Complex ILR /LR case

[Busymum3]

Please my sister needs your advice on what to do. please read about her problem below. Sorry it's long.

My sister has 2 children both British oldest is 9 years.
17/09/2006 – my sister arrived in the UK on a student visa. LTE granted until 31/12/2009
- 04/11/2009 – made a Post study leave application, this was refused on 02/12/2009.
The refusal was the first wrongful one given that SSHD based the same on the alleged Basis that
her degree from Oral Roberts University was not acceptable.
(The same degree was subsequently certified by NARIC as a qualifying degree. However, this did not
affect her continuous lawful residence given that she still had existing leave to remain valid till
31/12/2009.
- 29/12/2009 – applied for extension of her leave under Tier 4. The application was granted
on 06/02/2010 until 31/05/2011.
- 30/05/2011 – applied for extension of her Student visa. Her application was refused on
15/06/2011 on the basis that she did not pass the English test however she had provided her
Degree Certificate from Oral Roberts University which was disregarded erroneously by the
SSHD (the effect of which meant she did not even need to have sat the English test) –
This formed the 2nd erroneous/unfair negative decision. She however exercised her appeal rights
which was lodged an in-time to the First Tier Tribunal.
- 05/09/2011- Her appeal was dismissed by the First Tier Tribunal. She exercised her right of appeal
by lodging an in-time appeal to the First Tier Tribunal for permission to appeal to the Upper
Tribunal.
- 28/09/2011 – First Tier Tribunal refused permission to appeal to the Upper Tribunal. She
again lodged an in-time appeal to the upper Tribunal for permission to appeal to the Upper Tribunal.
- 08/02/2012 - The Upper Tribunal refused permission to appeal. By operation of the Immigration Act,
NIAA and the Immigration and Asylum Tribunal Procedure Act, our client‟s lawful and continuous
stay in the UK carried on by virtue of s.3D from 15/06/2011 (refusal of her tier 4
extension/application by the SSHD) until 11/03/2012 (28 days after the Upper Tribunal refused her
permission application.
Her appeal rights (to the Court of Appeal) was
triggered by the refusal from the Upper, the deadline of which was 28 days from the date of
the Upper tribunal decision.
Following from the above, it is established that my sister s.3D leave was not exhausted until
11/03/2012.
However, she aborted her plans to appeal due to health challenges, and also given that
she became qualified under appendix FM and she chose to rather channel her funds and efforts towardsthe preparation /collation of necessary documentary evidence for the FM application which was lodged
using form FLR(FP) on 27/03/2012.
My sister therefore appears to have overstayed for a period of 16 days.
*************
However, given that this overstay period is less than 28 days, I think she's entitled to have the samedisregarded under paragraph 39E?? and the usual practice/policy of the SSHD.??
- 27/03/2012 - she later lodged her FLR(FP) application
- 22/04/2013 – SSHD initially refused the application (erroneously/unfairly) but subsequently acknowledged their error and withdrew the refusal decision on 25/03/2014 (after a Judicial Review application) .
This formed the 3rd erroneous refusal by the
SSHD. *** Please correct me if I'm wrong...
She needs help.

- 14/05/2016 – SSHD granted her application upon reconsideration. She was granted
leave to remain for 30 months until 14/11/2016.

It follows from the forgoing that her
application of 27/03/2012 made her residence in the UK lawful. Right??
from the same date (of the
application) till the grant of status on 14/05/2016 and her subsequent extension application thereafterhad been lawful and continuous given that that the decision granted her some leave (albeit not the desired one).

14/11/2016 – she applied for ILR on the basis of her 10 year Lawful residence of form
SET(LR). The SSHD however refused the same alleging that our client had made an application “fora reason not covered by the immigration rules…”. The SSHD chose rather to grant her
further 30months under the 10 yr route.

