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UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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Dear *****I hope that you are well.I would be obliged if

Dear ***** I hope that... Show More

Dear ***** I hope that you are well. I would be obliged if you can please provide your professional opinion to the three part question mentioned below. 1) My first question is related to the law regarding Continuous Residence for the purposes of 10 Years Long Residence ILR application. I will be making my ILR application in September 2015. I had a student Entry Clearance valid from September 2005 until 31 October 2008. An in-country PSW application was made before the expiry of Entry Clearance (within time). The application was returned by the UKBA as invalid on 18 November 2008 because I omitted to sign the application form. The application fee was also returned. Instead of a PSW application (due to the lack of maintenance funds) a new student visa application was submitted on 01 December 2008. A Student Leave to Remain was granted on 14 February 2009. My question is that would the gap from 18th November to 01 December 2008 (although less than 28 days) be considered a gap in the Continuous Residence? If yes, can the Home Office exercise their discretion to overlook such a gap and grant ILR? Also am I right in thinking that I was covered by section 3C of the Immigration Act 1971 from 31st October till 18th November 2008 or this section will apply as the application was invalid? 2) My second question is rather a quick one. I think that my wife (who is on my Tier 1 General Visa) will have to apply on FLR (M) form for a 2.5 years leave to remain with me in September and that we will also have to comply with usual £18,600 financial and CEFR A1 English Language requirement. Kindly confirm? 3) The last question is that my baby is due in April. What sort of application should we make for the baby? Can we wait until I am granted ILR and then register the baby directly as a British Citizen or we will have to/should make an application for baby with my ILR and my wife’s FLR(M). I look forward to hearing from you with your kind comments. Kind regards ***** *****

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Dear Aftab,
I would respond to your queries as follows:
1) the gap in 2008 is unlikely to be disregarded as you submitted a new student visa application after submitting an invalid PSW application and as your student visa application was made out of time in Dec 2008, you would not have been covered by S.3C of the Immigration Act 1971 as amended. Please note that there was also no 28 days grace period for overstaying in those days. In my opinion, you would not qualify for ILR under the long residence rules due to this gap in 2008.
2) yes, if you obtain ILR.
3) if your baby is born in the UK and you are granted ILR, you may apply for the baby to be registered as British, no need to apply for any leave to remain in the UK.
Hope this helps
Customer reply replied 3 years ago.

Thank you for coming back to me promptly.

You reckon I will be given a right of appeal if the ILR is reused on the basis of Long Residence?

On a separate note, I may have to make an ILR application on the basis of Tier 1 General in January 2016. Would i need to show the the requisite level of income for the last year of Tier 1 (General) or for the the whole five years period when I apply for ILR?

I look forward to hearing from you.

Kind regards


Yes, you should be given the right of appeal.

Points are awarded for earnings in a period of 12 consecutve months during the 15 months preceding the appliction, see page 39 of this document:

All the best, ***** ***** feedback
Customer reply replied 3 years ago.

Once again thank you for your speedy reply.

Just one last question please, if the baby is born in April 2015 and I apply for ILR in January 2016, can the baby stay without any immigration status until January 2016? Would this not have an adverse affect on baby's application for registration as British Citizen?

I mean, can the Home Office not come up with this argument that why didn't I make an application for leave to remain for the baby since April 2014?

I will leave feedback after this reply.

Many thanks.

No, it WILL not have any impact on the baby's entitlement for registration as a British Citizen. Note the word entitlement and not discretionary.

All the best
Customer reply replied 3 years ago.

Please can you tell me what sort of visa my wife will apply and on what form, when I apply for ILR on the basis of Tier 1 General? Can she switch to Spouse of a settled person?

Please open a new question with any further queries.