Is that a Gap in Long residence

cool mind · Post by **cool mind** » Tue Apr 08, 2014 2:02 pm

If all the students visa extension applications during 10 years had been made in time except one time when extension application has been sent before the current leave expires which refused after 5 months of processing with the options of appeal/reapply. And appeal time was given of 10 days. But fresh application has been applied on the 8th day of refusal which approved in 38 days. Based on the above which is the best answer at below:

1. Section 3C will apply to first application till its refusal date + appeal 10 days and 2nd application is not out of time because its within appeal deadline time of 10 days. OR

2. Second application is just out of come for about 8 days. OR

3. There is a gap of 38 days.

Replies needs. regards.

cool mind · Post by **cool mind** » Wed Apr 09, 2014 8:18 am

Anyone

vinny · Post by **vinny** » Wed Apr 09, 2014 10:29 am

There is a gap.

1. You were lucky. They could have considered a fresh application within 8 days following a refusal as being invalid, as Section 3C was still in effect.

2. Therefore, second application's application date was apparently deemed to be after Section 3C has lapsed (probably by less than 8 days).

cool mind · Post by **cool mind** » Wed Apr 09, 2014 11:04 am

Thanks Vinny.
So, am i thinking right that this 8 days gap between the refusal decision and the 2nd fresh application does not break continuous residence because present guidance allow 28 days while old guideline allowed less than 10 days when an out of time application can be made?

sheraz7 · Post by **sheraz7** » Wed Apr 09, 2014 6:19 pm

Answer # 1 is correct as there is no gap. Read the underlined instruction at below:

Calculating the date the period of overstaying begins

Calculating the date the period of overstaying begins

You must calculate the date on which the period of overstaying begins based on the last day
of the migrant’s latest grant of leave to enter or remain, or when leave under section 3C or
3D ended. You must take into account any variation on the duration of leave, such as a
curtailment decision.

The first day of the 28 day period begins on the first day after the day the migrant’s leave
has expired. This is unless the migrant has submitted an in-time application which has not
been decided before their leave expires. If the migrant did make an in-time application, one
of the following will apply:

 If the application is subsequently refused, the migrant’s leave will have been extended
by virtue of section 3C of the Immigration Act 1971 while:

o An in-time appeal could be brought (section 3C(2)(b)). The extension of leave during
the period that an appeal could be brought does not rely on the individual exercising
their right of appeal. If no appeal is brought the extension of leave ends at the same
time as the deadline for raising an in-time appeal.
o An appeal against that decision is pending (section 3C(2)(c)). If an appeal is brought
the leave is extended during any period that the appeal is pending, ending when it is
finally determined, withdrawn or abandoned. It is also pending during the period that
an application for permission to make an onward appeal to the Upper Tribunal or to
the relevant appellate court, as specified by the Upper Tribunal, for instance the
Court of Appeal in England and Wales, the Court of Session in Scotland or the Court
of Appeal in Northern Ireland, could be made or is awaiting a decision.

Zee ali · Post by **Zee ali** » Wed Apr 09, 2014 6:49 pm

@vinny

i had 9 days out of time application

visa expired=30th june 2007

visa applied according to SAR= 09 july 2007

visa granted according to SAR= 23th july 2007

Do i have a gap in long residency??????

vinny · Post by **vinny** » Fri Apr 11, 2014 12:32 am

There is a gap. However, if it's within the 28 days limit, then you should be okay.

cool mind · Post by **cool mind** » Fri Apr 11, 2014 7:06 pm

sheraz7 wrote:Answer # 1 is correct as there is no gap. Read the underlined instruction at below:

Calculating the date the period of overstaying begins

Calculating the date the period of overstaying begins

You must calculate the date on which the period of overstaying begins based on the last day
of the migrant’s latest grant of leave to enter or remain, or when leave under section 3C or
3D ended. You must take into account any variation on the duration of leave, such as a
curtailment decision.