HOME OFFICE REPLY :

Reasons you do not qualify for a grant of indefinite leave to remain
On 20 November 2019 you made an application for indefinite leave on the basis of
your long residence and your family/private life in the United Kingdom under the
Immigration Rules.
As a person seeking indefinite leave to remain on the basis of long residence you are
required to meet the requirements of Paragraph 276B, which states:
276B. The requirements to be met by an applicant for indefinite leave to remain on
the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United
Kingdom.
(ii) having regard to the public interest there are no reasons why it would be
undesirable for him to be given indefinite leave to remain on the ground of long
residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment
record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person’s behalf; and(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and
sufficient knowledge about life in the United Kingdom, in accordance with Appendix
KoLL.
(v) the applicant must not be in the UK in breach of
As per your immigration history above, you entered the UK on 17 September 2006.
This means you have resided in the UK for approximately 13 years and 8 months,
however not all your residence has been lawfully.
Continuous lawful residence is defined in the Immigration Rules at Paragraph 276A.
Those rules state, in part, that:
(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act (as previously in force), or
immigration bail within section 11 of the 1971 Act, where leave to enter or remain is
subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to
apply if it is immediately followed by a grant of leave to enter or remain.
In your case, although you entered the UK on 17 September 2006 with leave to
enter, your lawful leave ended when your appeal rights were exhausted on 8
February 2012, you were then allowed up to 8 March 2012, 28 days to submit a new
application. On 31 March 2012, you submitted a further application out of time on the
basis of your family and private life, this was refused on 22 April 2013, reconsidered
and leave to remain was granted from14 May 2014 until 14 November 2016.
Where an in-time application or in-time appeal are lodged, Section 3C of the 1971
Immigration Act will automatically extend existing leave if it is due to expire while a
decision or final appeal determination is pending. The salient point here is that s.3C
will only extend existing valid leave. Following the conclusion of your application on 8
February 2012, there was no valid leave for s.3C to extend. Therefore while you
submitted a valid application on 31 March 2012, it was out-of-time. Your continuous
lawful residence period could not then be extended by s.3C beyond this point.
Furthermore, you state you believe the Home Office are fleecing you as this is the
second time you have not been granted ILR. You state the long wait for your ILR has
impacted on your personal life negatively and affected you psychologically,
emotionally, financially, health-wise and spiritually. Although we sympathise with you, you do not meet the immigration rules to grant you ILR. For the reasons outlined above, your application for indefinite leave to remain on the grounds of long residence is refused as you have failed to meet the REQUIREMENTS.

HO never addressed all questions raised...writing to them twice, repeatedly told her to pay the £1000.
MY QUESTION PLEASE:-
1. What other steps can she take?
2. Should I tell her to give up and pay the NHS money? OR
3. go for Judicial Review? Court(does she stand a chance)
They said they will give her the 30month again if she pays the surcharge before 6th june.

Thank you for reading I know it's long. Really appreciate your generous help.

[zimba]

I think you are mistaken that your sister overstayed only 16 days in 2012. I am not sure where you get the idea that she had section 3C for up to 28 days after UT refused permission to appeal on 08/02/2012. As per Section 3C guide, her section 3C comes to an end when UT refused permission to appeal. She had 28 days to apply for a new application. By the time she applied, she was almost 50+ days out of time. So UKVI is correct that she overstayed between 08/02/2012 and 14/05/2016 when she regularised her stay again, a period of 4+ years.

[Busymum3]

Thank you for taking time out to comment. The 3c you're referring to was HO decision letter statement... Not me. I must have missed few dates... Most importantly what would advise her to do. Any other options?
Many Thanks
Have a safe Sunday.

[Busymum3]

Sorry just read the HO decision letter there are error in the dates. See below actual chronological dates. They made an error on the date so they wrote her last week they they apologise and have now amended it.

