ILR 10 years application refusal case

[vinca]

Hello, I am new to this site but have been told that it is very informative.

The basics are:

I applied for ILR 10 years category in 2008. I was refused by the HO due to a gap in Leave to enter or remain (LTR) student category whilst I was in the USA on an exchange programme. The gap was 5 days (31st Oct - 6 Nov 2002 expiry date - grant date respectively as on visas). The refusal wording was;

"in view of the fact you did not have valid LTR for the period between 31st Oct and 16 Dec (error, HO later accepted as 6 Nov), it has been decided that you have not had 10 years continuous and lawful residence in the UK" It also makes reference to not satisfying paragraph 276D with ref to 276B(i)(a).

Please note that at the time I left the UK on a valid LTR, made an on-time application whilst in the US and returned with the fresh LTR that was granted by the FCO in the Sates.

At the time I appealed the decision to the AIT but it was dismissed.

4 years on, I plan on making a fresh application for the same period but would like your views on the decision. Any help/advice would be very much appreciated!

Thanks very much.

Vinca

[quantum1]

Can you please clarify:

Visa expiry date 31 Oct 2002
Visa Grant date 06 Nov 2002

You left country before leave expired
applied abroad and were granted visa

Is the above information correct. If so then by today's rules you would qualify.

[vinca]

Can you please clarify:

Visa expiry date 31 Oct 2002
Visa Grant date 06 Nov 2002

You left country before leave expired
applied abroad and were granted visa

Is the above information correct. If so then by today's rules you would qualify.

Hi quantum, thanks so much for your response .

Yes, all the above is correct. I left on an LTR before the 31st Oct, got a fresh on whilst in the USA, on-time, returned with the fresh LTR. At the time, though the refusal was absolutely incorrect! I feel I have a case. Just looking for verification on this as well as how to prepare a fresh application after 4 years of dormancy. I dont want to come across as telling the case officer how to do their job..but from what i've read on here, it seems necessary.

[quantum1]

Can you please clarify:

Visa expiry date 31 Oct 2002
Visa Grant date 06 Nov 2002

You left country before leave expired
applied abroad and were granted visa

Is the above information correct. If so then by today's rules you would qualify.

Hi quantum, thanks so much for your response .

Yes, all the above is correct. I left on an LTR before the 31st Oct, got a fresh on whilst in the USA, on-time, returned with the fresh LTR. At the time, though the refusal was absolutely incorrect! I feel I have a case. Just looking for verification on this as well as how to prepare a fresh application after 4 years of dormancy. I dont want to come across as telling the case officer how to do their job..but from what i've read on here, it seems necessary.

Under the rules in place today you will definitely qualify if everything else is in order. I do not know how the rules were formulated back in 2008 so I could not comment on whether you qualified then or not. The fact that you appealed and it was refused by a judge is poignant. You should understand that the rules governing 10 year long residency have changed quite a bit over the years and have become more fair. So something that would have disqualified you back then would now be overlooked.

[vinca]

Can you please clarify:

Visa expiry date 31 Oct 2002
Visa Grant date 06 Nov 2002

You left country before leave expired
applied abroad and were granted visa

Is the above information correct. If so then by today's rules you would qualify.

Hi quantum, thanks so much for your response .

Yes, all the above is correct. I left on an LTR before the 31st Oct, got a fresh on whilst in the USA, on-time, returned with the fresh LTR. At the time, though the refusal was absolutely incorrect! I feel I have a case. Just looking for verification on this as well as how to prepare a fresh application after 4 years of dormancy. I dont want to come across as telling the case officer how to do their job..but from what i've read on here, it seems necessary.

Under the rules in place today you will definitely qualify if everything else is in order. I do not know how the rules were formulated back in 2008 so I could not comment on whether you qualified then or not. The fact that you appealed and it was refused by a judge is poignant. You should understand that the rules governing 10 year long residency have changed quite a bit over the years and have become more fair. So something that would have disqualified you back then would now be overlooked.

