HELP WITH TEN YEAR RULE

[SYH]

Well I did think there was guidance regarding absences and I meant if someone could put together a database via sticky with links or cut and paste what were the guidelines or faq's by issued time date in chronically order.

[John]

What is a good time ?

In my opinion, for you, never! That is, if I were you I would not spend the extra £200 applying for ILR in person at a PEO. After all there is no guarantee that they will be able to process your application on a same-day basis, given the doubt regarding your facts.

Far better for you to post the application ... cost £750 ... rather than £950 in person at a PEO.

By the way, William Blake, have you already passed the Citizenship Test?

[William Blake]

Taking the test shortly. The issue isn't doubt regarding facts. The issue is the one month gap outside the UK.

Putting money aside for the moment don't you think an in person application will increase my chance of success seeing that I get to speak with the caseworker. Does this not give me a better chance to have an influence ?

[Wanderer]

Taking the test shortly. The issue isn't doubt regarding facts. The issue is the one month gap outside the UK.

Putting money aside for the moment don't you think an in person application will increase my chance of success seeing that I get to speak with the caseworker. Does this not give me a better chance to have an influence ?

Personal apps are for straightforward cases, the person dealing with will find ur case not straightforward based on what u've posted and pass ur case back office to a caseworker.

From what I've heard the PEO staff are just rubber-stampers for the piss-easy cases. Not caseworkers per se.

[immigration1]

I wouldn't appeal that they were wrong in applying the rules but rather that the discretionary power should be applied in my case as a one month break is not sufficient to sever my ties with the UK or deny me of my fundamental place in society.

I understand that but an Immigration Judge won't be able to take into account the Discretionary element i.e. whether the Secretary of State should or shouldn't have exercised his discretion when he made the decision. This has been clearly established in Case Law (unfortunately I can't remember the name of the case). Best would be to wait until 2009...

[William Blake]

Best would be to wait until 2009...[/

quote]

Point taken but why wait. If I am refused then I appeal. I am refused there then I re apply in 2009. Unless there is some existing reason that I don't know about or some change in the law that would stop me from reapplying in 2009. But there is a chance I may get it now in which case that's two years of my life I can make a lot of progress in.

Immigration 1 do you say it's best to wait til 2009 because of the possibility my application may fail now or is there some other reason.

[Jeff Albright]

I understand that but an Immigration Judge won't be able to take into account the Discretionary element i.e. whether the Secretary of State should or shouldn't have exercised his discretion when he made the decision. This has been clearly established in Case Law (unfortunately I can't remember the name of the case). Best would be to wait until 2009...

just to make one important addition.
An Immigration Judge has no power to accept the argument that the Discretion OUTSIDE the rules should have been exercised differently, as it is entirely up to the Secretary of State who is not bound by the rules doing so.
This only applies to a discretion WITHIN THE RULES that the Secretary of State could have, but failed, to exercise differently.

[Jeff Albright]

Point taken but why wait. If I am refused then I appeal.

If you are refused and threatened with removal, your clock will stop and any time you spend pursuing your appeal will not be included into your continuous residence. I do not see much chance of success out of this type of appeal, though.

[penanglad]

William Blake

There were guidelines before as well, it's just that they continued to apply the old guidelines even after they incorporated the long residence concession into the Immigration Rules. Previously, it was a concession outside the rules.

Strictly speaking yes, I agree you wouldn't qualify based on the words of the Immigration Directorate Instructions.

But you have to realise that if you don't qualify, neither do 99% of lawful long-term residents. In those days most non-visa nationals would go back to their home countries for a holiday, etc., when their leave was due to expire and get new leave to enter on re-entry. There were no entry clearance requirements for long-term students, work permit holders, etc. So this was more convenient than applying to the Home Office. All students did this, e.g. if they had leave to enter for A-levels, then started a university degree after the summer holidays.

But not only that, until around 2000, all leave to enter/remain expired each time you left the country. So if you were given a four-year student entry clearance, and the next week you went to France for a weekend, then your leave to enter lapsed as soon as you left the UK. When you re-entered you would be given fresh leave to enter to complete your previous leave if you still qualified, but while you were outside the UK you had no leave to enter/remain. So for example, the situation would not have been different if your working holiday entry clearance had not expired when you were in France, but you simply decided to seek re-entry as a student when you returned.