17/09/2006 – my sister arrived in the UK on a student visa. LTE granted until 31/12/2009
- 04/11/2009 – made a Post study leave application, this was refused on 02/12/2009.
The refusal was the first wrongful one given that SSHD based the same on the alleged Basis that
her degree from Oral Roberts University was not acceptable.
(The same degree was subsequently certified by NARIC as a qualifying degree. However, this did not
affect her continuous lawful residence given that she still had existing leave to remain valid till
31/12/2009.
- 29/12/2009 – applied for extension of her leave under Tier 4. The application was granted
on 06/02/2010 until 31/05/2011.
- 30/05/2011 – applied for extension of her Student visa. Her application was refused on
15/06/2011 on the basis that she did not pass the English test however she had provided her
Degree Certificate from Oral Roberts University which was disregarded erroneously by the
SSHD (the effect of which meant she did not even need to have sat the English test) –
This formed the 2nd erroneous/unfair negative decision. She however exercised her appeal rights
which was lodged an in-time to the First Tier Tribunal.
- 05/09/2011- Her appeal was dismissed by the First Tier Tribunal. She exercised her right of appeal
by lodging an in-time appeal to the First Tier Tribunal for permission to appeal to the Upper
Tribunal.
- 28/09/2011 – First Tier Tribunal refused permission to appeal to the Upper Tribunal. She
again lodged an in-time appeal to the upper Tribunal for permission to appeal to the Upper Tribunal.
- 08/02/2012 - The Upper Tribunal refused permission to appeal. By operation of the Immigration Act,
NIAA and the Immigration and Asylum Tribunal Procedure Act, her lawful and continuous
stay in the UK carried on by virtue of s.3D from 15/06/2011 (refusal of her tier 4
extension/application by the SSHD) until 11/03/2012 (28 days after the Upper Tribunal refused her
permission application.
Her appeal rights (to the Court of Appeal) was
triggered by the refusal from the Upper, the deadline of which was 28 days from the date of
the Upper tribunal decision.
Following from the above, it is established that my sister s.3D leave was not exhausted until
11/03/2012.
However, she aborted her plans to appeal due to health challenges, and also given that
she became qualified under appendix FM and she chose to rather channel her funds and efforts towardsthe preparation /collation of necessary documentary evidence for the FM application which was lodged
using form FLR(FP) on 27/03/2012.
My sister therefore appears to have overstayed for a period of 16 days.
*************
However, given that this overstay period is less than 28 days, I think she's entitled to have the samedisregarded under paragraph 39E?? and the usual practice/policy of the SSHD.??
- 27/03/2012 - she later lodged her FLR(FP) application
- 22/04/2013 – SSHD initially refused the application (erroneously/unfairly) but subsequently acknowledged their error and withdrew the refusal decision on 25/03/2014 (after a Judicial Review application) .
This formed the 3rd erroneous refusal by the
SSHD. *** Please correct me if I'm wrong...
She needs help.

- 14/05/2016 – SSHD granted her application upon reconsideration. She was granted
leave to remain for 30 months until 14/11/2016.

It follows from the forgoing that her
application of 27/03/2012 made her residence in the UK lawful. Right??
from the same date (of the
application) till the grant of status on 14/05/2016 and her subsequent extension application thereafterhad been lawful and continuous given that that the decision granted her some leave (albeit not the desired one).

14/11/2016 – she applied for ILR on the basis of her 10 year Lawful residence of form
SET(LR). The SSHD however refused the same alleging that our client had made an application “fora reason not covered by the immigration rules…”. The SSHD chose rather to grant her
further 30months under the 10 yr route.
At the time of her case I think it's 3D.

[zimba]

You say my sister in some places and in some places it says client. What is going on ??!
I highlighted the part regarding 28 days. What makes you think her section 3C continued until 11/03/2012 ???
Why section 3D ??! On what basis there was a deadline of 28 days after UT refused permission ?! Didn't she exhaust her appeal rights by then? What do you mean that 'she aborted her plans to appeal due to health challenges' if she presumably exhausted her appeal rights then ??

Sorry just read the HO decision letter there are error in the dates. See below actual chronological dates. They made an error on the date so they wrote her last week they they apologise and have now amended it.