The first day of the 28 day period begins on the first day after the day the migrant’s leave
has expired. This is unless the migrant has submitted an in-time application which has not
been decided before their leave expires. If the migrant did make an in-time application, one
of the following will apply:

 If the application is subsequently refused, the migrant’s leave will have been extended
by virtue of section 3C of the Immigration Act 1971 while:

o An in-time appeal could be brought (section 3C(2)(b)). The extension of leave during
the period that an appeal could be brought does not rely on the individual exercising
their right of appeal. If no appeal is brought the extension of leave ends at the same
time as the deadline for raising an in-time appeal.
o An appeal against that decision is pending (section 3C(2)(c)). If an appeal is brought
the leave is extended during any period that the appeal is pending, ending when it is
finally determined, withdrawn or abandoned. It is also pending during the period that
an application for permission to make an onward appeal to the Upper Tribunal or to
the relevant appellate court, as specified by the Upper Tribunal, for instance the
Court of Appeal in England and Wales, the Court of Session in Scotland or the Court
of Appeal in Northern Ireland, could be made or is awaiting a decision.

excellent link. Thanks

Amber · Post by **Amber** » Fri Apr 11, 2014 11:10 pm

The extension of leave still ended, however, it's immaterial as a new application was made within 28 days of an in time decision.

sahid · Post by **sahid** » Fri Apr 11, 2014 11:56 pm

Dear Amber,

Can you please advice me in this situation. I applied for a student visa extension before my PSW expired. But unfortunately my Visa got refused due to my bank was not mentioned in the bank letter that I had this funds in my account for 28 days.

Then I got legal advice from different solicitors regarding this situation because I am about to complete my ten years end of this year. So basically I got the same advice from three different solicitors saying, I should make a fresh application because actually I had enough funds in my bank account £24500. I made a fresh application and my visa was granted till end of this year. I can summarise my case as follows,

Applied for visa extension on 16th of August - PSW supposed to expired 25-08-2013
Visa refused letter dated 26th of September
Made a fresh Application on 16th October
Visa granted letter 09th November

They gave me an opportunity to make an appeal but I did not make an appeal as it is a long process according to my solicitors advice. So I really need to know how this situation will be affected to my ILR application. All my previous applications made in time.

I would really appreciate your advice in this matter.

Thank you.

Amber · Post by **Amber** » Sat Apr 12, 2014 8:16 am

Should be fine as your gap was less than 28 days:

From and including: Thursday, September 26, 2013
To, but not including Wednesday, October 16, 2013

Result: 20 days

cool mind · Post by **cool mind** » Sat Apr 12, 2014 1:54 pm

Amber_ wrote:The extension of leave still ended, however, it's immaterial as a new application was made within 28 days of an in time decision.

hi Amber
The long residence guidance introduced in 2013 was actually started acceptance for out of time application up to 28 days in contrast of the long residence guidance prior to 2013 was only give 10 days. So, if the out of time application case happened prior to 2013 lets suppose in 2009 then will that 28 days out of time application rules which introduced in 2013 will still apply or the rule which exist before of 2013 which allows a single gap of 10 days will apply?

Amber · Post by **Amber** » Sat Apr 12, 2014 5:11 pm

No, the 28 day rule will apply.

sahid · Post by **sahid** » Sat Apr 12, 2014 6:23 pm

Thank you Amber, really appreciate your advice.

Bigboy86 · Post by **Bigboy86** » Tue Apr 22, 2014 2:44 pm

Amber_ wrote:No, the 28 day rule will apply.

hi guys i have a similar situation
During my long residency i once had this situation, please help me to figure out if this will be counted as a breakdown period or not

I had a Tier 4 visa
From 04/03/2008 to 30/06/2009

i applied before my visa expired as a tier 4 in 2009
AND
home office sent me a letter saying that the card number i provided didnt go through and asked me to resubmit the application with the correct fee. The mistake i made there was i sent the bank statement which didn't have enough money init and home office refused my application and gave me 2 option either i appeal within 28 days or i leave within 28 days.
I then went to my solicitor and he advised me to resubmit the fresh application which i did within those 28 days and got tier 4 visa granted

