Switching visa out of country considered a gap?

[ismangil]

A friend is applying for ILR under 10 years continuous legal stay in UK. She got a PEO appointment, but the case officer there could not grant it right away because they consider there was a one day gap.

So it was sent off for postal consideration. She added more information from the Uni office that verified she in fact applied in time.

Now I was told she got a refusal letter, but this one is different:

• She was originally a dependant on her father's visa

• In 2003, when she was at Uni she then tried to switch to student visa on her own right

• Got PEO appointment, but was told she had to switch out of country

• So she went home for summer holiday, applied for a student visa. Got back here, everything seems fine

However, it turns out that this out of country switch is considered a "gap", that is if you leave UK on one visa status and get back in on another, even if it's only a short period, it has re-set the 10 years timer.

She has been told there is a right to appeal or also to ask reconsideration with additional info.

• Should she appeal or just ask reconsideration?

• Would an argument saying "I only left the country because Home Office told me to!" be accepted?

Note that the number of days she was away is not raised as an issue. I think she said it was in total 188 days over 10 years.

Thanks in advance for any advice.

[ismangil]

OK, after re-reading http://www.ukba.homeoffice.gov.uk/sitec ... chapter18/

I think I found the paragraph that says it "resets" your clock.

"To benefit from this, an applicant must have current leave covering the whole of the period spent out of the country and will have been readmitted, on return from his absence, to continue that period of existing leave. A person who leaves the UK when one period of leave expires, and comes back with a fresh grant of leave, will not be resuming his continuous residence, but will instead be starting a new period of residence in the UK

But strictly speaking, her leave has not expired. She simply switched mid-term. So if she hadn't switched she can get back in anyway. And according to the para above, she will not have reset the clock.

::sigh::

[paulp]

Find a good immigration consultant to argue the case.

[RAJ2007]

HO should clear this point. so many people in this situation does not know the rule clearly and also the HO statement mentioned above is not clear. It all depends on how you interpret the rule.

Has anyone in the same situation has won the appeal against HO? Please come foreward to throw some light in this matter.

[jes2jes]

HO should clear this point. so many people in this situation does not know the rule clearly and also the HO statement mentioned above is not clear. It all depends on how you interpret the rule.

Has anyone in the same situation has won the appeal against HO? Please come foreward to throw some light in this matter.

I am going to apply in two months and have the same issue. Since their interpretation is warped, I asked for clarification via email and on the phone and both said it was not a gap. I am going to use those two items as evidence since it is not clear and some case workers too say it is a gap if you switched abroad with an existing LTR.

Thank God I have an email to argue my case, I will advise anyone using the 10 year rule to seek clarification if you have the above scenerio before applying.

[ismangil]

HO should clear this point. so many people in this situation does not know the rule clearly and also the HO statement mentioned above is not clear. It all depends on how you interpret the rule.

Has anyone in the same situation has won the appeal against HO? Please come foreward to throw some light in this matter.

Well, in the refusal letter of my friend they made it pretty clear that they interpret ANY switching abroad, whether done within expiry or not, constitutes a gap.

[ismangil]

Find a good immigration consultant to argue the case.

Yup. There's an appointment this Tuesday. We'll see what the consultant says, whether an appeal is likely to succeed or not.

[ismangil]

There has been a happy end to this story.

The immigration lawyer was a dead end, they said it has little chance of succeeding.

So more out of desperation, my friend decided to appeal on her own behalf, without any representation to argue her case.

Apparently it was an easy thing! The judge said it was obvious she always has valid leave to remain. And here is the key, I quote from the judgment:

[Respondent] conceded that the author of the refusal letter may not have been aware of the Tribunal decision in TT (long residence -- "continuous residence" -- interpretation) British Overseas Citizen [2008] UKAIT 00038, in which the Court held: "for the purpose of paragraphs 276A-276D of HC 395, a period of continuous residence, as defined in paragraph 276A(a), is not broken in circumstances where a person with leave to remain in the United Kingdom obtains further leave from an entry clearance office while temporarily outside the United Kingdom prior to the expiry of the leave to remain.

So, if you've been refused due to a 'gap' that is in fact not a gap, appeal away!