Michelle0507 wrote:Dear honoured members,
I came to the as Tier 4 a student on 13.October 2009. My visa expiry date was 30.May.2011. Before my visa expiry date, on 26 May 2011, I left the UK. I applied for a new student visa on 18. July 2011. Finally received my visa on 5 October 2011. After receiving my visa, I came to the UK on 7 October 2011.
Last a couple of days, I went to see some immigration solicitors (3) about my ILR. Two of them saying that my 10 years-long residence starts from 7 October 2011, not 13 October 2009.
They point out that I had to apply for a new visa in my country within 28 days after my visa expires, which means that I had to apply for a visa before 28 June 2011. As a result of this, my long residence starts from 7 October 2011. On the other hand, one of the solicitors said to me, my long residence starts from 13 October 2009. Could you please help me out? I am very confused about my situation. When I actually read the guidance, it seems it can start from October 2009.
Please note, I had a combination of visas since 2009 (tier 4 student and tier 4 student dependent)
Time spent outside the UK
Gaps in lawful residence
You may grant the application if an applicant:
• has short gaps in lawful residence through making previous applications out of
time by no more than 28 calendar days where those gaps end before 24
November 2016
• has short gaps in lawful residence on or after 24 November 2016 but leave was
granted in accordance with paragraph 39E of the Immigration Rules
• meets all the other requirements for lawful residence
The period of overstaying is calculated from the latest of the:
• end of the last period of leave to enter or remain granted (including where an
in-time application was submitted but the application was considered invalid)
• end of any extension of leave under sections 3C or 3D of the Immigration Act
1971
• the point that a migrant is deemed to have received a written notice of invalidity,
in relation to an in-time application for further leave to remain where that
application was deemed invalid due to the failure by the applicant to provide
biometrics
Periods of overstaying
When refusing an application on the grounds it was made by an applicant who had
overstayed by more than 28 days before 24 November 2016, you must consider any
evidence of exceptional circumstances which prevented the applicant from applying
within the first 28 days of overstaying.
The threshold for what constitutes ‘exceptional circumstances’ is high, but could
include delays resulting from unexpected or unforeseeable causes. For example:
• serious illness which meant the applicant or their representative was not able to
submit the application in time – this must be supported by appropriate medical
documentation
• travel or postal delays which meant the applicant or their representative was
not able to submit the application in time
• inability to provide necessary documents – this would only apply in exceptional
or unavoidable circumstances beyond the applicant’s control, for example:
o it is the fault of the Home Office because it lost or delayed returning travel
documents
Page 16 of 43 Published for Home Office staff on 03 April 2017
o there is a delay because the applicant cannot replace their documents
quickly because of theft, fire or flood – the applicant must send evidence of
the date of loss and the date replacement documents were sought
Any decision to exercise discretion and not refuse the application on these grounds
must be authorised by a senior caseworker at senior executive officer (SEO) grade
or above.
When granting leave in these circumstances, the applicant must be granted leave
outside the rules for the same duration and conditions that would have applied had
they been granted leave under the rules.
Time spent outside the UK
A person who is outside the UK will not be in breach of the Immigration Rules.
You can overlook a period of unlawful residence if the applicant leaves the UK after
their valid leave has expired but before 24 November 2016, and:
• applies for entry clearance within 28 days of their original leave expiring
• returns to the UK with valid leave within 6 months of their original departure
Examples of gaps in lawful residence
The examples below show some instances when it may or may not be appropriate to
grant the application. This is not a complete list and you must judge each application
on the information it contains and discuss this with a senior caseworker.
Example 1
An applicant has a single gap in their lawful residence due to submitting an
application 17 days out of time. All other applications have been submitted in time,
throughout the 10 years period.
Question Would you grant the application in this case?
Answer Grant the application as the rules allow for a period of overstaying
of 28 days or less when that period ends before 24 November
2016.
Example 2
An applicant has 3 gaps in their lawful residence due to submitting 3 separate
applications out of time. These were 9, 17 and 24 days out of time.
Question Would you grant the application in this case?
Answer Yes. Grant the application as the rules allow for periods of
overstaying of 28 days or less when that period ends before 24
November 2016.
