ILR - Technical Query

[Flash]

Hello,

I have an ILR endorsement (4 years work permit employment). I recently applied for a Returning Resident Visa, 84 days after the 2 years absense limit. I explained the reasons in the cover letter, but the clearance was refused. They haven't done anything on the ILR endorsement on my old passport, nor any other stamp on my new passport except the usual visa rejection entry on the last page. However, I have been given an option to appeal which I will be submitting.

I have been getting job offers (I have left the last company) for UK. The technical query relates to the ILR interpretation and application.

1. By definition, ILR means Indefinite Leave to Remain, i.e., no time limits to 'Remain'. Is it then just a question of how you 'Enter' UK ? If within the 2 years absence limit, you don't need a visa, if beyond you do. Would this then mean that, if I re-enter UK on a Work Permit or a Business Visa now, I can again remain indefinitely in the UK on my previosly stamped ILR ? I mean the Returning Resident Visa to re-enter UK was refused, but a Work Permit or a Business Visa may get granted, and then once I re-enter UK again on a valid visa, I can then remain indefinitely in the UK on my previously stamped ILR ? If so, then how can I get the ILR transferred on my new passport ? Also, is the outcome of my appeal then immaterial ? As it was for a Returning Resident Visa to re-enter UK, but I already entered UK on another Visa. Is this logic technically correct, and is this how the rules apply ?

2. The ILR was stamped on my old passport. Does the clearance refusal mean I have lost my ILR ?

3. If I re-enter UK on a Work Permit or a Business Visa now, during the 2 months appeal process, would it automatically cancel my ILR ?

I am not clear as to whether I have lost the ILR or not. If I have, in what way can I re-acquire it ? Or is this question not a question at all ? I mean, ILR is to remain indefinitely in the UK, however, to enter, if you are within the 2 years limit, you can enter without the need of a visa, and if you are beyond, then you just need a valid visa to re-enter, whatever that may be, and then remain indefinitely.

Any thoughts / experiences,

Thanks in advance

[sywahu]

Sorry to state the obvious but why on earth did you not make sure you stayed within the 2 year limit? I can only imagine some extreme personal reasons that would cause one to forget about this. Just because it will get very hard to get ILR in the future.

As regards your ILR, as far as I know, its no more and you have to enter UK under some other visa category.

[rogerroger]

i also lost my ILR in the 80s and entered the UK in the 90s on a student visa. and had to go through the whole process again.

i dotn think you are stamped upon entry into the UK everytime, is that correct?

in that case, can one not enter the UK on any other visa and then use the previous ILR. or does the home office maintain a database to ensure people dont overstay more than 2 years.

i think there is also some discretion which can be exercised by the immigration officers. my dada was the recipient of this "largesse" some years ago, when he being on ILr was told either stay in the UK or remain outside the UK !!

he decided to remain out, and the officer cancelled his ILR and gave him a 6 month visitor entry visa

[Flash]

Well, the reasons were personal + medical, however, the first 9 months were on a company posting, but they still rejected it !! If the 9 months were considered in grace, I would be still within the 2 years limit. I was confident that they would consider it and the visa would be granted, but was not. Atleast I have an option to appeal and I will.

Just wondering, is the option to appeal given to everybody by rule, or is it only in some cases ? If it is the later, it would atleast indicate that the ECO considers my application in benefit of doubt and would pass on the reponsibility of judgement to a higher power...? Then atleast I have some hope of the appeal to be in my favour...??

sywahu, why do you say it will be hard to get ILR in the future ? Would I be looked down upon as I had an ILR and did not maintain it ?

roger, when you say you had to go through the whole process again, do you mean the full requirements (4 years WP Employment in my case) again ?
Shouldn't they rather relax some requirements if you already have had an ILR in the past, as if so to say that you are more trust-worthy for UK and Immigration, and in better status with your past association ?
When they cancel an ILR, what do they exactly do ?
Don't know about the stamp on entry, but if I remember correctly, I read on this forum somewhere that the movement is tracked using the Embarkment Card and maintained in a database.

Appreciate the discussion guys...

[Kayalami]

Flash,

It might be worth you reviewing a similar situation.

[John]

Flash, can I ask, what sort of evidence did you supply in support of your Returning Resident application? Did you take account of the guidance in Guidance - Returning residents (INF8), in particular the section headed "What supporting documents should I include with my application?".

Have they supplied you with written reason(s) for rejection? If so, what do they say?

[Flash]

Thank you all for reading and responding...

