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Buachaill, Barrister
Category: Law
Satisfied Customers: 10944
Experience:  Barrister 17 years experience
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There i need to apply based on lawful Long

Customer Question

Hi there i need to apply for ILR based on lawful Long residence(10 years) . There has been a gap but iam not sure if it is going to be considered as a break in the lawful residence or not . please review the dates below 30 April 2009 --------> expiry date of student leave 23 April 2009 -------->tier 4 application submitted , valid in time application 6 August 2009 --------->Application refused due to invalid visa letter from t4 sponsor 17 August 2009 ------------> Appeal submitted to tribunal , paper based appeal 30 September 2009 -------->Appeal was dismissed , no hearing 14 October 2009---------->notice of determination received ,, late receipt due to postal strike 26 October 2009 ---------->new application submitted,,out of time application 21 January 2010------->Approval of the fresh application .. This is the summary of the Gap please note that i had submitted the fresh application within the 28 days after the dismissal of the appeal . Please note i entered the UK on September 2005 and my residence been a mix of student visas , spouse visa , Access to child visa which is two and half years leave .Currently i have a leave till March 2016

I also have a contact order to see my kids

my question is if i apply now for ILR based on long lawful residence is my application will be approved iam just concern about the gap mentioned above?

Submitted: 2 years ago.
Category: Law
Expert:  Nicola-mod replied 2 years ago.
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Customer: replied 2 years ago.

yes Iam waiting for an answer . I paid for the service and it shouldn`t take that long

Expert:  Nicola-mod replied 2 years ago.
We will continue to look for a Professional to assist you.
Thank you for your patience,
Expert:  Buachaill replied 2 years ago.
1. I regret to say that in order to qualify for Indefinite Leave to Remain based on 10 years residence in the UK, one of the requirements is that you must not have been in breach of immigration laws except for any period of overstaying of 28 days or less. Here, you overstayed for a period of longer than 28 days so there is a break in the 10 year period. So your period in the UK only begins from 21st January 2010. So currently, you only have five years continuous residence in the UK upon which to base your application. This "break" is fatal to an ILR application based on 10 years residence.
Customer: replied 2 years ago.

I did submit the application within the 28 days after the dismissal of the appeal .so how there is a break ?

Expert:  Buachaill replied 2 years ago.
2. I regret to say that the law is that the submission of an application within the 28 day period of overstaying does not mean that the migrant applicant's previous leave is either re-instated or extended. Therefore applicants without valid leave at the point they submit their application continue to be an overstayer throughout the period their application is pending. So 28 days after the expiry of your student leave on 30 April, 2009, you became an overstayer - on 28 May, 2009. You remained an overstayer until 21st January, 2010. So there were 9 months, almost 10 months when you were an overstayer and did not have a valid visa. Entering an appeal does not provide you with a get-out from these rules, I regret to say.
Customer: replied 2 years ago.

I would like to thank you for answering my questions. so what do you advice now i have a leave till March if i apply now for ILR Long residence , Do you think the application will be rejected because of this Gap? I really do feel unjust . can they exercise a compassionate circumstances and approve the application ? Iam really confused because some immigration solicitors say there shouldn`t be a problem of this gap and other have different opinions. can you please tell me what shall i do ?

Expert:  Buachaill replied 2 years ago.
3. It costs money to make an application for ILR. So it really depends on whether you don't mind if your application gets rejected or not. The UK Border Agency don't really do compassionate grounds, I regret to say. The current political rhetoric from David Cameron & the conservative party is not in favour of immigrants. My legal opinion is that you are not likely to get ILR because you have a nine month period when you didn't have a valid visa. However, there is no harm trying if you wish to do so. Ultimately, it is up to you to make the judgment call on that.