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.

FOIA3 Request

Third FOIA request

17 October 2007

Dear Sir/Madam

Request for information under the Freedom of Information Act 2000

I wish to request access to the following information, which I believe to be held by your organisation:

The following requests relate to the "continuity" clause as stated in rule 276A in the immigration rules: "provided that the applicant in question has existing limited leave to enter or remain upon their departure and return"

I'd like to request a copy of the first correspondence which generated the need to add this clause into the immigration rules.

I'd like to request a copy of the final approval correspondence to add this clause.

I'd like to request a copy of any socio-economic impact analysis report, on (1) the Home Office (2) the British public (3) the non-EEA residents pertaining to the introduction of the continuity clause in the April 07 regulations. If such report does not exist, I would like to know whether this is by deliberate omission or not.

My preferred form of access to these records is via mail.

I believe that the cost of providing such information should not exceed £600, if the reports do exist, because it would involve mainly photocopying or printing costs.Moreover any correspondence pertaining to the report should be relatively easy to locate, because I'm requesting the first and last correspondence about this clause.

Regards

FOIA1 reply

I've received today a reply to my first FOIA request, to ask them to justify the £750 fees. Letter given as follows.





I will reply and seek further clarification, especially a subset of emails/correspondence relating the issue of charging a reasonable price for services and how they define reasonable.

Also paying fees to pay for more stringent tests.

MP2 email to MP

Hello Ms XXX,

Thank you very much for your prompt email.

I will list the visas that I have held since Sep 1997, and I'm also attaching 2x PDFs of the Immigration caseworker instructions that I have obtained via prior FOIA requests by colleagues.

With regards to ILR 2004.PDF, I'm referring to para 5 'WHAT CONSTITUTES CONTINUOUS RESIDENCE : 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.'

With regards to ILR 2007.PDF, the new changes are in para 2.1.3, specifically, 'Subject to that, continuity 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 has existing limited leave to enter or remain upon his departure and return.'

My visas are as follows:
06/09/1997 - exp 30/09/2000 student visa issued by airport immigration
07/08/2000 - exp 30/09/2002 student visa issued by airport immigration
25/08/2002 - exp 30/09/2003 student visa issued by airport immigration
17/07/2003 - exp 30/09/2004 work visa (no more 'work must be authorised') -- issued by airport immigration, having seen my work contract
07/10/2004 - exp 05/12/2004 permit free training issued by IND by post, no visa break
08/12/2004 tourist visa for 6 months *VISA BREAK*
27/12/2004 tourist visa for 6 months *VISA BREAK*
14/02/2005 - exp 31/08/2005 permit-free training issued by IND by post, no visa break
23/09/2005 - exp 30/09/2008 permit-free training issued by IND by post, no visa break

The refusal letter listed the following 6 dates to explain the refusal, and I also list the reason for the new visa:

06/09/1997 - first landing
07/08/2000 - still a student at university
25/08/2002 - still a student at university
17/07/2003 - just graduated 2 weeks ago and have job starting August 2003
08/12/2004 - tourist visa ... in between jobs but no paperwork
27/12/2004 - tourist visa ... ditto

In summary, I was a student from September 1997 until 1 July 2003, went on holiday until 17 July 2003, started training in August 2003 until December 2004; in the meantime I secured a General Practitioner training programme which would start in February 2005, so I went travelling twice in December 2004 before starting my training again in February 2005, to complete my training in February 2008.

Therefore according to the previous ILR guidance, I have maintained ties with the UK, I have no criminal record / deportation order, I am single therefore have not married out of convenience, and I have not left UK with the intention to not return. I have maintained my rental/mortgage payments for the past 10 years. I believe that I should, with the previous guidance, be granted settlement.

I hope this information will be useful.

My home office reference number is XXXXX or XXXX.

Dr XXX

MP1 reply

Received a reply!

Dr XXX,

Mr XXX has asked me to thank you for your email. Mr XXX would be very happy to take up your case with the Home Office but would find it helpful if you could first provide details of when you first entered the UK and the visas that you have held since that date. I would also be grateful if you could let me have any Home Office reference number relating to your case.

I look forward to hearing from you.

Kind regards,

PA to XXX MP
Member of Parliament for xxx
Direct Line: 0207 xxx xxxx

Will email back quickly!

AIT case

But this predates the May 2007 change of rules

http://www.ait.gov.uk/Public/Upload/j1861/00031_ukait_2006_os_hongkong.doc

This basically states the the concession and the rules were complementary.