17/09/2006 – my sister arrived in the UK on a student visa. LTE granted until 31/12/2009
- 04/11/2009 – made a Post study leave application, this was refused on 02/12/2009.
The refusal was the first wrongful one given that SSHD based the same on the alleged Basis that
her degree from Oral Roberts University was not acceptable.
(The same degree was subsequently certified by NARIC as a qualifying degree. However, this did not
affect her continuous lawful residence given that she still had existing leave to remain valid till
31/12/2009.
- 29/12/2009 – applied for extension of her leave under Tier 4. The application was granted
on 06/02/2010 until 31/05/2011.
- 30/05/2011 – applied for extension of her Student visa. Her application was refused on
15/06/2011 on the basis that she did not pass the English test however she had provided her
Degree Certificate from Oral Roberts University which was disregarded erroneously by the
SSHD (the effect of which meant she did not even need to have sat the English test) –
This formed the 2nd erroneous/unfair negative decision. She however exercised her appeal rights
which was lodged an in-time to the First Tier Tribunal.
- 05/09/2011- Her appeal was dismissed by the First Tier Tribunal. She exercised her right of appeal
by lodging an in-time appeal to the First Tier Tribunal for permission to appeal to the Upper
Tribunal.
- 28/09/2011 – First Tier Tribunal refused permission to appeal to the Upper Tribunal. She
again lodged an in-time appeal to the upper Tribunal for permission to appeal to the Upper Tribunal.
- 08/02/2012 - The Upper Tribunal refused permission to appeal. By operation of the Immigration Act,
NIAA and the Immigration and Asylum Tribunal Procedure Act, her lawful and continuous
stay in the UK carried on by virtue of s.3D from 15/06/2011 (refusal of her tier 4
extension/application by the SSHD) until 11/03/2012 (28 days after the Upper Tribunal refused her
permission application.
Her appeal rights (to the Court of Appeal) was
triggered by the refusal from the Upper, the deadline of which was 28 days from the date of
the Upper tribunal decision.
Following from the above, it is established that my sister s.3D leave was not exhausted until
11/03/2012.
However, she aborted her plans to appeal due to health challenges, and also given that
she became qualified under appendix FM and she chose to rather channel her funds and efforts towardsthe preparation /collation of necessary documentary evidence for the FM application which was lodged
using form FLR(FP) on 27/03/2012.
My sister therefore appears to have overstayed for a period of 16 days.
*************
However, given that this overstay period is less than 28 days, I think she's entitled to have the samedisregarded under paragraph 39E?? and the usual practice/policy of the SSHD.??
- 27/03/2012 - she later lodged her FLR(FP) application
- 22/04/2013 – SSHD initially refused the application (erroneously/unfairly) but subsequently acknowledged their error and withdrew the refusal decision on 25/03/2014 (after a Judicial Review application) .
This formed the 3rd erroneous refusal by the
SSHD. *** Please correct me if I'm wrong...
She needs help.

- 14/05/2016 – SSHD granted her application upon reconsideration. She was granted
leave to remain for 30 months until 14/11/2016.

It follows from the forgoing that her
application of 27/03/2012 made her residence in the UK lawful. Right??
from the same date (of the
application) till the grant of status on 14/05/2016 and her subsequent extension application thereafterhad been lawful and continuous given that that the decision granted her some leave (albeit not the desired one).

14/11/2016 – she applied for ILR on the basis of her 10 year Lawful residence of form
SET(LR). The SSHD however refused the same alleging that our client had made an application “fora reason not covered by the immigration rules…”. The SSHD chose rather to grant her
further 30months under the 10 yr route.
At the time of her case I think it's 3D.

[Busymum3]

I understand the confusion, please don't jump in to conclusion. Someone like yourself came to her aid from church... helped to write the cover letters to HO because we could not afford a lawyer. So we did a lot of amendments and reading wherever needed to be done to do it ourselves. However, not every help last Covid-19 struck and Our help was gone. One of the instructions that was given is to join this platform if we need further help. Thanks

[Busymum3]

You say my sister in some places and in some places it says client. What is going on ??!
I have responded to this.

I highlighted the part regarding 28 days. What makes you think her section 3C continued until 11/03/2012 ???
If not, just trying to clarify the days total in question. What she's trying to put across is if the HO accepted her degree back then as they did now, she won't have the problem now. Is HO counting from 8th Feb 2012 to 27 March 2012??
So she takes 28 days from above date. Is that right?