Following are the reasons of rejection:
1. Away for more than 2 years
2. Only 5 days as a Permanent Resident
3. Absence has been of choice rather than circumstance
4. Do not own a property in the UK
5. I am Single
6. No close Family ties in the UK

I did go through the guidelines and submitted a long list of documents, infact similar set as if I am applying for a fresh ILR. Also the copy of the original company letter, which mentioned that I was to be posted in India and it's date, just 5 days after my ILR Appln. I was still issued the ILR then. Company relieving letter. Proof of personal reasons, which was actually a long religious pilgrimage. Though it may look contrary, it was really unavoidable due to personal reasons. A medical certificate of major dental surgeries, stating the fact that it was ongoing at the time of 2 years expiry date. I could not go away half way through the treatment (27 days extra). Also the fact that it's not covered by NHS and would have been very expensive in the UK. The treatment too was quite serious and elaborate: 6 surgeries in 3.5 months, though I started quite early, it over-lapped the deadline. There are additional 57 days after treatment while I was allowing job application process to complete to the companies I already applied to, parallely during my treatment. But at that time, was already beyond the 2 years deadline anyways. Just thought a job in hand would strengthen the application. Offers but did not go ahead to convert to appointments due to my vague visa status, hence not employed currently and applied as same. Did not submit any communication from companies, don't know if that would be legally correct without company's permission, and it was all on email, not letter-head. However, I am financially strong, but, neither money nor job were among the reasons for rejection.

As with ILR applications, where breaks of 3 months are considered in favour of the applicant with appropriate reasons, e.g. company / project requirements, I was really banking on the 9 months company posting for my Return to be allowed as well...and the fact that of the past 80 (6y8m) months of my life, from when I first landed in the UK, I have been associated with UK for 62 (5y2m) months, (77.5%)... thought it would be looked upon in my favour... One more thought was that I was not applying after many months or years from 2 years expiry, but 84 days !...

Though I will be making an appeal, don't know what will be my chances. Please do let me know if you have any suggestions, ideas, comments...

[John]

Flash, probably not what you want to hear, but I have to say that based upon those grounds of rejection I think you will struggle to win any appeal. Great shame you did not / could not come back to the UK three months earlier.

But those are only my thoughts ... other comments especially welcome.

[vin123]

Flash,

It’s quite a saddening thing that those 84 days happened to be an ILR killer.
I think it’s the lack of demonstration of social 'tie-up' plus your 'single' status in the UK is what let you down.

When you appeal, it might be worth putting the case forward thru an experienced immigration lawyer based in the UK who has handled situations like yours before.
I still think you haven't lost the case 100% yet, but it needs some great amount of groundwork and brains of a smart lawyer to make it a situation favourable to you when you appeal. So worth spending the money in £££ (than in Rs!!) if it pays off later!

Goodluck.

[rogerroger]

flash

i had to go through the 4 years of work visa .... and then apply for ILR once more

[Flash]

It's like how sywahu wrote - how on earth did a long time like 2 years just pass-by? Sometimes, so many things keep on coming up together one by one and you keep on adjusting your priorities, and then suddenly there's nothing, all blank !

rogerroger, I came upon one of your old posts reg. your brother's ILR. may be it's already resolved..., just thought, since close family ties were one of the reasons of my rejections, you having ILR may help your brother in his appln, saying he has close family with you in the UK with ILR....

Any ideas how much will a lawyer cost in GBP and even some references ? Also, I am already 9 days out of 28 days appeal time limit...was discussing, looking up the internet for clues and found this wonderful forum, was forming my own appeal arguments, and preparing the set, which I am almost ready with...

As far as this ILR going towards naturalisation is concerned...of the 15 months allowed in past 5 years, even counting out the 9 months of company project, I am still 18 months out. Out of the 18 months, over 3 months are relating to dental treatment. Only then would it be less than 15 months, else, I guess, I will have to wait another 5 years for naturalisation anyways, whether I live on ILR or WP and again ILR. But yes, with a continuing ILR it is a surety. Who knows how the rules will change in the future, already I read a post about a bill proposed to make 5 years of stay on WP rather than 4 for ILR, though not a law yet (sywahu, I guess this is what you were referring to, that ILR in the future would become more difficult to get, changing policies...).

[John]

I suspect the "killer" here is that the OP got his ILR and then, for however good a reason I think does not matter, then goes abroad just five days later. That is, it hardly shows that the person was really settled in the UK. On the contrary it shows that as soon as ILR was obtained he was off!

Accordingly I think that it might be difficult to win any appeal.

[Flash]

John, a valid interpretation of 5 days stay as PR, however, I am going to argue for the appeal that, I left after 5 days as I was posted in India, and worked for a project associated with UK (infact, a government agency) by my company. This was also stated in the company letter issued for ILR application and was not hidden in anyways. I did not leave UK for personal reasons or by personal choice. So even if I was away from UK, it was still relating to a work associated with UK and not on a personal agenda. I will also stress on the fact that out of past 80 months (almost 7 yrs), I have been associated with UK continuously for 62 (5y 2m), either living in the UK or out of it. The 18 months (1y 6m) are still within the 2 years absence... Do you think this will be considered ?

