Help 10 Year ILR Refusal

[Jon336]

Hi Guys, My passport is atlast back after five months BUT with a refusal!

I didn't expect it but reading through the reason why I was denied it seems to me that this was an error correct me if I am wrong.

The decision goes like this: You left the United Kingdom on 18 June 2005(with valid leave) and made an out of time application on 20th September 2005(outside the UK). This was refused on the same day. You then made another out of time application as a student on 26th September 2005 and were granted up to 31 October 2007. You then re-entered the United Kingdom on 04 October 2005. (This period is less tha six months)

It goes on to say that between 30 June and 26 September 2005 I had no valid leave so I fail to meet the requirements pf para 276B(i)a. (But this period referred to is when I was out of the country)

My understanding is that residence is not considered to have been broken outside the United Kingdom and so long as I left with valid leave and came back with valid leave, which I did. Please some one correct me if I am wrong.

[NOG]

Jon336, very sorry to hear about the refusal. It must be extremely disheartening and stressful, especially after the long wait.

I am no expert so perhaps someone with suitable credentials will reply to your post, however, I assumed that in relation to period of less than six months outside the UK at once, this only applies to the time period when there is valid leave to remain. For extensions/new applications I believe the maximum of 6 months outside rule is not valid. From example, if you had valid leave during your stay overseas you could have stayed outside for a maximum of 6 months at one time.

I may be completely wrong.

[Loveislovely]

Hi Guys, My passport is atlast back after five months BUT with a refusal!

I didn't expect it but reading through the reason why I was denied it seems to me that this was an error correct me if I am wrong.

The decision goes like this: You left the United Kingdom on 18 June 2005(with valid leave) and made an out of time application on 20th September 2005(outside the UK). This was refused on the same day. You then made another out of time application as a student on 26th September 2005 and were granted up to 31 October 2007. You then re-entered the United Kingdom on 04 October 2005. (This period is less tha six months)

It goes on to say that between 30 June and 26 September 2005 I had no valid leave so I fail to meet the requirements pf para 276B(i)a. (But this period referred to is when I was out of the country)

My understanding is that residence is not considered to have been broken outside the United Kingdom and so long as I left with valid leave and came back with valid leave, which I did. Please some one correct me if I am wrong.

Oh no, this one really shocks me, I am really sorry to hear, did you use a solicitor, or did you do it alone? I hope that you may get some help, good luck.

[Jon336]

Thanks NOG.

But based on the examples given in the guidelines it seems that I have some grounds for a case.

An example is given in the UKBA guidelines where a person leaves the UK before his entrance clearance expires and then re-enters after 2 months with a valid entrance clearance even though its a fresh grant of leave. In this example they say his continous residence is not broken.
Unless there's a new amendment. Anybody with a better understanding can correct me here.

But thanks for the comiserations and hope all of you guys get what you are looking for.

[wpilr_nov12]

Page 13 of Long residence and private life guidance at http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary:

Example 2
 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.
Question
Has continuous residence been broken?
Answer
No. 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 six months. Continuous residence has been maintained, even though the person entered the UK with a fresh grant of leave.

BUT

276A(a)(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

I am not sure how these would play in your case.

[Jon336]

I did it alone Loveislovely was thinking that my case was well fine. I am going through the UKBA guidelines again to see whether I got it wrong but so far I feel this was the wrong decision. I still have 6 months on my current visa ano no appeal rights on this decision so I may have to see an Immigration Lawyer for advice

[Jon336]

Nov that's exactly what I am looking at and I would expect my case to suit those circumstances but I have been refused either through my ignorance or their error

[NOG]

276A(a)(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

what is "reasonable"? This is open to interpretation and I am sure this could be argued.

[wpilr_nov12]

276A(a)(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or

what is "reasonable"? This is open to interpretation and I am sure this could be argued.

Reasonable, my understanding: meaning when the person leaves UK, there is sufficient life left on the visa for a return back to UK.

[Jon336]

I was refused on grounds of failure to meet the requirements of para 276B(i)a of the immigration rules.

