ILR Application - Can discretion be used in this case?

[Lucku4]

Hi Folks,

I will be completing 10yrs mid september so technically, I should be able to apply for ILR! I am currently on a work permit visa which expires in 2012, and have been on this since August 2007

Anyway so my 10yrs in the UK has been continuous and trouble free apart from one incident when I was renewing my student visa.

So this is the timeline of events:

-my student visa expired 30th April. I then applied for the 1yr SEGS permit
-Combination of bank holiday and weekend meant that the home office did not receive my application till the 2nd of may.
-I have a 19th May Home Office stamp in my passport but can't recall the date I received my passport back but must have been a week or two after the 19th of May
-I got the letter back with my passport to say that my application had been refused because the Home Office received my passport on the 2nd of May and therefore, had to leave the country
-I got the earliest flight I could back to my country on the 5th of June
-I then applied again for the SEGS from my country and got it. The Segs permit was issued on 22nd of June
-I arrived back in the UK on the 13th of July


This has been the only hiccup during my 10yrs here so just want to know if it is worth spending the £2k to apply for ILR or not


Thanks guys

[geriatrix]

If an applicant has a single short gap in lawful residence through making one single previous application out of time by a few days (not usually more than 10 calendar days out of time), caseworkers should use discretion granting ILR, so long as the application meets all the other requirements.

regards

[Lucku4]

Thanks so how about the length of time I spent outside the UK seeing I got back into the UK in July

[geriatrix]

Reading the document will help. Explains (almost) everything!


regards

[Lucku4]

Appreciate the reply - just reading the document now!

This section is a bit worrying:

Continuous residence is defined in Paragraph 276A(a) of the immigration rules:
Continuous residence means residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return.

and this:

2.2.3 Events that break continuous residence
Paragraph 276A(a)(i) to (v) lists all circumstances in which continuous residence would be deemed to be broken. This would be instances where:
•
the applicant is absent from the UK for a period of more than 6 months at any one time or is absent for a shorter period but does not have valid leave to enter or remain on their departure from and return to the UK;
•
the applicant has been removed or deported from the UK or has left the UK following the refusal of leave to enter or remain;

On my approx 6week absent, I did not have any leave to remain

[geriatrix]

Sorry, concentrated more on the less important factor (rather irrelevant) and more on the less important one!

The problem in your case isn't that you were absent from UK for 6 weeks or that you later entered on a SEGS leave to enter, but that you left UK after your student visa had expired.

Do you have any proof that you made the in-country SEGS application before the expiry of your student visa? Like proof of posting? This may help prove that the refusal of SEGS leave to remain was wrong and you had to leave UK because of UKBA's mistake!

Without it, difficult IMHO.


regards

[Lucku4]

Will the refusal letter stating that the SEGS application was received on the 2nd of May help at all? I'm not sure if I still have the proof of postage but I'll def check

[geriatrix]

The letter from UKBA confirms that it was received by UKBA on 2nd May. AIUI, when an application is sent by post the date of application is the date of posting and not the date on which it is received by UKBA. So, UKBA receiving it after expiry of your current leave is not an indication that you applied out-of-time.

It is only when the application is sent by courier that the date of receipt is taken as the date of application.

Which method did you adopt?


regards

[Lucku4]

Most likely sent using the special delivery service of the post office. For them to receive it on the 2nd means it was sent on the 28th of April.
29th - Sat
30th - Sun
1st - May Day Bank Holiday
Received on the 2nd

I also need clarification on this part:

In addition, continuous residence will not be considered to have been broken where a person is granted a short period of leave following the end of a period of exemption, then departs from the UK and subsequently returns with a fresh grant of leave, so long as all the other criteria of paragraph 276A(a) are met.

[geriatrix]

A SAR may help. Request specifically for record of / evidence of "date of SEGS application". See also immigration rule 34G

The quoted paragraph doesn't apply unless you were in the UK at any time in the past under "immigration exempt" category.


regards