In 2000 they changed the rules so that leave to remain for longer than 6 months did not lapse:

20A. Leave to enter or remain in the United Kingdom will usually lapse on the holder going to a country or territory outside the common travel area. However, under article 13 of the Immigration (Leave to Enter and Remain) Order 2000 such leave will not lapse where it was given for a period exceeding six months or where it was conferred by means of an entry clearance (other than a visit visa).

I applied after the incorporation into the Immigration Rules but before the new guidelines came out. I had a five-month period where I was studying in China (part-paid for by my employer-to-be) and a four month period when I went home after my degree but before coming back to the UK as a working holidaymaker, both of which times I had no leave to enter/remain. I had no problems getting ILR in person.

I would advise going in person, you cannot overestimate the value of being able to get across that you are a normal person who speaks English and has lived here a long time and has strong ties to this country, and being able to answer any of their questions. Go in a suit and tie, as if you were going to a work interview, have a file of papers documenting the whole time you were in this country, smile and be polite.

If you are challenged about this period when you have no leave, I would say:

1) I am a non-visa national and there was no reason in those days for me to apply for leave to enter when I was in France when I could get it at Heathrow. This is what everyone used to do.

2) In any case, before the Immigration (Leave to Enter and Remain) Order 2000, leave to enter/remain always used to lapse each time you left the country, so even if you went for a weekend during the period of your leave your leave to enter/remain would have lapsed while you were abroad.

[sunnyday]

I think you should apply this year. You have enough time on your current visa to cover until 2009, if you do get refused, which then means you could re apply again in 2009. but I'd say you have a good chance of winning now once you provide sufficient documents. If you wait till 2009 and get refused, you won't have any visa cover and would probably have to leave.

I also think they should apply the new rules for people entering into the country from 2007 onwards when the rules are exercised, but not for people who have stayed here long before that.

[sunnyday]

William Blake

There were guidelines before as well, it's just that they continued to apply the old guidelines even after they incorporated the long residence concession into the Immigration Rules. Previously, it was a concession outside the rules.

Strictly speaking yes, I agree you wouldn't qualify based on the words of the Immigration Directorate Instructions.

But you have to realise that if you don't qualify, neither do 99% of lawful long-term residents. In those days most non-visa nationals would go back to their home countries for a holiday, etc., when their leave was due to expire and get new leave to enter on re-entry. There were no entry clearance requirements for long-term students, work permit holders, etc. So this was more convenient than applying to the Home Office. All students did this, e.g. if they had leave to enter for A-levels, then started a university degree after the summer holidays.

But not only that, until around 2000, all leave to enter/remain expired each time you left the country. So if you were given a four-year student entry clearance, and the next week you went to France for a weekend, then your leave to enter lapsed as soon as you left the UK. When you re-entered you would be given fresh leave to enter to complete your previous leave if you still qualified, but while you were outside the UK you had no leave to enter/remain. So for example, the situation would not have been different if your working holiday entry clearance had not expired when you were in France, but you simply decided to seek re-entry as a student when you returned.

In 2000 they changed the rules so that leave to remain for longer than 6 months did not lapse:

20A. Leave to enter or remain in the United Kingdom will usually lapse on the holder going to a country or territory outside the common travel area. However, under article 13 of the Immigration (Leave to Enter and Remain) Order 2000 such leave will not lapse where it was given for a period exceeding six months or where it was conferred by means of an entry clearance (other than a visit visa).

I applied after the incorporation into the Immigration Rules but before the new guidelines came out. I had a five-month period where I was studying in China (part-paid for by my employer-to-be) and a four month period when I went home after my degree but before coming back to the UK as a working holidaymaker, both of which times I had no leave to enter/remain. I had no problems getting ILR in person.

I would advise going in person, you cannot overestimate the value of being able to get across that you are a normal person who speaks English and has lived here a long time and has strong ties to this country, and being able to answer any of their questions. Go in a suit and tie, as if you were going to a work interview, have a file of papers documenting the whole time you were in this country, smile and be polite.

If you are challenged about this period when you have no leave, I would say:

1) I am a non-visa national and there was no reason in those days for me to apply for leave to enter when I was in France when I could get it at Heathrow. This is what everyone used to do.

2) In any case, before the Immigration (Leave to Enter and Remain) Order 2000, leave to enter/remain always used to lapse each time you left the country, so even if you went for a weekend during the period of your leave your leave to enter/remain would have lapsed while you were abroad.

