Help 10 Year ILR Refusal

Jon336 · Post by **Jon336** » Fri Jul 20, 2012 8:45 pm

derlin you are implying that I had to renew my leave before it expired on 30th June 2005? even if I was out of the country by the time, can you give me any quotation by the letter of law where this is referenced?. Section C as far as I am concerned deals with application made inside the country.

I will be happy to recieve your reply

sufferhead · Post by **sufferhead** » Fri Jul 20, 2012 9:00 pm

Jon336 wrote:derlin, I assumed that since I had limited leave to remain when I left the country the was no way I could have made an out of time application outside the country. Out of time applications, I thought apply to those the have been made inside the country.

See below

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 below;
To benefit from this, an applicant must have valid leave on the date that they departed the UK and valid leave on the date that they returned. Please note that this does not have to be the same grant of leave on departure and return (see Example 2). Nor is it necessary for the leave to be in the same category (i.e. an applicant can depart the UK with leave as a student and return with leave as a work permit holder). As long as the applicant has valid leave on both the date of departure and the date they return, they will not have broken continuous residence.

Of course section C doesn't apply here.
Are you saying that once I made an application outside the country and the denied then I broke my continous residence?
Clarify please

Am so sorry about your case.These are what i think you can do request for a full Reconsideration or Judicial Review through a very good Immigration Barrister .Although am not an immigration expert neither do i know much about the rules of 10 years route to ILR but am very touched about this decision, i will recommend one very good high profile immigration barrister to you. Since the forum is not for advertising, i will only give you his office number and you will do the rest. Believe me, whatever advice you get from him you cant get any better elsewhere . He based in the city in London just few houses away from Royal Court Of Justice and his price is very cheap. 0203 440 5822.
Good Luck.

Jon336 · Post by **Jon336** » Fri Jul 20, 2012 10:29 pm

Thanks Sufferhead, I will take note of the number. Problem is tha I live in the Scottish capital- Edinburgh so I am 500 miles away but if it means traveling I will do it- though I am really exhausted. Just tired of dealing with UKBA.
Stay safe and be happy

derlin · Post by **derlin** » Fri Jul 20, 2012 11:07 pm

An out-of-time application is one that is made after existing visa has expired regardless of the applicant's location at the time of visa expiration. An applicant can apply for visa extension or a new visa category either in the UK or outside the UK.

Incidentally, the term "continuous lawful" means the applicant holds/has held legal residence throughout a ten years period expressed by proof of a valid visa or intention of obtaining one. Sadly, the only metric of expression of maintaining continuous lawful residence is to apply before visa expires. Unfortunately, that is the basis your ILR application was denied.

I'm not suggesting you denied you broke your continuous lawful residence. But, you broke your continuous lawful residence by applying for visa extension after your existing leave expired regardless whether you were in the UK or outside the UK. The law doesn't differentiate whether continuous lawful residence is broken outside or inside the UK.

Unless, you are suggesting out-of-time-application rule is irrelevant to applications made outside the UK.

Jon336 · Post by **Jon336** » Fri Jul 20, 2012 11:14 pm

What do you think about this example from the UKBA guidelines regarding ILR?

Example 1
A person has leave in the UK that expires on 15 September 2008. The person departs the UK before their leave expired on 10 September 2008. Whilst the person is abroad, they obtain fresh entry clearance and re-enter on the 30 October 2008.
Question
Has continuous lawful residence been broken?
Answer
No, the person was abroad while they had a gap in leave, so they have not broken their continuous lawful residence.
If the person had departed the UK after their leave expired, they would have spent time in the UK without lawful leave, and continuous lawful residence would be broken.

pankaj.kumar · Post by **pankaj.kumar** » Sat Jul 21, 2012 12:26 am

Hi,
I am replying basing on the information you have provided. My understanding on this issue is slightly different. Your 10 year clock stopped on the day your visa was refused outside UK, which is, according to the information you have given on 20 Sept 2005. So, you made a fresh out of time application as a student on 26 Sept 2005 and were subsequently granted leave.

The fact that you made an application after a REFUSAL, the period from the date of expiry of the original leave which is 30th June 2005 and to the new leave granted that is 26 Sept 2005 becomes invalid. Your continuous lawful residence had been broken.

If you have appealed the decision made on 20 Sept 2005 and won, then, i guess, you would have not broken your continuous lawful stay.But if you have made a fresh application on 26 Sept 2005 and were granted leave and re-entered UK, then your 10 year clock started on that day.

So, technically you have not met the requirement of para 276B(i)a which is The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

You have a chance if you are able to prove that the 20 Sept 2005 decision made against your out of time application, in itself was wrong. Bear in mind though, you are trying to challenge a decision made against you roughly seven years ago.

This is however my understanding based on little information you have provided. Take legal opinion. It might cost you few hundred pounds, but give it a try.

My Best wishes.

