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Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7613
Experience:  BA (Hons), PgDip, Practising Solicitor
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Dear Sirs, I am in the process of applying for Indefinite

Resolved Question:

Dear Sirs,

I am in the process of applying for Indefinite leave in the UK under the 10 year lawful residence rule. I have a query for my wife whereby she is also entitled for the ILR under 10 year rule.

She was a student from 2002 to 2003, her application for extension of leave as student was refused in 2003 which she appealed on time (within 10 days). We were married in January 2005 while the appeal was still in process and she was allowed to become my dependent spouse from Feb 2005 till now. Can you please let me know if she is entitled to apply for ILR under the 10 year rule whilst her appeal was still in progress?
Submitted: 5 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 5 years ago.

What visa did you hold when she was your dependent?

Customer: replied 5 years ago.
I was on student visa in 2005 and then on work permit from Feb 2009 and entrepreNeur vids from April 2012.
Expert:  Thomas replied 5 years ago.

I will have to do a bit of research at the office tomorrow on this.

I hope this is okay.

Customer: replied 5 years ago.
Ok No Problem. I hope you understand the situation:-

My wife entered the UK on student visa from 2002 to 2003.

She subsequently applied for further leave to remain as a student in 2003 which was refused but she appealed within 10 days.

No further response was received from UKBA from 2003 to 2005. We were married in February 2005 and was allowed to apply for dependent on my student visa application which was granted in May 2005 and I assume the appeal was automatically cancelled.

She has been as a dependent spouse as a student from 2005 to 2009.

She was also dependent of work permit holder from Feb 2009 and finally from April 2012 as dependent of entrepreneur visa holder.

Can you advise if she would be entitled to apply for ILR under the 10 year rule in September 2012, if so under which immigration rules?

Thank You!
Expert:  Thomas replied 5 years ago.
Expert:  Thomas replied 5 years ago.

Thanks for your patience.

Whether or not she qualifies for ILR on the basis of long residence depends entirely upon her status following what happened after you submitted the appeal in 2003.

Please refer to the guidance at Page 14 “Single Gap in Lawful Residence” on the following link:-

You will see that one small gap in lawful residence means that the UKBA caseworker may exercise their discretion to disregard a small unlawful residence and allow the application.

Therefore, if the UKBA received your notice of appeal and then withdrew their objection to the application and gave her further leave to remain then you could expect them to disregard the small period of unlawful residence between when her visa ran out and when they withdrew their application.

However, I note that you say that you did not hear from them between 2003 and 2005. Therefore there doubt over her status within this time. Just because they did not take action to deport her and then subsequently granted her a new visa does not mean that she had leave to remain by implication. Leave is always stampted and dealt with expressly by the UKBA.

I cannot really comment further because I have no idea of her status within this time, but if she got leave to remain after you submitted her appeal then she would probably receive ILR on the basis of long residence. If she did not and was unlawful and the UKBA imply did not take enforcement action then she would not qualify under the long residence rules.

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Kind regards,

Thomas and other UK Immigration Law Specialists are ready to help you
Customer: replied 5 years ago.
Thanks but your answer is vague & confusing. The question is while her appeal was still in progress with ukba from 2003 to 2005, will this count?
Expert:  Thomas replied 5 years ago.

If she had valid leave to remain when she applied in 2003 and the appeal geuinely lasted for 2 years (which I am extremely uncertain of) and she was ultimately successful in her appeal then she would be eligible to apply for long residency.

However, if she applied in 2003 after her visa expired then the period to 2005 would be regared as her not having lawful residence and therefore she would not be eligible to apply for long residency.

Please remember to rate my answer.

Kind regads,

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