I have checked the whole document again and I feel I have been unfairly treated but I am not panicking yet just disheartened. I just need to find out what to do next.

[quantum1]

Hi Guys, My passport is atlast back after five months BUT with a refusal!

I didn't expect it but reading through the reason why I was denied it seems to me that this was an error correct me if I am wrong.

The decision goes like this: You left the United Kingdom on 18 June 2005(with valid leave) and made an out of time application on 20th September 2005(outside the UK). This was refused on the same day. You then made another out of time application as a student on 26th September 2005 and were granted up to 31 October 2007. You then re-entered the United Kingdom on 04 October 2005. (This period is less tha six months)

It goes on to say that between 30 June and 26 September 2005 I had no valid leave so I fail to meet the requirements pf para 276B(i)a. (But this period referred to is when I was out of the country)

My understanding is that residence is not considered to have been broken outside the United Kingdom and so long as I left with valid leave and came back with valid leave, which I did. Please some one correct me if I am wrong.

Something is seriously wrong here. That decision is wrong. The statement does not even make sense. You cannot make an out of time application outside the UK. I think you should see a solicitor and get him to speak to UKBA.

Can you post the refusal word for word so that the picture is clearer.

[wpilr_nov12]

I was refused on grounds of failure to meet the requirements of para 276B(i)a of the immigration rules.

I have checked the whole document again and I feel I have been unfairly treated but I am not panicking yet just disheartened. I just need to find out what to do next.

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

http://www.ukba.homeoffice.gov.uk/polic ... les/part7/

Must be inexperienced or overjealous CW.

[Jon336]

Nov there was sufficient time for me to get back to the UK when I left but its also stated clearly that lawful residence for the purpose in which my decision was made that is
paragraphs 276B to 276D and 276ADE.
(a) "continuous residence" means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return, all the sections that follow do not in anyway connect to mys situation

[Jon336]

Quantum the Refusal goes like this: The first few paras state all the in time applications and extensions i made since 2002 when I came in the UK then below it starts to get tasty:

You applied in time as a student on 24th Feb2004 but were refused on 05 April 2004 You lodged an appeal on 16th April 2004 and your appeal was allowed in December. Requested for a reconsideration in January and were granted leave until 30th June 2005.

You left the UK on 18the June 2005 and returned to XXXX where you made an out of time application as a student on 20th September 2005. This was refused on the same day. You then made anather out of time application as a student on 26th September 2005 and were granted from 26th September 2005 to Octeber 2007 and you re-entered the UK on 04 October 2005.

You then applied in time as a student 25 Oct 2007 and were granted up to 31st Oct 2008. He also lists other in-time applications I have made until today

He then concludes that Between 30th June 2005 and 26th September 2005 you had no valid leave in the United Kingdom and therefore you fail to meet the requirements of paragraph 276B(i) (a) of the immigration rules

The decision made:
Refusal to vary Leave
Paragraph 276D with reference to 276B(i) (a) of HC 395 (as ammended)
You applied for indefinate leave to remain in the category of long residency but your application has been refused.

You do not have 10 years continous lawful residency in the UK as you did not have any lawful leave between 30th June and 26th September 2005 and therefore you do not meet the requirements of paragraph 276 B(i) (a) of the immigration rules.

[ryan2020]

Hi Guys, My passport is atlast back after five months BUT with a refusal!

I didn't expect it but reading through the reason why I was denied it seems to me that this was an error correct me if I am wrong.

The decision goes like this: You left the United Kingdom on 18 June 2005(with valid leave) and made an out of time application on 20th September 2005(outside the UK). This was refused on the same day. You then made another out of time application as a student on 26th September 2005 and were granted up to 31 October 2007. You then re-entered the United Kingdom on 04 October 2005. (This period is less tha six months)

It goes on to say that between 30 June and 26 September 2005 I had no valid leave so I fail to meet the requirements pf para 276B(i)a. (But this period referred to is when I was out of the country)

My understanding is that residence is not considered to have been broken outside the United Kingdom and so long as I left with valid leave and came back with valid leave, which I did. Please some one correct me if I am wrong.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

read it they have same examples of continuous residence broken

[ryan2020]

Jon336, very sorry to hear about the refusal. It must be extremely disheartening and stressful, especially after the long wait.