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Example 3
An applicant has a single gap in their lawful residence due to submitting an
application 34 days out of time. The applicant has provided a letter from their
consultant stating they were hospitalised during this period.
Question Would you be right to use discretion in this case?
Answer Yes. Even though the application was more than 28 days out of
time, the absence occurred before 24 November 2016 and the
applicant has provided sufficient evidence to demonstrate that
there were exceptional reasons for the late application and has
tried to maintain lawful residence throughout the rest of the 10 year
period. You must confirm this with your senior executive office
(SEO) senior caseworker.
Example 4
An applicant’s leave expired on 10 July 2012 but they only departed the UK on the 1
August 2012. They submitted an application for entry clearance on the 5 August
2012. When returning to the UK on the 27 October 2012 they submitted a long
residence application.
Question Would you grant the application in this case?
Answer Yes. Grant the application as the rules allow for periods of
overstaying of 28 days or less when that period ends before 24
November 2016. This applicant submitted their application for
entry clearance less than 28 days after their original grant of leave
had expired and returned to the UK within 6 months of last leaving.
Example 5
An applicant’s leave expired on 1 September 2013 and they departed the UK on 1
October 2013. They submitted an application for entry clearance within 11 days of
departing and re-entered on 2 December 2013.
Question Would you grant the application in this case?
Answer No. They failed to depart the UK within 28 days of their original
grant of leave expiring and so had a period of more than 28 days
overstaying.
Related content
Contents
Page 18 of 43 Published for Home Office staff on 03 April 2017
Out of time applications
This page tells you about ‘out-of-time’ applications submitted for 10 years long
residence applications.
An applicant applying for an extension of stay or indefinite leave to remain (ILR) on
the basis of long residence must not be in breach of the Immigration Rules.
Applications made before 24 November 2016
Where the application was made before 24 November 2016 a period of overstaying
of 28 days or less on the date of application will be disregarded.
The 28 day period of overstaying is calculated from the latest of the:
• end of the last period of leave to enter or remain granted(including where an intime
application was submitted but the application was considered invalid)
• end of any extension of leave under sections 3C or 3D of the Immigration Act
1971
• the point that a migrant is deemed to have received a written notice of invalidity,
in relation to an in-time application for further leave to remain where that
application was deemed invalid due to the failure by the applicant to provide
biometrics
When refusing an application on the grounds it was made by an applicant who has
overstayed by more than 28 days, you must consider any evidence of exceptional
circumstances which prevented the applicant from applying within the first 28 days of
overstaying.
The threshold for what constitutes ‘exceptional circumstances’ is high, but could
include delays resulting from unexpected or unforeseeable causes. For example:
• serious illness which meant the applicant or their representative was not able to
submit the application in time – this must be supported by appropriate medical
documentation
• travel or postal delays which meant the applicant or their representative was
not able to submit the application in time
• inability to provide necessary documents – this would only apply in exceptional
or unavoidable circumstances beyond the applicant’s control, for example:
o it is the fault of the Home Office because it lost or delayed returning travel
documents
o there is a delay because the applicant cannot replace their documents
quickly because of theft, fire or flood – the applicant must send evidence of
the date of loss and the date replacement documents were sought
Any decision to exercise discretion and not refuse the application on these grounds
must be authorised by a senior caseworker at senior executive officer (SEO) grade
or above. When granting leave in these circumstances, the applicant must be
Page 19 of 43 Published for Home Office staff on 03 April 2017
granted leave outside the rules for the same duration and conditions that would have
applied had they been granted leave under the rules.
so the law is u have to submit ur application within 28 days of ur visa expire and u hv to come back inside the country within 180 days of the left uk. simple is that. so if u leave the country within 28 days of ur visa expire or not(!) and make a fresh application from ur country with in that time and grant a visa and come back within 180 days from the day u left uk. ur continues residence will be ok but if u left country but doesn't make any fresh application with in 28 days of ur visa expire , ur continues residence will not be count.
in ur case u left country on time which is good but not mandatory but u make a fresh application after 28 days of ur visa expire. so ur 10 years start from second time u back in uk not first time.
i think i explain what answer u looking for.
thnx
