Immigrationboards.com

Hi,

i recently applied for ILR based on 10 years long residence and my application was refused because HM thinks that there was a gap of 115 days in my lawful continuous residence.
i have been given a right to appeal which i will entertain, i just to know whether someone else has been in a similar situation or what could be best course of action and what rules and clauses i could use to support my case. also any recommendations would be appreciated. i will lay down the time line

Immigration History
• 3rd August 2006 Student Visa Granted until 31st July 2008
• 29th September 2006 entered UK based on that student Visa
• on 26th August 2008 applied for student visa extension. which was granted from 10th November 2008 until 31st May 2009
• on 4th June 2009 applied for Tier 4 (General) which was refused on 21st July 2009(didn't have enough maintenance funds and the actual date of refusal is 31st of July 2009) without right to appeal.
• 26th August 2009 applied with a fresh application under Tier 4 (General) which was granted from 24th September 2009 until 30th January 2010.
• 28th January 2010 applied for Tier 1 (PSW) which was granted from 25th Feb 2010 until 25th Feb 2012.
• 14th Feb 2012 applied for Tier 2 (General), which was granted from 16th April 2012 until 20th Feb 2015.
• 13th December 2014 applied for Tier 2 (General) extension, which was granted from 17th December 2014 until 5th March 2018.
• 3rd August 2015 applied for Tier 2(General) job change, which was granted from 22nd September 2015 until 11th August 2017.

Evidence and reason used for Refusal from HM
The refusal is based on the immigration rule under paragraph 276D which requires 276B to be met
276B (i) (a) he has had at least 10 years’ continuous lawful residence in the UK.
(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28-day period.

Reason for Refusal.

You had leave to remain in the UK valid until 31st may 2009. You submitted an application for leave to remain as student on 4th if June 2009, but this application was refused without a right of appeal on 21st of July 2009(this date should be 31st July 2009. HM has the wrong date). Your next successive application was granted on 24th September 2009. You therefore had no valid leave from 1st June 2009 until 23rd September 2009, a period of 115 days. As you did not have valid leave for more than 28days your continuous lawful residence is considered to be broken.

The secretary of state is not satisfied that you meet the requirements of paragraph 276B(v) and your application has been refused under paragraph 276D with reference to 276B(v).

Regards,

Besides what HO is saying, you also applied too early. The date is counted from when you first Entered the UK not your visa start date.

In my opinion, HO is not wrong with their assessment as you did not have valid leave. You have on two occasions (2008 & 2009) applied for 'extensions' after the expiry of your visa. It is always risky to do this.

CR001, appreciate your response.

regarding the first comment about applying too early. one can make application either from the date of entry or when the visa was granted as long as the gap between grant and entry is no longer than 3 months. this gap will be subtracted from 180 day out of country annual allowance.

regarding the second comment. i am concentrating on this sentence "leave to enter or remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28-day period" so by this 4th of June 2009 or 1st of June 2009 until 31st of July 2009(21st of July in HO's database) the period is legal. then the new application was submitted on 26th of August (less than 28 days) and finally getting the visa on 24th September.

Regards,

regarding the first comment about applying too early. one can make application either from the date of entry or when the visa was granted as long as the gap between grant and entry is no longer than 3 months. this gap will be subtracted from 180 day out of country annual allowance.

You are mistaken. This rule is not applicable to ILR based on 10 years long residence. It is only calculated from date of entry if you obtained entry clearance from abroad. This rule you quote ONLY applies to ILR based 5 years residence on PBS/Ancestry routes.

muk4876 wrote:regarding the second comment. i am concentrating on this sentence "leave to enter or remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28-day period" so by this 4th of June 2009 or 1st of June 2009 until 31st of July 2009(21st of July in HO's database) the period is legal. then the new application was submitted on 26th of August (less than 28 days) and finally getting the visa on 24th September.

I am inclined to agree with the Home Office on this.

I believe that this is the section of the Immigration Rules that you are relying on.

Requirements for indefinite leave to remain on the grounds of private life in the UK
276DE. The requirements to be met for the grant of indefinite leave to remain on the grounds of private life in the UK are that:
(a) the applicant has been in the UK with continuous leave on the grounds of private life for a period of at least 120 months.This continuous leave will disregard any period of overstaying between periods of leave on the grounds of private life where the application was made no later than 28 days after the expiry of the previous leave. Any period pending the determination of the application will also be disregarded; ...

Note that it talks of disregarding the period pending determination of the application. That does not mean that you had leave, it just means that your lack of leave is disregarded.

So, let's look at your timeline.
- You had leave till 31st May 2009.
- You applied for T4G on 4th of June. At this point, you have no leave, i.e. you are an overstayer, but that is disregarded for the purpose of calculating long residence.
- That application is rejected for not meeting requirements on 31st July. At this point in time, you still don't have leave which expired on 31st May.

Therefore any application you make subsequently will not be disregarded because your 28 day window post end of leave expired on 28th June.

So, even if the Home office were to disregard the time the first application was under consideration, you would still have a gap of about a month and a half when you both did not have leave and do not meet the requirements for your overstay to be disregarded.

If you had submitted the first application a day before your leave expired, say on 30th May 2009, you would have been covered under Section 3C leave till the first rejection and then the 28 day overstay and second successful application could have been disregarded.

So, I believe that the Home Office has come to the correct conclusion.

Also see Page 22 onwards of the Long Residence guidance.

Also, CR001 is correct in stating that for the purposes of LR applications, your clock starts ticking from the day of arrival in the UK, not from the date of visa entry.

For clarity's sake, I will rephrase the 28 day rule (as regards continuity of residence) in simple terms;

a) If an application is made within 28 days of expiry of granted leave and that application is successful, the overstay is disregarded for the purpose of an ILR (LR) application.

b) If an application is made before the expiry of granted leave and is rejected after the expiry of granted leave, the person is on Section 3C leave between the end of granted leave and the day of such rejection. S/he can make a further application within 28 days of the rejection and if that succeeds, the overstay is disregarded.

c) If the applicant left the UK before the expiry of granted leave and returned within 180 days, either on a renewal or on a different entry clearance, continuity of residence is not considered broken.

d) Else, any overstay will constitute break in continuity of residence.

I request moderators and other respected gurus and other commentators (such as Richard W) for feedback on this interpretation.

I accept CR001's view that the application was made too early, it was also correctly refused, contrary to what i had said.

You applied after the 31 May visa had expired.

If that application had succeed, then you would have had a right of appeal, and Section 3C would have applied.

I accept now that from 1 June, till September, you had no leave.

You should have applied on or before the 31-05-2009, and you would have been ok, even if they had refused on maintenance, you would nevertheless have had a right of appeal.

appreciate your response on this guys. does into appeal makes any sense, if there are no gray areas and the situation is black and white?

I sympathise with your situation and the money you would have lost in this process, and I feel you may be entitled to ask the tribunal to exercise discretion in your case. The Secretary of state does provide for exercise of discretion under the rules.

Do you currently have leave to remain ?

I must concur that prospect of success is not very high, possibly about 50/50.

Would you qualify for ILR under Tier 2 General (salary requirements et al) in April 2017? If so, I would say that you are better off waiting for that. It is only 8 months away.

I am agree with friends you lucky you have another way as well go for ilr means tier 2