I am no expert so perhaps someone with suitable credentials will reply to your post, however, I assumed that in relation to period of less than six months outside the UK at once, this only applies to the time period when there is valid leave to remain. For extensions/new applications I believe the maximum of 6 months outside rule is not valid. From example, if you had valid leave during your stay overseas you could have stayed outside for a maximum of 6 months at one time.

I may be completely wrong.

you are not wrong....
check this

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

page 14

'Time spent outside the UK
Continuous lawful residence is not broken if the applicant has a gap of leave outside the UK of less than six months. For example, applicants who leave the UK before their valid leave expires and obtain fresh entry clearance and re-enter the UK do not break continuous lawful residence, providing the absence from the UK is less than six months. See example 1 below.
Continuous lawful residence is broken if the applicant:
 has a gap of leave of six months or more, or
 departs the UK after their valid leave has expired.'

[quantum1]

Quantum the Refusal goes like this: The first few paras state all the in time applications and extensions i made since 2002 when I came in the UK then below it starts to get tasty:

You applied in time as a student on 24th Feb2004 but were refused on 05 April 2004 You lodged an appeal on 16th April 2004 and your appeal was allowed in December. Requested for a reconsideration in January and were granted leave until 30th June 2005.

You left the UK on 18the June 2005 and returned to XXXX where you made an out of time application as a student on 20th September 2005. This was refused on the same day. You then made anather out of time application as a student on 26th September 2005 and were granted from 26th September 2005 to Octeber 2007 and you re-entered the UK on 04 October 2005.

You then applied in time as a student 25 Oct 2007 and were granted up to 31st Oct 2008. He also lists other in-time applications I have made until today

He then concludes that Between 30th June 2005 and 26th September 2005 you had no valid leave in the United Kingdom and therefore you fail to meet the requirements of paragraph 276B(i) (a) of the immigration rules

The decision made:
Refusal to vary Leave
Paragraph 276D with reference to 276B(i) (a) of HC 395 (as ammended)
You applied for indefinate leave to remain in the category of long residency but your application has been refused.

You do not have 10 years continous lawful residency in the UK as you did not have any lawful leave between 30th June and 26th September 2005 and therefore you do not meet the requirements of paragraph 276 B(i) (a) of the immigration rules.

Truly shocking. See a lawyer. Might get UKBA to change it without an appeal, as it is obviously wrong.

[ryan2020]

Quantum the Refusal goes like this: The first few paras state all the in time applications and extensions i made since 2002 when I came in the UK then below it starts to get tasty:

You applied in time as a student on 24th Feb2004 but were refused on 05 April 2004 You lodged an appeal on 16th April 2004 and your appeal was allowed in December. Requested for a reconsideration in January and were granted leave until 30th June 2005.

You left the UK on 18the June 2005 and returned to XXXX where you made an out of time application as a student on 20th September 2005. This was refused on the same day. You then made anather out of time application as a student on 26th September 2005 and were granted from 26th September 2005 to Octeber 2007 and you re-entered the UK on 04 October 2005.

You then applied in time as a student 25 Oct 2007 and were granted up to 31st Oct 2008. He also lists other in-time applications I have made until today

He then concludes that Between 30th June 2005 and 26th September 2005 you had no valid leave in the United Kingdom and therefore you fail to meet the requirements of paragraph 276B(i) (a) of the immigration rules

The decision made:
Refusal to vary Leave
Paragraph 276D with reference to 276B(i) (a) of HC 395 (as ammended)
You applied for indefinate leave to remain in the category of long residency but your application has been refused.

You do not have 10 years continous lawful residency in the UK as you did not have any lawful leave between 30th June and 26th September 2005 and therefore you do not meet the requirements of paragraph 276 B(i) (a) of the immigration rules.

