The fight continues

New information
http://www.scribd.com/doc/8507410/Long-Residence-Directive-Sept-2008

Rejected from HO again

The latest disappointing letter from Home Office.

A letter back to my MP will follow.

Dear X

Thank you for your letter of 20 November 2007 in which you provided further information in respect of the long residence application submitted on 11 August 2007.

You had no valid from 5.12.04 until 8.12.04 when you re-entered the United Kingdom as a visitor and no valid leave from 15.12.04 when you left the United Kingdom to 27.12.04 when you again re-entered as a visitor therefore you do not satisfy the requirements of 10 yrs continuous lawful residence in the UK

The Secretary of State's policy is not to exercise discretion unless there are clear exceptional compassionate circumstances which have not previously been considered and which merit the exercise of discretion outside the Immigration Rules.

The decision made in respect of this application has been carefully considered, but we are not prepared to exercise discretion in this instance.

Yours sincerely / faithfully

Mrs X
CLS10
General Group Managed Migration Directorate

Letter from my MP

12 December 2007:

Further to my letter of 26 November I enclose this reply that I have now received from Sonia Dower, Dept Director at the BIA.

I understand that your case is to be reviewed once again in the light of the further information you have provided. I note that the outcome will be sent to you directly.

I should be grateful if you would let me know the content of that response.

and the next page...

I trust you have since received my letter sent in reply to your earlier letter... My reply explained that Dr X's application has been refused because of breaks in the continuity of his residence when his leave to remain expired on occasions while he was abroad and he required fresh leave to enter on his return.

The enclosures with your latest letter have been noted. Your correspondence and these enclosures will now be referred back to the appropriate casework unit to review the decision as you have requested. As Dr X does now qualify under the relevant provisions of the Immigration Rules, you will understand that I can give no assurance that the decision will necessarily be altered. However the points made will be carefully considered to asses whether there are any exceptional circumstances and Dr X will the be notified direct of the outcome.

There's a small glimmer of hope but I'm not holding my breath!

Letter direct to BIA

20 November 2007

Border & Immigration Nationality Directorate
General Group Managed Migration Directorate
PO Box 3468
Sheffield
S3 8WA

Dear Sir / Madam:

With regards to the notice of refusal to my application for indefinite leave to remain in the United Kingdom on the basis of my long residence:

I would like to ask you to reconsider your decision.

The refusal pertains to my entry into the United Kingdom on 6 separate dates, allegedly “provided that the applicant (...) has existing limited leave to enter or remain upon their departure or return...”, however I can definitely explain and provide documentary evidence for some of the alleged dates of re-entry “with new leave to enter on each of the aforementioned occasions”.

This is a list of my visas, with their expiry dates, the alleged infringing entries being shown in bold:

6 September 1997 (up to 30 September 2000 therefore no break with next visa)
7 August 2000 (up to 30 September 2002 therefore no break with next visa)
25 August 2002 (up to 30 September 2003 therefore no break with next visa)
17 July 2003 (up to 30 September 2004 but next visa extended within time limit)
7 October 2004 (up to 5 December 2004)
8 December 2004 tourist visa
27 December 2004 tourist visa
14 February 2005 (up to 31 August 2005 but next visa extended within time limit)
23 September 2005 (up to 30 September 2008)

I was enrolled at University from September 1997 to July 2003, and I completed my degree. I have my full-time degree certificate to prove this, which should validate 6/9/2007 7/8/2000 and 25/8/2002 above. I completed my MBChB degree in medicine during the 6 year period. I would confirm that my visa had NOT expired, therefore I did satisfy the requirement for “existing limited leave to enter or remain”, but was extended by the airport immigration official having seen my student documentation.

I was employed as a pre-registration doctor in Lancaster from August 2003 to August 2004, and in Bolton from August to December 2004. Again, on 17 July 2003, the airort immigration official was satisfied with my documentation that I would take up paid employment, and was happy to issue a visa extension.

The last two infringing entry visas, namely 8 December 2004 and 27 December 2004, pertain to my having completed my pre-registration training as a junior doctor in the NHS, and was about to enrol in GP training from February 2005. I was aware, and the postgraduate deanery in Manchester, were aware of the 2-month gap whereby I would be unable to work in the United Kingdom; moreover the job contract from February 2005 onwards would not be available until after the job started. This is the reason for the gap in employment, and for the 2 occasions whereby I went on holiday. I am able to provide documentary evidence for this, and I am also able to ask the responsible parties to confirm the job being offered before my visa ran out in 5 December 2004.

I would like you to reconsider the refusal because although I was aware that I would have a gap in December 2004-January 2005, I was aware of the Immigration Directorate Instructions (IDIs) which in 2004 and 2005 remained:

“Continuity need not be broken by a small number of short absences abroad of up to 6 months at any one time during the 10/14 year period. Short absences cannot be said to disrupt or sever ties with the United Kingdom. These absences should normally be ignored, unless such trips are frequent. In such cases the reasons for such frequent trips should be requested, as the applicant may have a business or be maintaining family ties abroad. In some cases a lengthier absence may still not sever the ties to the United Kingdom. In each case the strength of the ties to the United Kingdom, the reason for, and effect of the absence should be taken into account.”