Thanks again for a prompt response. Indeed, I agree. I believe the major change was the example given in the guidelines, namely the part in the answer highlighted in bold (below). This seems to have been added since then;

Example 1

A person has leave in the UK that expires on 15 September 2008. The person departs the UK before their leave expired on 10 September 2008. Whilst the person is abroad, they obtain fresh entry clearance and re-enter on the 30 October 2008.

Question: Has continuous lawful residence been broken?

Answers: No, the person was abroad while they had a gap in Leave, so they have not broken their continuous lawful residence.

Back then the immigration judge appeared to believe that the gap (regardless of on time submission) still constituted a break of continuous lawful residency as I did not have leave to enter or remain during said period and section 3C did not avail me. He went on to mention that if indeed his take was incorrect, he found it hard to see where a line could be drawn in terms of time spent outside the UK without entitlement.

Admittedly, I have not been paying much attention to changes in rules/guidelines not least due to the dejection suffered during the said period. I suppose it is clearer now and I may make a fresh application highlighting the example above and including it with my application.

I'm still uncertain as to how much detail of my previous application to include now. Any advice would be great. Cheers!

[vinca]

Can you please clarify:

Visa expiry date 31 Oct 2002
Visa Grant date 06 Nov 2002

You left country before leave expired
applied abroad and were granted visa

Is the above information correct. If so then by today's rules you would qualify.

Hi quantum, thanks so much for your response .

Yes, all the above is correct. I left on an LTR before the 31st Oct, got a fresh on whilst in the USA, on-time, returned with the fresh LTR. At the time, though the refusal was absolutely incorrect! I feel I have a case. Just looking for verification on this as well as how to prepare a fresh application after 4 years of dormancy. I dont want to come across as telling the case officer how to do their job..but from what i've read on here, it seems necessary.

Under the rules in place today you will definitely qualify if everything else is in order. I do not know how the rules were formulated back in 2008 so I could not comment on whether you qualified then or not. The fact that you appealed and it was refused by a judge is poignant. You should understand that the rules governing 10 year long residency have changed quite a bit over the years and have become more fair. So something that would have disqualified you back then would now be overlooked.

hi quantum, you seem quite knowledgable, I have a question if i may;

Is the 10 year period claimed limited to the guidelines that existed at the same period? i.e. if say one was claiming between 97 - 2007, and applied today, would the caseworker use guidelines/interpretations as of 2007 or 2012 (i started a new thread on this just in case)?

Thanks in advance!

[quantum1]

the grant is based on the rules in place at the time the application is considered or when the application was made. Last time I checked the requirement was that you had to have accrued a period of 10 years continuous stay. It does not matter whether the period was acquired 10 years ago or yesterday.

The applicant must meet the following requirements, in order to be granted indefinite leave:
 The applicant must have at least 10 years lawful residence in the UK.
 There must be no reason why granting leave is against the public good. For more information, see related link: Consideration of relevant points.
 The applicant must meet the knowledge of language and life requirement. For more information, see related link: Knowledge of language and life in the UK.
 The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. For more information, see related link: Criminality requirement for settlement.
Once an applicant has built up a period of 10 years continuous lawful residence, there is no limit on the length of time afterwards that they can apply. This means they could leave the UK, re-enter and apply for settlement based on a 10 year period of continuous lawful residence they built up in the past.

[vinca]

the grant is based on the rules in place at the time the application is considered or when the application was made. Last time I checked the requirement was that you had to have accrued a period of 10 years continuous stay. It does not matter whether the period was acquired 10 years ago or yesterday.

The applicant must meet the following requirements, in order to be granted indefinite leave:
 The applicant must have at least 10 years lawful residence in the UK.
 There must be no reason why granting leave is against the public good. For more information, see related link: Consideration of relevant points.
 The applicant must meet the knowledge of language and life requirement. For more information, see related link: Knowledge of language and life in the UK.
 The applicant must not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974. For more information, see related link: Criminality requirement for settlement.
Once an applicant has built up a period of 10 years continuous lawful residence, there is no limit on the length of time afterwards that they can apply. This means they could leave the UK, re-enter and apply for settlement based on a 10 year period of continuous lawful residence they built up in the past.

Thanks for that. I believe that's right. The rules is what is used at the point of application as opposed to the period of 10 years accrued. Just needed confirmation. Very much appreciated quantum!