Have I been a "continuous" resident of the UK?

October 10, 2013 1:45 AM

Five years ago I immigrated to the UK on the basis of ancestry. I am now applying for Indefinite Leave to Remain. Since my visa status changed partway through this period, I am worried that my residence may not be considered "continuous". Has anyone applied under similar circumstances? Alternatively, can anyone recommend the best forum on which to ask such a question?

My ex-wife and I originally moved here together. Although we both had UK ancestry, we applied jointly with her as the primary. I was given an "Ancestry (Spousal)" visa.

When we split up two years later, I needed a new visa, and got one in my own right. This can't be done from within the UK, so I returned to Canada for 20 days. I kept my full-time job in the UK, stayed in my flat, etc.

According to the Home Office guidance here, leave is to be granted if the applicant has "spent a continuous period of five years in the UK on the basis of UK ancestry". I think I satisfy this, but worry that an immigration officer may interpret the 5-year requirement as applying to a single visa. After all, had my ex and I stayed together, I would not now apply in my own right - she would apply with me as a dependant.

Has anyone else applied for Indefinite Leave to Remain with a residence period that spanned more than one visa? What happened?

Since I realize that this is a very specific question, and there are a million boards devoted to this sort of thing, which ones have been most useful to other people in annoying immigration rules pickles?

posted by Pre-Taped Call In Show to Law & Government (12 answers total)

Generally, 5 years is 5 years, no matter what. But immigration officers can exercise judgement. (For example, in practice it's actually something like 4 years and 10 months for people who just run short.) So you should be fine. But the flipside of this is that people's advice and experience may not be worth much.

When I was getting my Indefinite Leave, I called a lawyer. They didn't even charge me, just gave me advice over the phone. I suggest you do that.
posted by outlier at 2:05 AM on October 10, 2013 [1 favorite]

This UK HomeOffice document entitled "Indefinite leave to remain – calculating continuous period in UK" contains the key quote

"The continuous period is maintained if the applicant leaves the UK without valid leave, but re-enters with new entry clearance within 28 days of their leave expiry date or the applicant leaves the UK with valid leave and re-enters the UK whilst that leave remains valid, provided the absence(s) do not exceed 180 days in a relevant 12 month period."

on page 27.

So it sounds like you should be fine, as you're covered by the first possibility: ie you had valid leave which expired for some reason, so you left the UK, acquired a suitable visa and returned within 28 days.
posted by pharm at 3:51 AM on October 10, 2013 [3 favorites]

FWIW, I had to change visa status partway through. I was on a Tier2 visa for years 1-4. Then I got married and changed to a spousal visa. I was told that "reset the clock" and I had to wait another 5 years.

(For anyone curious as to why I would do that to myself, I had to because I wanted to change jobs and my work visa was tied to my employer I wanted to leave.)
posted by like_neon at 5:07 AM on October 10, 2013 [1 favorite]

Best answer: Yeah, you're probably going to have to talk to a lawyer to have any degree of certainty. Your residence may be continuous, but application may be dependent on being resident under a specific visa for the requisite time :(
posted by pharm at 5:27 AM on October 10, 2013 [2 favorites]

I am not your nationality specialist and my statements here in no way provide legal advice, nor do they necessarily reflect the position of the British government. Please note that I am just a person on a website and I am not providing authoritative advice on this.

That said, I have some professional experience with British nationality determinations and have asked some other people in my office for guidance on your question; it appears that the different visas should not be a problem and you should be able to obtain indefinite leave to remain.

As a bonus, if you have kids in the UK while you have indefinite leave to remain status, they will officially be British citizens whereas if you are just visiting on a visa they will not have a British nationality claim.

I hope this is helpful! Best of luck to you.
posted by Mrs. Pterodactyl at 8:13 AM on October 10, 2013 [2 favorites]

I just got my ILR in April, and I applied on the basis of two visas over the 5-year period - HSMP, then a Tier 1 -- it was no problem. Based on the guidance pharm linked to (which is the same guidance document that I used when applying), it looks okay to me.

ILR applications are so stressful - feel free to MeMail me if you want to ask questions or just want commiseration ;)
posted by ukdanae at 9:35 AM on October 10, 2013 [2 favorites]

ukdanae: my further reading on this seems to indicate that whilst you can combine time spent on various work-related visas towards the 5 year count, you can't combine time spent on a spousal visa with that spent on a work related visa, which matches like_neon's experience & may mean that the OP is out of luck and needs to wait another few years.
posted by pharm at 11:57 AM on October 11, 2013 [1 favorite]

Response by poster: Thank you all so much for your replies - all really incredibly helpful - and for your kind words of support. Am feeling like I have a much better handle on this now. I will probably get some professional advice before my appointment and in any case will report back with the outcome, which I should know before this thread closes since I'm applying in person. Or at least I will do so if I don't get told outright that it won't work.

Pharm, if you don't mind me asking, what specifically did you read that excluded combining spousal with other visas? My hope is that the interpretation will be different for the ancestry category, since the specific guidance note there does say "on the basis of ancestry for 5 years", which is indeed the case, just not *my* ancestry for part of the time...
posted by Pre-Taped Call In Show at 2:40 AM on October 12, 2013

I think you will be fine, as you had the potential to qualify in your own name, and that should be clear to the reviewing officer, but of course, you will have to see for yourself. One extra bit of info that may be useful, you can apply for a second ancestry visa, should you leave the UK but later seek to return. It isn't just a one shot deal.
posted by bystander at 4:19 AM on October 12, 2013

I agree that you might possibly be allowed to apply on the basis of UK ancestry - my understanding however is that it's not possible to transfer time spent in the UK under an ordinary spousal visa to that spent under a work visa for the purposes of applying for ILR. If I were a rules lawyerimmigration official, I might not count time spent in the UK on a UK Ancestry (spousal) visa as it wasn't *your* ancestry that was enabling you to be in the UK, even if you would have qualified for one had you applied in your own name at the time.

But you should definitely ask a laywer familiar with UK immigration because this is clearly a relatively unusual corner case and there might be a route through the rules you could take.
posted by pharm at 2:27 PM on October 12, 2013

Here is a link which suggests that you can't combine spouse & work visa time.
posted by pharm at 2:44 PM on October 12, 2013

Response by poster: Hi all.

So, I got some legal advice which has led me to withdraw my application for now.

I've been advised by an immigration solicitor that my first two years on an ancestry (spousal) visa did not count towards the requirement for ILR under the ancestry route, for which the requirements are assessed in a specific and narrow way. Since my case does not exactly match any of the routes to ILR specified in the regulations, it would be left to the discretion of UKBA, and in the current climate they would almost certainly reject (although that would not affect my current visa status nor prejudice my application in two years time once I've been on one visa for five years).

Anyway, I can still stay in the UK and work without any problem. I'd been hoping to apply for a PGCE next year and that's unfortunately off the table now (as I'd be an overseas student), so that's too bad, but there you go.

Since the stress of moving countries can be so hard on relationships, I was surprised to hear that I was the first specific case of this type that the firm I consulted had seen. I guess it's rare that both parties qualify for ancestry independently and also rare for the "dependent" party to want to stay on in the UK rather than moving home.

Thanks very much again to all of you for your kind and helpful advice.
posted by Pre-Taped Call In Show at 6:23 PM on November 12, 2013