Why section 3D ??! On what basis there was a deadline of 28 days after UT refused permission ?!
Didn't she exhaust her appeal rights by then? is this not right then? she was told 3D was in place at the time she this problem was going on.... I'm guessing by your respond this is wrong?
Yes there was a deadline. We're not professional just trying to do it ourselves I just hope we haven't made a mess of it. She thinks the 28days should be counted from the last UT knockdown, is that right?

What do you mean that 'she aborted her plans to appeal due to health challenges' if she presumably exhausted her appeal rights then ??
Apply.... She put in a fresh application after the the last UT refused using the FM application which was lodged using form FLR(FP) on 27/03/2012.
We just need guidance please, probably made a mess doing it ourselves. Where can we go from here. Thank you.

[Busymum3]

Also is it possible... She wants HO to respond to the past errors. Because the gap happened because they did not accept her school of study ponit in 2009 for the post study work application??

They did not accept the degree for the English test 2011/2012 even though NARIC certificate was presented to them. However, same certificate was accepted and acknowledged subsequence applications.??

There won't be any need for UT, I remember when they asked her to do the English test then she presented her degree she studied here in the UK, she sat for that test 4 weeks after she had her first child.
This problem and gap in question was created by HO is it right to say that?
Thanks

[Busymum3]

Diffrent question please.
Can she get indefinitely leave using her 9 years old, he will be 10 next year April.
Many Thanks

[zimba]

Also is it possible... She wants HO to respond to the past errors. Because the gap happened because they did not accept her school of study ponit in 2009 for the post study work application??

They did not accept the degree for the English test 2011/2012 even though NARIC certificate was presented to them. However, same certificate was accepted and acknowledged subsequence applications.??

There won't be any need for UT, I remember when they asked her to do the English test then she presented her degree she studied here in the UK, she sat for that test 4 weeks after she had her first child.
This problem and gap in question was created by HO is it right to say that?
Thanks

That is not how the rules work. If FTT and UT saw no legal basis for her claims, this means the UKVI was correct as per rules in place when the decision was made. If UKVI later accepted such a degree (I am not sure maybe due to changes in the rules) then that does not mean the previous decision made is invalidated. Long residence is based on continuous lawful residence in the UK which she does not have due to her gap in 2012.
He section 3C ended when UT refused permission to appeal in Feb 2012. She should have applied within 28 days of becoming an overstayer to benefit from discretion under paragraph 39E but she did not. She applied after more than 50 days, at the end of March 2012 and breaking her continuous leave, even though her application was successful.

There is a 7-year rule for ILR based on but it is very difficult to get ILR under that basis: https://www.freemovement.org.uk/can-chi ... residence/

What is the status of her spouse/partner ?!

[Busymum3]

There was no change in law, she asked them to look at the NARIC certificate provided. The case worker omitted that.

UT refused 8/2/2012
New application went in 27/3/2012
Please is this where the gap is? Just trying find the gap?

Can the 3d work for her because it says on the article you attached it says cases before 2015?? Hope I read it right...

Not with partner anymore still sees because they have 2 British children together.

Are there any rule of law that can be applied to the mess created.
Many Thanks

[Busymum3]

She just sent me this..
Immigration History
entered the UK on 17 September 2006 with entry clearance as a student,
visa valid from 21 August 2006 until 31 December 2009
 4 November 2009 T1 HS (Post study) application submitted in time – Leave to
remain (LTR) was refused on 2 December 2009
 29 December 2009 Tier 4 general student application submitted – LTR was
granted from 16 February 2010 until 31 May 2011
 30 May 2011 Tier 4 general student application submitted in time as a Tier 4
general student -LTR was refused on 15 June 2011, you submitted an appeal
on 30 June 2011 which was dismissed and your appeal rights were exhausted
on 8 February 2012
 31 March 2012 Family/Private life application submitted – this was refused on
22 April 2013, your application was reconsidered and granted LTR from 14
May 2014 until 14 November 2016
 10 November 2016 Outside the rules application submitted in time - this was
refused ILR and granted LTR from 24 May 2017 until 24 November 2019

[Busymum3]

Is it safe to say 3C applies when application is pending, 3D applies when appeal is pending.

It was appeal that was pending right?