Jon336 · Post by **Jon336** » Sat Jul 21, 2012 12:55 am

Thanks Kumar. I think you explanation makes more sense; though when the decision was made the period referred to was from 30th June to 26th Sept.

For me it doesn't make sense at all since you can't make an out of time application out of the country

I suspect that the 20th Sept refusal may be an issue here but I will seek legal advice to get to the bottom of it. The guidelines do not mention any refusals abroad or at least I haven't come across any thing. If you find it please refer me to the doc. I wouldn't like to spend money on a lost cause. I also have other options since the decision doesn't affect my current stay in the country.

Fact is that you can't be an over-stayer abroad! And you can't make an out of time application abroad when you left with a valid leave
And for the purpose of long residence the period outside the UK does not affect your continuous lawful residence unless its more tan 6 months remember this is quite different with people applying after 5 years where their activities abroad for a specific period of time may become an issue.

Ged · Post by **Ged** » Sat Jul 21, 2012 1:10 am

Dear Jon336,

I am really sorry that your application was refused due to some lame reason.

I know we are all making some guess work here and it is being counter-productive. Perhaps you will know more when you talk with an experienced solicitor who knows what he is talking about.

However, from what I see on your messages so far, I completely agree with your logic. Based on the information provided by the UKBA, and the examples they provided, you seem to be perfectly right to think that your 10 years legal stay trail was not broken. This to me seems like a no-brainer. The references you made are all real UKBA documentation. The people who argue against your logic appear to lack any real directly related examples or references to any relevant written policy documentation that matches to your case.

At least you still have leave to remain here and this disgrace did not threaten your job or stay here. Please be calm and talk with a professional who makes sense.

Best wishes.

wpilr_nov12 · Post by **wpilr_nov12** » Sat Jul 21, 2012 1:44 am

Jon336, I am sure you have already thought of this before many times , but would you qualify for a 5 year route in 2013? If so , maybe just cut your losses and aim for that one?

Jon336 · Post by **Jon336** » Sat Jul 21, 2012 3:47 am

It seems this is a new legal minefield; we shall find out. I welcome all your opinions. what i didn't want is to waste time and money on this issue again. That's why I wanted to find out whether there are grounds to overturn this decision.

As for applying in a different category, yes that's an option too. But I feel a sudden loss of trust in the system but again maybe I am the one who is ignorant of the law-again we shall find out and I will keep you informed.

The immigration system saps all the energy out of you and if you are not strong enough it could ruin your life. But in the end nobody died so I will move on to the next step; I will let this go if the reasons given for my refusal are valid otherwise I will seek the truth.

Jon336 · Post by **Jon336** » Sat Jul 21, 2012 3:54 am

Ged wrote:Dear Jon336,

I am really sorry that your application was refused due to some lame reason.

I know we are all making some guess work here and it is being counter-productive. Perhaps you will know more when you talk with an experienced solicitor who knows what he is talking about.

However, from what I see on your messages so far, I completely agree with your logic. Based on the information provided by the UKBA, and the examples they provided, you seem to be perfectly right to think that your 10 years legal stay trail was not broken. This to me seems like a no-brainer. The references you made are all real UKBA documentation. The people who argue against your logic appear to lack any real directly related examples or references to any relevant written policy documentation that matches to your case.

At least you still have leave to remain here and this disgrace did not threaten your job or stay here. Please be calm and talk with a professional who makes sense.

Best wishes.

Nice to know that there's someone from Edinburgh I am also just around Edinburgh. Do you know any good immigration lawyer?

Post by **vinny** » Sat Jul 21, 2012 7:31 am

Agree with Jon336. I think that it's impossible for a person to be "out-of-time" when outside the UK.

7.3 wrote:A person who is outside the United Kingdom will necessarily be free, at that time, from any restrictions under the immigration laws on the period for which s/he may remain in the United Kingdom.

See also Any good law firm recommendation?

pankaj.kumar · Post by **pankaj.kumar** » Sat Jul 21, 2012 11:38 am

Hi,
If you dont mind , could you give some information for the following two questions please?

1.What were the reasons for leaving the UK in June 2005 ?
2.Why was your visa refused in Sept 2005?

derlin · Post by **derlin** » Sat Jul 21, 2012 12:10 pm

Jon336 wrote:What do you think about this example from the UKBA guidelines regarding ILR?

Example 1
A person has leave in the UK that expires on 15 September 2008. The person departs the UK before their leave expired on 10 September 2008. Whilst the person is abroad, they obtain fresh entry clearance and re-enter on the 30 October 2008.
Question
Has continuous lawful residence been broken?
Answer
No, the person was abroad while they had a gap in leave, so they have not broken their continuous lawful residence.
If the person had departed the UK after their leave expired, they would have spent time in the UK without lawful leave, and continuous lawful residence would be broken.

