ILR but possible broken continuous lawful residency?

[Deda]

Hi guys, I would really appreciate some help with this. I was due to apply for my ILR this year (September 2011) under the 10-year rule, but unfortunately I had to leave the country in July 2010 because I changed jobs and my visa (work permit) ran out as I was waiting for my new employers to sort me out with a certificate of sponsorship. My work permit expired on the 12th of July 2010, and I left the country on the 20th of July 2010 (under the false understanding that it was OK, because it was less than 28 days). I came back briefly on a visitor's visa in January 2011 (I didn't want to be away for over 6 months) but only stayed for a couple of weeks. My new tier 2 general visa came through finally and I was back in the country at the end of May 2011.

My question is this; is it worth still trying to apply for ILR, or am I automatically diqualified because I left the country after my original work permit had expired? If it is possible, does the fact that I was away for 10 months or so mean I have to wait another 10 months or so first?

Any advice would be much appreciated, even if it's a 'don't bother'!

[geriatrix]

1. See also Example 1 (page 16).
2. When did you enter UK in January 2011? (date)

[Deda]

1. See also Example 1 (page 16).
2. When did you enter UK in January 2011? (date)

Thanks for that. I entered the UK on the 19th of January 2011 on a visitor's visa and left on the 5th of February 2011.

I did have a look at the ILR guidance and it does look like I have broken continuous residency. I guess I wanted to know if there were any exceptional circumstances in which my application (if I were to make one) would still be considered. If not, does this look like I basically have to start from scratch, with my tier 2 visa and wait 5 years (assuming they don't change the rules by then)?

Thanks.

[geriatrix]

I am not aware of any precedent, so cannot share one / direct you to one.

Another issue that may be of concern for you is that you entered UK on 19-Jan, which is more than 6 months from the date your previous visa expired (12-Jul). IMHO, you should have returned to UK before 12-Jan .. to contest that you did not have an absence >6 months.

[tonypetty]

Hi Deda,

I think u should take a chance and there are strong reason why i think so...You would get your ILR on long residency....How many passports do u have since u entered UK???? Do you have all the letters which came with ur visa stamps????

[genorp]

In my opinion, applying for ILR would be a waste of almost a thousand pounds. You clearly had a break in lawful residency.

Continuous residency is defined as:

• was absent from the UK for six months or less at any one time, and
• had existing leave to enter or remain when they left and when they returned

Breaking it is defined as:

• been absent from the UK for a period of more than six months at any one time, or is absent from the UK for a shorter period but does not have valid leave to enter the UK on their return, or valid leave to remain on their departure from the UK

Your LTR expired 12 July 2010 so when you left the country 8 days later you did so without existing LTR. That part is key: You left the country without valid leave to remain. There is a 10 day discretionary grace of 10 days break if you received new LTR by the 22nd of July whilst in the country, but you didn't. So even if your absence until January were considered to be under 6 months, it began with an exit that was without valid LTR. Your new leave was granted in May 2011 and it seems to me due to the rules that your clock restarted then.

[Deda]

Hi Deda,

I think u should take a chance and there are strong reason why i think so...You would get your ILR on long residency....How many passports do u have since u entered UK???? Do you have all the letters which came with ur visa stamps????

I have two passports since I first came into the UK in 2001. I have all my documents, nothing is missing. Just out of interest, what are your 'strong reasons' for me taking a chance? To be honest I'm leaning towards not bothering because it seems quite clear from the ILR guidance that I broke continuous lawful residency.

[Deda]

In my opinion, applying for ILR would be a waste of almost a thousand pounds. You clearly had a break in lawful residency.

Continuous residency is defined as:

• was absent from the UK for six months or less at any one time, and
• had existing leave to enter or remain when they left and when they returned

Breaking it is defined as:

• been absent from the UK for a period of more than six months at any one time, or is absent from the UK for a shorter period but does not have valid leave to enter the UK on their return, or valid leave to remain on their departure from the UK

Your LTR expired 12 July 2010 so when you left the country 8 days later you did so without existing LTR. That part is key: You left the country without valid leave to remain. There is a 10 day discretionary grace of 10 days break if you received new LTR by the 22nd of July whilst in the country, but you didn't. So even if your absence until January were considered to be under 6 months, it began with an exit that was without valid LTR. Your new leave was granted in May 2011 and it seems to me due to the rules that your clock restarted then.

Thank you very much for your clear and direct answer. I must say I agree with you; I think if we were still able to apply in person I may have had the opportunity to explain my situation clearer to an officer who may have used discretion but as it is by post, I do feel it might just be a waste of money, as you put it.

[geriatrix]

I think u should take a chance and there are strong reason why i think so

Care to explain the (strong) reason? Will help others in similar situation!