From 01/07/2009 to 01/10/2009 (took 3 months of all this process before they issued me the visa starting from 01/10/2009)

My question is that within all this happening in 3 months was i ever over stayed or broke my long residency.

can anyone please tell me if i am in trouble

cool mind · Post by **cool mind** » Tue Apr 22, 2014 3:32 pm

Bigboy86 wrote:
Amber_ wrote:No, the 28 day rule will apply.
hi guys i have a similar situation
During my long residency i once had this situation, please help me to figure out if this will be counted as a breakdown period or not

I had a Tier 4 visa
From 04/03/2008 to 30/06/2009

i applied before my visa expired as a tier 4 in 2009
AND
home office sent me a letter saying that the card number i provided didnt go through and asked me to resubmit the application with the correct fee. The mistake i made there was i sent the bank statement which didn't have enough money init and home office refused my application and gave me 2 option either i appeal within 28 days or i leave within 28 days.
I then went to my solicitor and he advised me to resubmit the fresh application which i did within those 28 days and got tier 4 visa granted

From 01/07/2009 to 01/10/2009 (took 3 months of all this process before they issued me the visa starting from 01/10/2009)

My question is that within all this happening in 3 months was i ever over stayed or broke my long residency.

can anyone please tell me if i am in trouble

no your situation is not same, its different because 1st time your application returned invalid and 2nd time your application refused. But i do not know that how many times this 28 days exemption applies but it certainly applies in one time where application return invalid/refuse.

Bigboy86 · Post by **Bigboy86** » Tue Apr 22, 2014 3:49 pm

cool mind wrote:
Bigboy86 wrote:
Amber_ wrote:No, the 28 day rule will apply.
hi guys i have a similar situation
During my long residency i once had this situation, please help me to figure out if this will be counted as a breakdown period or not

I had a Tier 4 visa
From 04/03/2008 to 30/06/2009

i applied before my visa expired as a tier 4 in 2009
AND
home office sent me a letter saying that the card number i provided didnt go through and asked me to resubmit the application with the correct fee. The mistake i made there was i sent the bank statement which didn't have enough money init and home office refused my application and gave me 2 option either i appeal within 28 days or i leave within 28 days.
I then went to my solicitor and he advised me to resubmit the fresh application which i did within those 28 days and got tier 4 visa granted

From 01/07/2009 to 01/10/2009 (took 3 months of all this process before they issued me the visa starting from 01/10/2009)

My question is that within all this happening in 3 months was i ever over stayed or broke my long residency.

can anyone please tell me if i am in trouble
no your situation is not same, its different because 1st time your application returned invalid and 2nd time your application refused. But i do not know that how many times this 28 days exemption applies but it certainly applies in one time where application return invalid/refuse.

thanks cool mind

is there anyone else who can help me

Zee ali · Post by **Zee ali** » Tue Apr 22, 2014 7:52 pm

hi

@Bigboy86

I think u have a Gap and break in your LR.

Gap up to 28 days will be disregarded. but when it's more than that. than u should consult a very good solicitor to fight your case and

than it's HO discretion whether to consider the gap or use their discretion.

Regards

Bigboy86 · Post by **Bigboy86** » Tue Apr 22, 2014 8:51 pm

Zee ali wrote:hi

@Bigboy86

I think u have a Gap and break in your LR.

Gap up to 28 days will be disregarded. but when it's more than that. than u should consult a very good solicitor to fight your case and

than it's HO discretion whether to consider the gap or use their discretion.

Regards

thanks for the post zee

if you don't mind me asking how did you come to that conclusion

cool mind · Post by **cool mind** » Wed Apr 23, 2014 11:02 am

@bigboy86.
Instead of posting again again, i think better if you order sar file to check your exact circumstances in UKBA data record. I also personally think 28 days exemption certainly applies one time when application return invalid/refused but in 2nd or 3rd times whether this 28 days exemption applies nobody knows.

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