Tier 4 to ILR (10 years) and rights to work - help please

[Fon]

Hi
I'm helping my sister to make an application for ILR under 10 years residence. It is not going to be straight forward application as her total absence time is around 850 days in 10 years (way over 540 days mark, but never more than 6 months at a time). We have met with a lawyer and we are currently deciding whether to use him or not. Basic info is

- Arrived the in UK : Sept 2002
- Various Student visas : Sept 2002 – Jan 2014
- No overstayed or breaks between the student visas (no other type of visa in between and maximum 3 months between each student visas)
- Current visa is Tier 4 (Adult student) valid until Jan 2014
- Very strong ties to the UK (2 sisters with British passport), attended English boarding school for 6 years and has various internship with UK based companies.

After some research and a lawyer consultation we realise that there are 3 possible outcomes..

1. If we are lucky, she will get ILR straight away (short of miracle)
2. If she get rejected (after her current visa runs out) she will have to appeal. Our lawyer advises that the judge is likely to approve her ILR because of strong ties to the UK and the fact that she was a minor in the first 6 years of her 10 years (hence, frequent visits to homeland).
3. UKBA issues a Discretionary leave (up to 2.5years) instead, because they would not want her to go through to a judge knowing her strong case.

My questions are

1. This advice by our lawyer “….because immigration knows that the appeal judge is likely to approve your ILR due to strong ties to the UK , therefore instead of simply reject the application, the immigration will rather grant you a discretionary leave to buy their time for a few more years….” Does any know (or own experience suggests) if this fact to be true?

2. Does lawyer’s cover letter gives much weight to an application in the first instant? It will cost us £500 for just using him to make an application and make a cover letter. However, if this has to go to appeal it will cost a further £1500 (for a different lawyer). This make me think that we should apply ourselves and save the money in case we need to appeal.

3. If she gets the Discretionary leave, as I understand it is an extension to your current leave which in her case is Tier 4 student. Surely that doesn’t make sense to have Tier4 when you are no longer a student. Do you know what kind of extension will it likely to be? (particularly in term of work rights)


4. Whatever the outcome, the whole process (appeal or not) is likely to take up to 10 months. I know that under the article 3c “Continuation of leave pending variation decision” she is allowed to work. Does this mean the continuation would be on her current Tier 4? Because this has a limited work condition. Quoting from http://www.ukba.homeoffice.gov.uk/visas ... onditions/

• work for up to 20 hours per week during term time;
• work full-time during vacations;
• the work you do must not fill a full-time permanent vacancy (other than on a recognised Foundation Programme), and you must not be self-employed, ………
• If you are allowed to work, you can work full-time during vacations within the above limits. If you have completed your course and you apply to remain in the UK under the points-based system before your existing permission to stay expires, you can work full-time (within the above limits) until your application is decided

I found it really confusing that even though she will not be a student anymore, yet she won’t be allow to work full time or take a permanent job. Difficult situation to be for 9 months! Does anyone know if her official status will definitely be "Tier 4" while awaiting decision?

Any helps or advices would be greatly appreciated! She is looking to make an application around Dec 2013 just before her current leave runs out.

Thank you in advance!

[vinny]

Difficult, but possible.

If she makes an in-time valid application, then her leave is "treated as continuing" under [url=http:/https://www.gov.uk/government/publicati ... d-3d-leave]Section[/url] 3C/3D.

[Amber]

Are there any particularly compassionate or exceptional circumstances for the excessive absences?

[Fon]

Are there any particularly compassionate or exceptional circumstances for the excessive absences?

Only compassionate ground would be that at the age between 12-18, while school breaks for holidays she flew home to be with our parents. It is a boarding school so she HAD to not be there. She was a minor and could not be in the UK alone.

Three holiday breaks a year; 1 month of Christmas, 1 month of Easter and then 3 months summer. That went on for 6 years. So you could argue that it was necessary to leave the country.

We will take our chance and apply anyway, I'm just not sure it would help or not to have a lawyer or not.

[Fon]

Difficult, but possible.

If she makes an in-time valid application, then her leave is "treated as continuing" under Section 3C/3D.

So if she's holding Tier4 student now then while awaiting deciding her status would still be Tiere 4? We are trying to figure out if she could actually take a full-time job during the waiting time

[vinny]

Correct.