I called up the Home Office helpline, and I was told I am eligible to apply now as well - the HO rep even confirmed that a visitor's visa counts.

However, at the same time my mum also called on my behalf, and she was told by another HO rep that the visitor's visa doesn't count!

In light of the conflicting statements by the HO itself, does a visitor's visa count as "continuous lawful residence" for ILR purposes? Nowhere does it state in the rules that a visitor's visa doesn't count (nor does it mention anything about it in the caseworker guidance of April 09).

Please help! Thanks!!

[Wanderer]

I think we had this before - search for it - I think the consensus was that the visit visa was leave to enter and not leave to remain and therefore didn't count.

But I'm sure it's only five years for ILR on Artists and Writers visa....

[HSMPgirl]

Hi, thanks for this. I had posted on this before actually, but in relation to the "gap", which HO itself has now clarified in the guidance notes (apr 09)

Re: visitors' visa, in the rules it only states "leave to enter OR remain". So does that mean visitors' visa does count because it is leave to enter?

I did have a multiple-entry visa for 5 years, which means that I could have reentered on a visitors' visa again within that year if I had wanted, so surely that would be "leave to enter"?

2.3.2 Definition of lawful residence Lawful residence is defined in Paragraph 276A of the immigration rules as a period of continuous residence in which the applicant has had: • existing leave to enter or remain

[f2k]

not sure what the correct answer, my query would be that because you left UK in Nov 99 and then applied for artists visa and then (re)entered the uk in Dec doesnt that effectively 'reset' the clock. I am assuming your artist visa and received the stamping overseas.

so the question on 'continuous' residence is not applicable the minute you leave the uk on a visitors visa

[Wanderer]

Artists visa is five years for ILR - why hasn't OP already applied?

[HSMPgirl]

I called the Home Office helpline again, and a second caseworker emphasized that I am eligible to apply on the visitors' visa now, because the visitors' visa was still valid at the time (i.e. 6 months had not yet elapsed) - I repeated the question a number of times and she had the same answer. She even told me to book the life in the UK test ASAP.

Also it was a multiple-entry visa valid for 5 yrs...

By the way I couldn't apply on writers and artists until now, because in 2002 I switched to student, then switched to work permit in 06, etc...

There is some new guidance in the HO website, which has an example:

"A person enters the UK on 1 September 2004 with entry clearance as a student which is valid until 31 October 2005. On 25 October 2005 (before the previous leave expired) the person departs the UK. On 5 January 2006 the person re-enters the UK with valid entry clearance as a student. Will the person’s continuous residence be deemed to be broken?

No. Because the person had valid leave on the date of their departure and the date of their return and the time spent outside the UK was less than 6 months, continuous residence has been maintained, even though they re-entered with a fresh grant of leave."

So the HO woman on the helpline said that because I left the UK before 2 December 1999, by getting the visa on 16 November (48 hours after landing in my home country) I did not break my leave - she said that ANY period of stay, including visitors' visa, counts as "leave to enter".

Even in the worst-case scenario, if the visitors' visa ends the minute one steps outside the UK, there is another paragraph in the guidance:

"If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time), caseworkers should use discretion granting ILR, so long as the application meets all the other requirements."

In this case, the "gap" would be 48 hours, as I could not have made the appointment at the British embassy the minute I stepped off the plane, but it was as close as possible to that moment!

So my y query is, can/should I apply now, and highlight that portion of the new guidance in my application?

Thanks!!

[f2k]

obviously this is a unique case and i doubt that other than the UKBA no one will give you a definitive answer. Even there in the HO you did get 2 different answers. So to apply now or not? thats really up to you. also are you intending doing it by post or PEO?