To be honest, your case sounds a bit too complicated for the in-person application. Most people would advice to use postal service if the application is complicated. Yet at least your outcome is very positive.

[William Blake]

Hi Guys thanks for taking time so far to assist me with my problem.

Costa mentioned I could get my thesis supervisor to write a letter on my behalf. I have mentioned this to him and he is willing. I just wondered as did he with such a letter what points should be touched upon. That is what should the letter talk about / say.

I also am looking to get other letters from community centres I was involved in and from other lecturers and head of departments. Bearing in mind I am applying under the long residence category. What should these letter say.

So to sum up what should a supporting reference for the long residence cartegory talk about?

Anyone got any experience with this ?

[William Blake]

Hi penanglad,

Thanks for your valuable input. I really appreciate your time. You quoted from the immgration order 2000 (arrival and departure). So, am I to understand - can you confirm - that even if I had a valid visa back then in 1999 when I left the UK and returned it would still mean that I would not have continuous residence as it is currently defined ? That is to say that even if I had done all that the law currently requires I would still not be able to qualify ? Can you provide me with a link or reference to this 2000 act ?

[penanglad]

Hi penanglad,

Thanks for your valuable input. I really appreciate your time. You quoted from the immgration order 2000 (arrival and departure). So, am I to understand - can you confirm - that even if I had a valid visa back then in 1999 when I left the UK and returned it would still mean that I would not have continuous residence as it is currently defined ? That is to say that even if I had done all that the law currently requires I would still not be able to qualify ? Can you provide me with a link or reference to this 2000 act ?

Yes. See

http://www.ind.homeoffice.gov.uk/lawand ... ules/part1

and

http://www.opsi.gov.uk/si/si2000/20001161.htm[/url]

[William Blake]

Well thanks for all your input. I have submitted my application by post which they received on the 30 November 2007. I hope by end December to have a result. I dont feel good - about the application or in general as the process has completely depressed me. I even feel like after ten years my time in the UK is coming to an end as this is the end game for me.

I have tried to account for the gap as well as asking directly for the discretionary power to be applied. I have character reference from professionals, professional organizations and friends as well as my solicitors representations. I have also included my original uni acceptance letter to show I had secured a course before going. My bank statement from 1999 is included showing that my UK acount had over £2000 in it when I went to France and so I clearly wanted to return. But I worry so much I won't get it. In fact the worry is almost crippling. I almost just want to go to bed and sleep for four weeks and wake up just in time to get the result. It's depressing and I find it a challenge to be motivated.

Funny thing is the way I felt when I sent the application. I should have felt excited or have some anticipation but instead I felt that I had committed some wrong in daring to want to be a permanent resident of this country. That one month and a day is the only and total time I have spent outside the UK in ten years and I have never returned to my country of origin. In fact now there is nothing to return to as all my communtiy ties are broken there. Of course I have said all this to the caseworker in my personal witness statement. But I just feel they will only see the gap and nothing more or try to dig up something else on me and just exclude me in the interest of getting rid of another foreigner from the UK.

If I had applied for a visa in a temporary category I feel they would be inclined to give it to me but here we are talking about the right to live permanently in the UK and I think they will try to prevent me from having this like how they would protect gold itself i.e taking the bread out of someone's mouth. In preping my application and enquiring of BIA and others this is the feeling I have gotten from thre process. One of being unwanted in Britain..

[William Blake]

I would be grateful to know if you have made a long residence application with a gap and what the result has been and what you have done about it. Also if you work in this line of work can you tell me about any applications for long residence you know of that were made with a gap and what has been the ultimate result.

[avjones]

very best of luck!

[William Blake]

I have a pending 10 yr long residence application. There is an issue of a one-month gap. When I last checked on this application I was informed that the application is “awaiting further considerationâ€

[vinny]

See also Chapter 1 -General provisions, Section 5 - Section 3C and 3D of the Immigration Act 1971 (as amended)

[OL7MAX]

I'd worry whether putting in a new application invalidates the one already under consideration.

It is regrettable that the experience has left you feeling unwanted but that's their general intention, IMHO.