Jon, based on the aforementioned scenario—ceteris paribus, you ought to have been granted ILR because you left and entered the UK with valid visas. However, the example doesn't tell us whether the individual applied for a new visa before or after 15 September 2008. Others have commented the out-of-time rule is inapplicable to applications made outside the UK based on the above scenario which only carries an implied meaning. If this is true, I wonder why the case worker used the wording "out-of-time" to describe the applications you made on 20 Sept. 2005 and 26 Sept. 2005. This is the crux of your case, and as you seek to overturn the decision, should be the crux of your defense.

Ged · Post by **Ged** » Sat Jul 21, 2012 12:36 pm

The meaning is not implied, as the example refers to "a gap in leave". It says this:
"the person was abroad while they had a gap in leave, so they have not broken their continuous lawful residence. "

So the example clearly indicates that you can have a gap on leave, if you were abroad. This cannot be more than 6 months.

This case looks like the work of an incompetent case worker. The term "out of time" was clearly misused by the caseworker.

Jon336 · Post by **Jon336** » Sat Jul 21, 2012 2:53 pm

Hi Guys,
Thanks very much for all your input. I have looked at all the referenced material provided, I will put it to a good solicitor next week and whatever they tell me I will update you accordingly. Because you've been good to me, I will release the deatils of the outcome whatever way it goes word for word so that people are vigilant enough next time round.

One important lesson to learn is that use the service of a legal expert to look through your docs before posting stuff to UKBA, its the least you could do to avoid all the stress.

Again thanks for all the support I don't feel lonely anymore.

Chemu · Post by **Chemu** » Sun Jul 22, 2012 9:01 pm

Try drummond miller in queen street in edinburgh. I have never used a solicitor myself, but people talk good about them, with regards to immigration matters. They are free, and can take very long I hear.

Good luck

Jon336 · Post by **Jon336** » Sun Jul 22, 2012 10:13 pm

Chemu wrote:Try drummond miller in queen street in edinburgh. I have never used a solicitor myself, but people talk good about them, with regards to immigration matters. They are free, and can take very long I hear.

Good luck

Thanks for the reference chemu. I have already booked an appointment with them this coming Thursday. And yes I will need all the luck;Thanks

Jon336 · Post by **Jon336** » Mon Jul 23, 2012 7:19 pm

Hi guys,
I told you that I will post back and so far the response has been positive.
Going by the contacts given to me here, I managed to contact a few barristers in London. I was asked to email the decision and their reply was that it was a shocking decision.

I was advised that a Judicial review would be the last resort. But they believe that it will not get to that since it was just some officer who made a mistake.

So they will write a letter which I have forgotten in Legal jargon instructing UKBA to change their decision within 14 days or the case will go to High court.

However the cost for this is quite steep and its needed at one go since this is a case that does not seem to take long to be resolved.

I am just wondering whether its possible for them to book an appointment so that I avoid the whole process of posting and waiting. I will ask this tomorrow.

I will keep you informed.

vinaya · Post by **vinaya** » Tue Jul 24, 2012 1:13 pm

Good luck, hope it goes all well for you. Take care

Jon336 · Post by **Jon336** » Fri Jul 27, 2012 1:49 am

I attended an appointment with a solicitor today. Like many of us here he found alot wrong with the decision. So there is cautious optimism that this decision will be changed. He is going to file a letter for reconsideration, He took my passport and he will send this away on Monday

He advised that my biggest mistake was not to highlight all the necessary guidelines as they affected my applications. I should never have assumed that the case workers knew the rules, because they don't know! The initial cost for advice is not that high and its worth it.

Lesson to all applying be very clear and seek legal opinion to avoid an extra cost. I also contacted my MP's office and they have written to UKBA regarding this issue. Hope this will be the last headache with them.
Say a little prayer for me.

Ged · Post by **Ged** » Fri Jul 27, 2012 7:56 am

Good luck. You did not deserve this unnecessary distress.

Jon336 · Post by **Jon336** » Fri Jul 27, 2012 8:12 pm

Okey, this morning I got feedback from my MP's office. The lady sent me an email stating that UKBA have agreed to conduct a review of the decision and they will contact me in 14 days. She says that if they haven't got back to me by 13th Aug then I should contact her and chase this up.

Now I am not well conversant about the process regarding UKBA Reviews.
Anyone with an idea? Do they have to go back into the whole application again or they will only look at assessing the points that I have raised?

I am asking this because I am aware that if its a fresh assessment that may involve Biometrics which may take on more time.

As for my Solicitor, he has advised that we wait and see what comes of UKBA's review; he even raised a possibilty of not having to request for a reconsideration.

Jon336 · Post by **Jon336** » Fri Jul 27, 2012 8:29 pm

Thanks Ged for your support and the contact you gave me has been really helpfull

Ged · Post by **Ged** » Fri Jul 27, 2012 9:01 pm

It was not me who gave you the contact, but I may need that contact myself soon. I am preparing to submit my own 10 year long stay ILR application.

I am assuming that you are talking about Drummond Miller suggested by Chemu. Were they any good? May be I should ask them what their charges are to deal with an application in my name? Would you recommend them?

Best wishes.

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