Post
by ILR1980 » Thu Dec 12, 2013 11:20 pm
You should read this section in policy guidance
Time awaiting a decision on an application or appeal :
This page tells you when time spent in the UK awaiting a decision on an application or an appeal counts as lawful residence for long residence applications.
Sections 3C and 3D of the Immigration Act 1971 both extend a person's leave in certain circumstances. To prevent applicants from becoming overstayers through no fault of their own, section 11 of the Nationality, Immigration and Asylum Act 2002 introduced an amended Section 3C into
the Immigration Act 1971.
Section 3C extends leave when a person with leave to enter or remain makes an in-time application. That is one made before their leave expires, but one in which their leave expires before a decision on that application is reached. If a person has 3C leave, and their application is refused, 3C leave continues until their appeal rights are exhausted. Section 3C
only applies to in-time applications.
If a person submits an out-of-time application, they will have a gap in continuous lawful residence, from the date their leave expired until the date they are next granted leave, regardless of how long it takes for the decision to be made.
To prevent people becoming overstayers while exercising a right of appeal against a decision to curtail or revoke leave to enter or remain, section 11 of the Immigration, Asylum and Nationality Act 2006 added section 3D to the Immigration Act 1971. When leave to enter or remain is curtailed or revoked, Section 3D extends it while an appeal is brought, while it is
pending, and continues until appeal rights are exhausted.
Both 3C and 3D leave count as existing leave to enter or remain in the UK, and therefore as lawful residence for the purpose of the 10 year long residence rule.
A person cannot make a fresh application for leave while they have 3C or 3D leave pending the outcome of a decision on their outstanding application. This means that someone who reaches the 10 year threshold during this leave cannot apply for indefinite leave. This could
occur in the following two situations
The applicant completes 10 years continuous lawful residence while awaiting a decision on an application for further leave
If the application that has generated the 3C leave has not yet been decided, the applicant
can vary the grounds of that application to include a request for leave on the basis of long residence. If a long residence application would attract a higher fee than the initial application, the applicant must pay the balance before the varied application can be
considered.
The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal
A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application on this basis. Under sections 3C and 3D, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.
If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the case and refund the fee. You must create a file or sub-file and mark it ‘PRIORITY’. You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You
must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.
If the appeal is against a decision to curtail or revoke, and the immigration decision was made on or after 31 August 2006, you must follow the same process but you must use Doc
Gen letter ICD.3258.