[aboudi]

I am in a similar situation to yourself, the difference is i have lost the original passport i came to the uk in and had to send in alternative proof, i also had a copy of my SAB, the interesting bit is that on both occasions when i had leave to remain given to me at the airport in 97 and 98 there was a copy of the landing card in these instances in my SAB with an explanation for giving me leave, but there was no copies of any of the other landing cards which really makes me think do they really keep them? cuz if they held that information they should have provided it to me under SAB rules..

in reply to your first question i submitted my application and had a confirmation letter sent to me dated "1 October", until now every time i call i am told it is still under further consideration... and i have to wait until the 14 week period expires before anyone can look into it.... so i think your gona have to wait a bit longer.... Best of luck.

[William Blake]

Thanks Vinny,

As always very relevant information.

So from the document you referred me to, section 3C comes into play only after leave expires and the application is still undecided by BIA. So the relevant part of that document then is:

3. SECOND AND SUBSEQUENT APPLICATIONS
3.1. Applications lodged during the currency of limited leave

If two or more applications are made during the currency of substantive leave to enter or remain and are undecided, they should be decided at the same time so that if 3C is triggered it will expire at the same time for both applications. If section 3C is triggered after multiple applications have been made, and if exceptionally the applications are not decided together, leave will be treated as continuing until the end of the time limit for appealing against the last decision made.

So then before my current visa expires I can submit for a student application extension which will then be decided if the long residence fails. Is this the correct interpretation ?

Above it says that if the applications are submitted "during the currency of substantive leave ...". So they don't have to made simultaneously do they, just before current leave expires and 3C kicks in ? Right ?

So in practical terms seeing that HO already has my passport what do I send them ? Application form (FLRS), coverletter explaining what I am doing, and other relevant documents as per FLRS application is that it? Other than the required docs for a student application is there anything else I would need to send or watch out for?

[William Blake]

I am in a similar situation to yourself, the difference is i have lost the original passport i came to the uk in and had to send in alternative proof, i also had a copy of my SAB, the interesting bit is that on both occasions when i had leave to remain given to me at the airport in 97 and 98 there was a copy of the landing card in these instances in my SAB with an explanation for giving me leave, but there was no copies of any of the other landing cards which really makes me think do they really keep them? cuz if they held that information they should have provided it to me under SAB rules..

Secondly, even if you get the file of papers from the HO, it won't show you much that you don't know already also the immigration service stopped using embarkation checks from March 1998 onwards and in any event the burden is on you to show that you remained in the UK throughout these ten years without any gap.

VERY relevant point.
Your Home Office file will probably not show up any records of you getting visa from abroad (through the Embassy) and I have some confidence that if you are non-visa national and was given leave to enter at the port, this might not have been linked to your HO file, either. The port file is not automatically linked to your HO file, anyone seeking information from your port file would have to physically pick up the phone and call Ports Liaison Unit to obtain those records.
I also have suspision that when you enter the UK and fill in the landing card, there is no electronic record of your entry - at least in 1998 it is unlikely there was any. The only record of your entry is your filled in landing card with the IO records at the back showing your reasons for entering the UK and his stamp. The card is then sent to Landing Cards Unit and held there for N number of years.
So Immigration1 is correct that you will have to document all the years you stayed here and produce evidence to satisfy the officer that your were present in the UK all this time, which would probably be the passports you held in the past 10 years with the UK immigration stamps in them.

in reply to your first question i submitted my application and had a confirmation letter sent to me dated "1 October", until now every time i call i am told it is still under further consideration... and i have to wait until the 14 week period expires before anyone can look into it.... so i think your gona have to wait a bit longer.... Best of luck.

You mean they said they can take up to 14 weeks right ? Not that you have to wait 14 weeks before someone looks at it.

Does anyone have an indication as to the likely success rate of these applications that are passed on for further consideration?

What are they considering? I guess whatever issues there maybe with the application but is it now a case of a senior caseworker needing to review it and make final decisions. I did ask this question but the lady didn't know the answer. I will ring again but does anyone have any thoughts on this?

[aboudi]

was told when applications take this long (like myself) they are usually looking for a reason to say no cuz if they wanted to approve the application they would do so at the earliest opportunity, heared of people getting their approvals within 5 to 6 weeks! on the 10 year category. When i call the HO on the phone the lady said she cant instigate anything before the 14 weeks are over.

[iceman010899]

Hi

I made SAB request and they dont have any landing cards on me. I entered in 1998. I have my passports though. Will this be a problem when applying for ILR under the long residence rule ?

Thanks.