On a counter note, even if they consider it, after leaving the company, I guess it is expected that I should have returned back to the UK... my explanation relates to my passport renewal which was about to expire and the religious pilgrimage (which evolved in length later). Though I returned back in time from pilgrimage and passport renewed before 9 days of deadline, but was under dental treatment which I couldn't leave mid-way with teeth half treated and in pain (literally I was, multiple surgeries, quite serious and painful)...

[Flash]

Just an update,

I got a reply from the British visa enquiries office to one of my questions,

Q: What happens to the ILR in a scenario where the appeal is successful, but I have gone back to the UK during the appeal process on a WP ?

A: It is entirely speculative whether you would be given a Work Permit visa. If you win your appeal, then you would have the right to indefinite leave to remain re-instated.

Wonder if the first sentence is just to be politically correct and be on the safe side not conveying any committment on their part, or means something serious...

[Kayalami]

Note that where leave to enter is granted as per:

1. The relevant Immigration Acts

2. Which under procedural rules (implemented back in 2002 if memory serves me correctly) is to include any Entry Clearance granted at an overseas British Dipomatic post

any pending appeal is henceforth dismissed thus making the subject of ILR resumption moot i.e. hold on any EC application until your appeal is considered or re-consider re-entry into the UK on say a WP EC and start from stage 1 on way to eventual ILR.

The comments by the ECO effectively respond in a non commital way to an application in relation to the WP category.

[Flash]

Thanks Kayalami,

I conveyed my availability to an offer on the basis of the visa office reply. From your reply it seems I better not.

I am however, also getting offers to other countries, viz. Netherlands, Singapore, Malaysia. As the appeal process would take 2 months, would it be okay to take up a short assignment and travel to any of the above countries, esp. if it's a EU country ? or it is not advisable to travel anywhere at all during this period ? I know, there is no connection whatsoever, but being in the middle of this process and 'thinking too much', just thought I will think aloud to be safe if I am missing something...

[Kayalami]

Non UK travel o.k.

[Flash]

Some confusion about appeal papers,

As an answer to one of my queries, AIT informed me that I have to submit attested photocopies and not originals of documents for appeal. I asked them to clarify whether they should be self-attested or attested by some recognised organisation. As I did not receive any replies for a few days, I sent the query again. I later received replies to both the emails, one saying that I should not self-attest but get attested by some recognised organisations (did not list them in the email saying there were too many to list), and carry the originals at the time of the hearing. Another saying that I should self-attest with a date and send them.

I think the first reply assumed me to be present in the UK (which I am not), and suspect hence the differing replies. I re-queried them but haven't received any replies. Are the photocopies of papers to be self-attested and sent ?

Additionally,

On the Appeal form AIT-2,
Section 1
A. Post reference number - Which number is this ?

Do I have to submit the Notice of Immigration Decision (Refusal of Entry Clearance) in Original or a Photocopy ?

Thanks in advance.

[Flash]

Update from AIT,

They have confirmed that I should send them self-attested and dated photocopies. They have also replied about the Notice of Immigration Decision to be submitted in photocopy, but have referred it as Notice of Hearing ?? in the reply. Reg. my query about Post reference number on the AIT-2 form, they have declined to answer saying they can't answer any form related queries. Hoping someone on the forum has some ideas...

[Kayalami]

1. Post Reference number (sec 1A Form AIT-2)

Check your notice of refusal. There should be a reference number for your application. It should match that on the BHC ‘application received’ rectangle stamped on your ppt which I presume has a line through its mid section denoting a refusal.

2. Docs to be sent.

a) Notice of refusal = the doc the ECO gave you saying your application has been refused as per para x of immigration rules and you have a right of appeal etc. The notice of hearing comes after the Tribunal set up a hearing date i.e. the AIT responder appears to be mixing the 2 notices up.

b) Documentation in support of your appeal e.g. medical letters, employment letters etc. Do not send originals. Send in copies. Where any not in English then get them translated and certified/attested by someone approved by the BHC in Bombay. Where docs in English then there is no need to certify/attest but if funding not an issue I would recommend you get them certified/attested as true copies by a notary/ approved person as per Indian law - again BHC should have a list of those they accept. There is no need to certify the ECO’s Notice of Refusal since it’s a UK government issued document whose authenticity can be readily verified. but if its all part of an attestation in bulk deal then no probs going ahead.

Hope that helps

[Flash]

Thank you for clarifying the doubts Kayalami.