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?