[zimba]

There was no change in law, she asked them to look at the NARIC certificate provided. The case worker omitted that.

UT refused 8/2/2012
New application went in 27/3/2012
Please is this where the gap is? Just trying find the gap?

Can the 3d work for her because it says on the article you attached it says cases before 2015?? Hope I read it right...

Not with partner anymore still sees because they have 2 British children together.

Are there any rule of law that can be applied to the mess created.
Many Thanks

My question is why the appeal failed if this was so obvious ???! The appeal process allows the NARIC to be considered. Why her appeal failed ?! You still have not answered that.

I already explained where there is a gap. Section 3D applies only when a leave was curtailed (not when a leave expired after a pending application). Section 3D does not apply at all. Read the guide I linked above.

She should pay the IHS and accept a new extension

[Busymum3]

Thanks
My question is why the appeal failed if this was so obvious ???! The appeal process allows the NARIC to be considered. Why her appeal failed ?! You still have not answered that.
I don't know to be honest with you. There was no reason the evidence was clear. That was why she went back to UT came back as no arguable error, she did the process herself.
Thanks for your time.

[CR001]

Thanks
My question is why the appeal failed if this was so obvious ???! The appeal process allows the NARIC to be considered. Why her appeal failed ?! You still have not answered that.
I don't know to be honest with you. There was no reason the evidence was clear. That was why she went back to UT came back as no arguable error, she did the process herself.
Thanks for your time.

How do you expect a group of strangers on an internet forum to know why your friends appeal failed?? We have no insight into her case and case files and you are providing third hand information on behalf of another person. She would have received a letter detailing everything. Suggests she find it and read it.

[Busymum3]

I'm not expecting stranger to have the ability to look at the past. However, I'm really grateful for the advice so far.
She found the documents not sure how to attach it on this platform.
Quote from the letter...
ground of refusal...
She did not pass the test, even though she mentioned her degree to cover the point because her overall score was not 52. Even though if the respond ant is obliged to check it still does not demonstrate any error not sure the degree is equivalent to UK degree.
Grand 3 in the letter... Does not raise an arguable error of law, the applicant has sought to obtain report from NARIC, this was not before the IJ and does not even itself as yet demonstrate the equivalent of Bachelor degree.

I can't type it out it's a lot. I typed above out. How can I post the screenshot please. Thanks not sure if above makes any sense.
Many Thanks

[zimba]

I'm not expecting stranger to have the ability to look at the past. However, I'm really grateful for the advice so far.
She found the documents not sure how to attach it on this platform.
Quote from the letter...
ground of refusal...
She did not pass the test, even though she mentioned her degree to cover the point because her overall score was not 52. Even though if the respond ant is obliged to check it still does not demonstrate any error not sure the degree is equivalent to UK degree.
Grand 3 in the letter... Does not raise an arguable error of law, the applicant has sought to obtain report from NARIC, this was not before the IJ and does not even itself as yet demonstrate the equivalent of Bachelor degree.

I can't type it out it's a lot. I typed above out. How can I post the screenshot please. Thanks not sure if above makes any sense.
Many Thanks

So she submitted a NARIC evaluation but her degree was not of a UK Bachelor’s equivalent ?
What was her English level evaluated under CEFR (A1, A2, B1, B2, ... ) ??
Are you aware that Tier 4 visa always had a higher English language requirement than let's say family visa ?

[Busymum3]

It's not easy what you guys are doing... Helping lots of people on a single platform. Thank I'm grateful.
I know...
It is equivalent to British degree. The NARIC certificate clearly states that its equivalent. She was required to provide the NARIC and she did. The IJ states he's not sure if it equivalent even after presenting the evidence.

Can all this be trash out on the Judicial Review?
The fact is she was made to seat for the test while eating for the equivalent confirmation.

[zimba]

It is still not clear if she provided NARIC during appeal or not. It seems it was never provided to the FTT judge during the appeal process. I asked that out of my own curiosity but it will not help her ILR at all. If the appeal failed in 2012, you cannot go back and review it again now. It's been done and dusted. Judicial Review against what ? The decision to refuse ILR is still correct and lawful given that her continuous stay was broken.