FOIA2 request

2 October 2007

Request for information under the Freedom of Information Act 2000

I wish to request access to the following information, which I believe to be held by your organisation:

1. I would like to receive the rationale for introducing the Continuity rule for applications to Indefinite Leave to Remain under the Long Residence category, whereby continuity is deemed to have been broken for a short visa break, which has recently been introduced in April 2007.

2. I would like to receive all the minutes, discussions regarding the introduction of the continuity rule, and the names, job descriptions, and affiliation of all parties present in the discussions as above.

3. I would like to receive the detailed contingency plans available for people who would have qualified under the immigration rules pre-April 2007, and are now retrospectively disqualified under the new rules.

My preferred form of access to these records is via mail.

If the release of such information would be illegal according to the current legislation, I would be satisfied with an amended release, which would be within the terms of the current legislation.

Regards

MP1 email to my MP

Wrote an email to my MP, Ben Wallace, in Lancaster on 2/10/07 -- no reply yet

Dear XXXXXX,
I'd like to raise the issue of immigration, which is a current government hot topic.

The government issued a RETROSPECTIVE change in immigration rules, in April 2007, regarding the issue of Indefinite Leave to Remain (settlement) visas on the basis of Long Residence, which I believe is unfair.

Previously we could apply after 10y continuous residence, barring deportation, criminal records etc.

Nowadays we can only apply after 10y continuous residence, however the continuity is broken upon leaving the country (even a short 7 days) without a valid prospective visa. During this short break, I had a guaranteed job but no paperwork yet, so I could not apply for an extension before the visa had run out.

This new rule was imposed in April 2007, I'm not sure whether there has been a proper consultation with the relevant parties, and with no proper contingency for people who have been caught out (like me) but who have never used this country's funds.

As you may have guessed, my application was refused in August 2007 because of these short breaks.

I am only 5 months away from becoming a GP and I will be very sorry to have to leave this country at the end of my visa.

Had I known about this change in rule I would certainly have made arrangements a long time ago.

Would you be able to look into this for me?

Yours sincerely,

Dr XXXXX
MBChB Manchester 2003

The progress so far

I arrived in UK in 5 September 1997
Graduated from full-time university course 1 July 2003
Started work August 2003
Short period of no work December 2004 - January 2005
Restarted work February 2005

In August 2007 I apply for settlement under the Long Residence category

I receive a negative reply 6 weeks later because the home office was not satisfied that I had stayed in the country continuously legally in the past 10 years, after spending £750 for my settlement fee, and NO right of appeal.

I checked the immigration rules -- 

www.bia.homeoffice.gov.uk/lawandpolicy/immigrationrules/part7

which now clearly states
a) "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, but shall be considered to have been broken if the applicant:

(emphasis mine)

which I was surprised about, because I had never seen it before.

A relative informs me of this new rule.

I cannot find a consultation document which explains this new rule.

I will seek legal advice on the basis that this change is unfair, has been done retrospectively, and there is no provision for me to prepare my visa status for this change, which could have eased my application.

Subject Access Request

This is the Subject Access Request that I sent off in September 2007:

27 September 2007

Immigration and Nationality Directorate (IND)
Subject Access Bureau (SAB)
10th Floor
Sunley House
Bedford Park
Croydon
CR0 2AP

Data Protection Act 1998 - Subject Access Request

Dear Sir or Madam

I was born in XXX on the XXXXX. I arrived in London, England on XXX September 1997 as a student at The University of Manchester, using passport number XXX issued by the Republic of XXX Passport Office. My last application to the home office had letter reference numbers XXX and XXX, for the case ID XXX.

I would like to request a copy of the information about me that I am entitled to under the Data Protection Act 1998. I would be grateful if you could disclose the entire contents of my file. I enclose a cheque for £10. Please would you also tell me the logic involved in any automated decisions you have made about me.

If you need any more information from me please let me know as soon as possible.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer or another appropriate officer.

Yours faithfully

FOIA1 request

This is the FOIA1 request that I sent off in September 2007:

Request for information under the Freedom of Information Act 2000

I wish to request access to the following information, which I believe to be held by your organisation:

I would like to receive the minutes of the meeting where the decision to set the cost of making an application at £750 for a postal application, and £950 for a personal application for an extension of UK residence, or for settlement, to the Home Office was set at.

My preferred form of access to these records is via mail.