Truly shocking. See a lawyer. Might get UKBA to change it without an appeal, as it is obviously wrong.

his residence is broken according to the guidance notes i post the link above but posting the matter...

Example 1
 A person enters the UK on 1 September 2004 with entry clearance as a student which is valid until 31 October 2005.
 On 5 November 2005, after their previous leave expired, the person leaves the UK.
 On 5 January 2006 the person re-enters the UK with valid entry clearance as a student.
Question
Has continuous residence been broken?
Answer
Yes. The person did not have valid leave on the date of their departure, so continuous residence has been broken.
Example 2
 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.
Question
Has continuous residence been broken?
Answer
No. 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 six months. Continuous residence has been maintained, even though the person entered the UK with a fresh grant of leave.

[Jon336]

ryan I left the UK with valid leave and came back with valid leave even if it was a fresh grant. The examples you are giving just confirm what I think are my circumstances.

I maybe getting this the wrong way but based on the 2nd example I think the decision is wrong.

[ryan2020]

ryan I left the UK with valid leave and came back with valid leave even if it was a fresh grant. The examples you are giving just confirm what I think are my circumstances.

I maybe getting this the wrong way but based on the 2nd example I think the decision is wrong.

hmmm sorry i was wrong in that case... because examples i have pasted from guidance notes.

consult any good lawyer asap and resolve your visa.

[Jon336]

I am trying to book an appt with a lawyer. Being so far out of London does not help. But I have faxed it over and they think they can "fight" it on my behalf.

The fees are going to be exorbitant but I have no choice.
If anybody here lives in Edinburgh or Glasgow and they know a good solicitor that would ne really helpful

[ryan2020]

I am trying to book an appt with a lawyer. Being so far out of London does not help. But I have faxed it over and they think they can "fight" it on my behalf.

The fees are going to be exorbitant but I have no choice.
If anybody here lives in Edinburgh or Glasgow and they know a good solicitor that would ne really helpful

come to london for 1-2 days meet couple of solicitors and then give your case to any one you like....

i don;t know solicitors there.

[Jon336]

That is an option too. Let me see what I can do come Monday

[derlin]

That is an option too. Let me see what I can do come Monday

I'm afraid it's a tough call for a solicitor to overturn the decision. The reason behind the refusal adheres to the letter of the law: "you did not have any lawful leave between 30th June and 26th September 2005".

Reason no. 1: Applications made on 20 September 2005 and 26 September 2005 are out-of-time applications. By the letter of the law, continuous leave has been broken. Out-of-time applications are not covered by Section 3C of the immigration act 1971. Section 3C gives applicants continuous leave to remain while their applications are being processed by UKBA. This applies only if those applications were lodged before existing leave-to-remain expires. Read more about this from: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Reason no. 2: The applicant has a gap of 2 months, 25 days from 30 June 2005 to 26 September 2005. While the law allows for UKBA officers to exercise discretion where an applicant has a single gap, this can only be exercised if the gap is not more than 10 days. See page 14 of this document: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Yes! The applicant had valid leave to remain when he left the UK on 18 June 2005; and entered the UK with a valid visa on 4 October 2005. However, between 30 June 2005 and 26 September 2005, continuous leave has been broken by out-of-time application and impermissible gap. Hence, the decision is right by the letter of the law.

[Jon336]

derlin, I assumed that since I had limited leave to remain when I left the country the was no way I could have made an out of time application outside the country. Out of time applications, I thought apply to those the have been made inside the country.

See below

Continuous residence means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return.

and below;
To benefit from this, an applicant must have valid leave on the date that they departed the UK and valid leave on the date that they returned. Please note that this does not have to be the same grant of leave on departure and return (see Example 2). Nor is it necessary for the leave to be in the same category (i.e. an applicant can depart the UK with leave as a student and return with leave as a work permit holder). As long as the applicant has valid leave on both the date of departure and the date they return, they will not have broken continuous residence.

Of course section C doesn't apply here.
Are you saying that once I made an application outside the country and the denied then I broke my continous residence?
Clarify please