ILR 10 years long residence query - very scared

[nezinho]

Dear All,

I'm following up on a question I raised back in 2010 regarding my chances of meeting the continuous residence requirements on the 10 year ILR application. See original query and responses below:

http://www.immigrationboards.com/indefi ... ml#p396662

Now I'm coming up to my application date next month, and I've looked at the 10 year (SET(LR)) rules in place right now, and things appear to have changed. Just to give you a quick recap of my situation.

19 Sept 2005 - arrived in UK under student visa valid until 10 Aug 2009
9 Aug 2009 - applied for Tier 1 Post Study Work leave to remain
3 Sept 2009 - application was refused solely on the maintenance (funds) requirement due to my missing the qualifying period by one day and the use of investment ISAs as insufficient evidence.
18 Sept 2009 - left the UK voluntarily back to home country (please note that this was within the 10 working day period of Section 3D leave when an appeal could be brought)
Roughly 23 September 2009 - applied for new home passport due to my current one expiring in December 2009 (which would have caused problems with the UK entry clearance application)
16 October 2009 - new passport received
3 November 2009 - applied for Tier 2 post study work entry clearance from home country
January 2010 - Tier 2 post study work entry clearance granted
Mid-January 2010 - Returned to the UK

My worry is that the current rules state that if valid UK leave expired while outside the country and an application for new entry clearance was not lodged within 28 days of the leave expiry, the continuous residence is deemed to have been broken. At the same time it states that leaving the country and returning with valid leave within 180 days (even if the leave used to enter is different to that at previous departure) is acceptable.

I guess my question is quite simple:

Based on the information provided above, would my 10 year ILR application be valid? If not, is there any potential for the application of discretion in my case considering the following:

(1) My student visa was only valid for four years (11 Aug 2005 - 11 Aug 2009), when it should have been for four years + four (or six?) months due to the length of my four year degree
(2) prior to my in-UK Tier 1 PSW application, I tried to contact the embassy in my home country to get the student visa expiry extended by the additional four months but they did not respond
(3) when I applied for Tier 1 PSW I was refused on maintenance only, which I believe was not a valid reason based on the Pakina ruling
(4) the only reason I didn't apply once I returned to my home country was due to applying to get a new passport due to the imminent expiry of my previous one. and
(5) I did not overstay or break any immigration rules during my 10 years in this country

Do I have any hope?

Please let me know your thoughts. Many thanks.

[physicskate]

Dear All,

I'm following up on a question I raised back in 2010 regarding my chances of meeting the continuous residence requirements on the 10 year ILR application. See original query and responses below:

http://www.immigrationboards.com/indefi ... ml#p396662

Now I'm coming up to my application date next month, and I've looked at the 10 year (SET(LR)) rules in place right now, and things appear to have changed. Just to give you a quick recap of my situation.

19 Sept 2005 - arrived in UK under student visa valid until 10 Aug 2009
9 Aug 2009 - applied for Tier 1 Post Study Work leave to remain
3 Sept 2009 - application was refused solely on the maintenance (funds) requirement due to my missing the qualifying period by one day and the use of investment ISAs as insufficient evidence.
18 Sept 2009 - left the UK voluntarily back to home country (please note that this was within the 10 working day period of Section 3D leave when an appeal could be brought)
Roughly 23 September 2009 - applied for new home passport due to my current one expiring in December 2009 (which would have caused problems with the UK entry clearance application)
16 October 2009 - new passport received
3 November 2009 - applied for Tier 2 post study work entry clearance from home country
January 2010 - Tier 2 post study work entry clearance granted
Mid-January 2010 - Returned to the UK

My worry is that the current rules state that if valid UK leave expired while outside the country and an application for new entry clearance was not lodged within 28 days of the leave expiry, the continuous residence is deemed to have been broken. At the same time it states that leaving the country and returning with valid leave within 180 days (even if the leave used to enter is different to that at previous departure) is acceptable.

I guess my question is quite simple:

Based on the information provided above, would my 10 year ILR application be valid? If not, is there any potential for the application of discretion in my case considering the following:

(1) My student visa was only valid for four years (11 Aug 2005 - 11 Aug 2009), when it should have been for four years + four (or six?) months due to the length of my four year degree
(2) prior to my in-UK Tier 1 PSW application, I tried to contact the embassy in my home country to get the student visa expiry extended by the additional four months but they did not respond
(3) when I applied for Tier 1 PSW I was refused on maintenance only, which I believe was not a valid reason based on the Pakina ruling
(4) the only reason I didn't apply once I returned to my home country was due to applying to get a new passport due to the imminent expiry of my previous one. and
(5) I did not overstay or break any immigration rules during my 10 years in this country

Do I have any hope?

Please let me know your thoughts. Many thanks.

The rules are that you needed to have valid leave when leaving and re-entering the country. You must not have a gap of more than 6 months... meaning you can leave the country and not have leave for 6 months. Not sure where you got this 28 day business...

[secret.simon]

@Physicskate

Page 13 of the Long Residence Guidance Notes

My worry is that the current rules state that if valid UK leave expired while outside the country and an application for new entry clearance was not lodged within 28 days of the leave expiry, the continuous residence is deemed to have been broken. At the same time it states that leaving the country and returning with valid leave within 180 days (even if the leave used to enter is different to that at previous departure) is acceptable.

I would consider your leave broken, as you had not applied for your Tier 2 entry clearance within 28 days of your Tier 1 Post Study Work LR application being refused + the relevant 3D period.

I believe that the latter scenario listed above (leaving the country and returning with valid leave within 180 days) applies if you had left with valid leave and that you had applied for either and extension of that leave or made an application for new entry clearance while the previous leave was still valid. The crucial thing is that there is an overlap in the period of the previous leave and the period covered by the application of the next leave. If there is a gap, a gap of up to 28 days between end of leave and filing the application is allowed, but no more.

Assuming that you have remained on a Tier 2 visa since January 2010 and meet the other requirements, you have been eligible for applying for ILR since January this year.

I am not aware of the Pakina ruling, but from the link below, it seems that while you could have been covered by the ruling, you should have applied to be covered by the ruling by 22nd June 2011.

http://www.1stcontact.com/blog/featured ... a-victory/

No harm in applying for discretion, but remember that discretion is just that and is not certain to be granted.

[nezinho]

Hello all,

Thank you all so much for your messages. I must be honest, I am heartbroken at this news.

Sept-Dec 2009 was probably one of the hardest and most depressing times of my life as all the problems with the UK Border Agency could have been avoided via multiple means, such as (1) getting the amendment to my student visa expiry date to allow for the additional four months, (2) putting in the £800 into my current account just two days earlier, or (3) applying for entry clearance from my home country two weeks earlier than I did. Somehow every single avenue out of this problem has failed and now I don't know if I will obtain this 10 year ILR.

Just to clarify, I applied for Tier 1 PSW entry clearance from my home country, and not Tier 2 PSW.

I should hopefully qualify for the 5 year SET(O) ILR next year based on when I obtained Tier 2 General leave to remain and having the appropriate minimum salary, but this means potentially waiting a whole other year before I can begin living my life to the full. Until then I may just have to keep my head down and do my time.

Sorry for my rant. Thanks again for your responses.