Moreover from the same IDIs which were applicable in 2004 and 2005,

“However, each case should be considered on its merits and the length and quality of the overall period of residence should still be taken into account, together with all other relevant factors, and balanced against the need to maintain an effective control. ”

In my case, I had maintained strong ties with the United Kingdom by virtue of my UK degree, UK pre-registration and postgraduate training in General Practice. My short absence lasted only 4 days and 12 days to Europe. I did not return home to Mauritius. I have no criminal record / deportation order, I have not married out of convenience, I have not left UK with the intention to not return. I have maintained my rental/mortgage payments for the past 10 years. I have no recourse to public funds.

I feel, and my MP is in agreement, it is deeply unfair that in May 2007 the new Immigration Directorate Instructions (IDIs) are published, and the continuity rule is suddenly applied retrospectively.

I am able to apply for UK residency via the Highly Skilled Migrant Programme, and indeed had I known about this change I would have applied several months ago. However I feel that my situation should warrant exceptional approval from the Secretary of State. Should you need any documentation to support my above claims, I am happy to arrange for the originals to be sent direct to you.

Yours sincerely

FOIA2 reply

I've received a reply from my FOIA2 query, which is not satisfactory: This is a gist of the letter, will post scanned image later.

(...)

In Spring 2006 the old insrtuctions were withdrawn. The instructions contained details allowing short periods spent here without existing leave to be disregarded. The new instruction was drafted and ensured that the guidance focused on the actual wording in the immigration rules closely. This is not a change in the rules, but a clarification of the position on breaks in continuity.

Finally in regard to your final question concerning contingency plans, I can confirm that the Border and Immigration Agency does not hold the information you have requested.
(...)

This begs the question -- have the rules changed or not? Why won't they give me the information I requested under the FOIA, regarding the decision to include the continuity rule?

Letter to MP

I sent the following reply to my MP:

26th October 2007

Dear XXX

Thank you for your letter dated 16 October 2007 which only reached me yesterday the 25th October because, I presume, of the strike.

Further to your kind enquiries and request to review my case at the Border & Immigration Agency, I submit further photocopied documents to support my application, which can explain the visa gap that happened in December 2004 – January 2005. I have not sent the documents with my ILR application because the agency never actually asked for any documentary evidence either in the initial application form, or during their internal enquiries.

1. I submit a University confirmation that I was a full time student from 1 September 1997 to 13 June 2003, which should validate my stay between the respective dates (01.09.1997 – 13.06.2003)

2. I submit a Dept of Postgraduate Medicine and Dentistry document dated 25 February 2003, well before my above visa expiry, to confirm my Pre-registration House Officer placement from August 2003 to July 2004, which would validate my stay until July 2004.

3. I submit my acceptance, dated 26 April 2004, again well before the visa expiry, of the offer to a 3 year vocational training scheme in XXX commencing August 2004 which would generate a 3-year training contract.

4. I submit a further letter from the XXX dated 25 June 2004 to confirm my appointment to the GP Vocational Training Scheme from August 2004 to July 2007.

5. However due to stress I was not able to terminate my 1st year pre-registration in July 2004, so, I was required to repeat a 4 month pre-registration post from July to December 2004, therefore, I submit a further Dept of Postgraduate Medicine and Dentistry document dated 28 July 2004, which confirms this and maintains that I would be allowed to start my vocational GP training in paediatrics 6 months later in February 2005. This explains the 2 month visa break which was entirely expected and unavoidable. Because I receive no paperwork until the start of the post, I was not in a position to submit my visa extension before the expiry.

I’m aware that the above documents are all photocopies; the originals for documents 1, 2, 4, 5 are available on request. The original for document 3 is kept by the Department of Postgraduate Medicine and Dentistry in Barlow House, Manchester.

Hence to reiterate their reasons for refusing my ILR are for the following 6 dates:

06/09/1997 - first landing
07/08/2000 - still a student at university (ref document 1)
25/08/2002 - still a student at university (ref document 1)
17/07/2003 - just graduated and have job starting August 2003 (ref document 2)
08/12/2004 - in between training contract but no paperwork (ref document 5)
27/12/2004 - ditto (ref document 5)

Further documents are available on request, to confirm I have been economically active for the past 10 years, and I’m also able to submit the original work contract if required. I would be grateful if you would forward the documents and explanation to the Border and Immigration Agency.

Regards

I'm sending them by special delivery.

MP2 reply

Simple reply from MP:

"Dear XX
Thank you for your your recent emails.
I recognise your disappointment at the decision that has been made to refuse your application for ILR on the basis of the changes to the immigration rules which were introduced earlier this year.
I have today written to the BIA asking for your case to be reviewed in the light of the circumstances you have described.
Please be assured that as soon as I have a reply I will be in touch with you again.
Yours sincerely."

This was on official House of Commons letterhead. I think it is important I supply him with supporting documentation so he knows I'm honest. Will do tomorrow.