Break in 10 Years?

See also Ahmed, R (on the application of) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 10 (23 October 2018).

vinny wrote: ↑

Sun Jan 13, 2019 11:46 am

See also Ahmed, R (on the application of) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 10 (23 October 2018).

I understand the claim /appeal was dismissed and home office won the case. Right vinny?

This case was based on the rules in place before Nov 2016 changes (so no paragraph 39E)
However I think this ruling kind of implies that the discretions appearing in the rules for disregarding the periods of overstaying somehow are 'unlawful' despite the fact that the rules clearly allow periods of overstaying to be disregarded if an applicant applied for a new application as an overstayer within a set time. This line from the judgment was kinda bizarre:

There is no arguable merit that the Applicant was to be treated, for the purposes of paragraph 276B, as if he had leave to remain and thus to be in “ lawful residence ”; nor in the contention that the Respondent’s construction would lead to starkly unfair results to applicants. Rather, it is readily foreseeable that if applicants were to be so treated, it would create fertile ground for the abuse of the system.

But that is not the argument at all. I am not sure why the applicant's lawyer even argued that an overstayer is lawfully present here
I think the lawyer for the applicant should have argued that the lawful residence requirement for long residence comes with some discretions, the obvious one being the fact that periods of overstaying waiting (here a period of unlawful residence) for an application made within 28 days of becoming an overstayer shall be disregarded as per rules, which has been a marker for fairness in the rules and no fertile ground for abuse of the system.

Sunny024 wrote: ↑

Sun Jan 13, 2019 2:49 pm

vinny wrote: ↑

Sun Jan 13, 2019 11:46 am

See also Ahmed, R (on the application of) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 10 (23 October 2018).

I understand the claim /appeal was dismissed and home office won the case. Right vinny?

hi Sunny, on this basis we are wrong? i am too confused man.

i don't understand what is going on and where we are on this matter.

can anyone help or clear my confusion?

thank you.

I'm confused too like everyone, I think it depends on how the judge gets it. 39e can't work any other way. What's the point of allowing you to make an application and refusing because you been Overstating? 39e is an exemption, it doesn't say subsequent leave has to be granted if you use 39e.

When is your hearing anyway?

See also Discussion.

vinny wrote: ↑

Tue Jan 15, 2019 12:56 am

See also Discussion.

Thank you vinny

Sunny024 wrote: ↑

Tue Jan 15, 2019 3:51 am

vinny wrote: ↑

Tue Jan 15, 2019 12:56 am

See also Discussion.

Thank you vinny

hi Vinny and Sunny,

did this decision come in favor of the appellant?

thank you.

It was reverted back to lower from upper tribunal.judge accepted there was an error .

Sunny024 wrote: ↑

Wed Jan 16, 2019 12:04 am

It was reverted back to lower from upper tribunal.judge accepted there was an error .

thank you Sunny,

please see below its bit old but still relevant

https://www.bailii.org/cgi-bin/format.c ... AND+(2515)

thank you.

shah_143 wrote: ↑

Wed Jan 16, 2019 12:49 pm

Sunny024 wrote: ↑

Wed Jan 16, 2019 12:04 am

It was reverted back to lower from upper tribunal.judge accepted there was an error .

thank you Sunny,

please see below its bit old but still relevant

https://www.bailii.org/cgi-bin/format.c ... AND+(2515)

thank you.

Hello friends in above post. This decision from UTT is very technical and complex. we should not be worry about it as his second gap was not according to per rules of 39e. also it was previous overstaying not current overstaying. in my understanding all in this thread of posts we have "current period of overstaying". therefore we will be ok hopefully.

https://www.bailii.org/uk/cases/UKUT/IAC/2018/10.html

The UT says that exception for overstayers in Rule 276B(v) (28/14 days overstaying) does not help a person who has no 10 years continuous and lawful residence in the UK under Rule 276B(i). I appeared for the Home Secretary: Ahmed [2019] UKUT 00010 (IAC)

This case has been reported by UT that means UT is bound to take all39e related case decisions on Basis of this case decision. this is end of the road in UT but can be challenged in court of appeal
I spoke personally to a very prominent barrister and he confirmed me this .

Thanks Sunny024,
This explain why perhaps in my meeting the barrister did not bring up that 39E applied in my case, I actually asked him specifically and let's see what he says. Then some people get it from HO with out any problem when they have gaps of overstaying. And also what about current period???? all of us are here applied within 14 days of AR exhausted/refusal and then varied to ILR LR. This is what solicitors are plainly advising to do. then they are telling case worker has done a mistake???? Let's see how the UT judge view it in your case and please update us. Good luck.

I can confirm Ahmad vs sec of case UT decision has been challenged in court of appeal by Ahmad

Sunny024 wrote: ↑

Mon Jan 21, 2019 3:06 am

I can confirm Ahmad vs sec of case UT decision has been challenged in court of appeal by Ahmad

Hi Sunny! Do you know whether Ahmad has been granted permission to go to the Court of Appeal. If yes when is the hearing date?

He withdraw his appeal unfortunately!!

Sunny024 wrote: ↑

Sun Feb 10, 2019 7:11 pm

He withdraw his appeal unfortunately!!

what stage is ur case now? have u got ur decision or u still waiting. In my UT hearing (which was on the 8th of January, and Ahmed J decision yet not reported/published then) the judge has remit my case to FTT for hearing again. there is no talk or refrence of Ahmed case in my decision but i m afraid that when i would go to FTT hearing in coming months this Precedent reported case may prove fatal to my case or anybodys case like me. i don't know what argument can one make against it. and in my situation paragraph 39e "current overstay period disregarding" is the only remedy. i had been fighting home office unfair refusals already and now this problem.

i don't wanna smother you but Sunny is there any way we can contact each other via phone. i don't know whether this forum will let me share my number or email here.

Cattak wrote: ↑

Mon Feb 11, 2019 2:18 am

Sunny024 wrote: ↑

Sun Feb 10, 2019 7:11 pm

He withdraw his appeal unfortunately!!

what stage is ur case now? have u got ur decision or u still waiting. In my UT hearing (which was on the 8th of January, and Ahmed J decision yet not reported/published then) the judge has remit my case to FTT for hearing again. there is no talk or refrence of Ahmed case in my decision but i m afraid that when i would go to FTT hearing in coming months this Precedent reported case may prove fatal to my case or anybodys case like me. i don't know what argument can one make against it. and in my situation paragraph 39e "current overstay period disregarding" is the only remedy. i had been fighting home office unfair refusals already and now this problem.

i don't wanna smother you but Sunny is there any way we can contact each other via phone. i don't know whether this forum will let me share my number or email here.

This is not permitted. Any such details will be removed. Post iquestions etc n public so that all may benefit and all can offer advice. Preferably start your own topic with your circumstances or continue in one you have rather than tagging onto another users thread.

sorry i was not familiar with the rules

We are in a very darn situation due to "Ahmed reported case". This is the only case law on current overstay period and will be for a long time unless any applicant successfully challenge the argument in it in higher courts other than FTT.
I spoke to my representative today and he said there is no simple way out around it. the only way is to successfully argue against it and engage the 276b v (current period) with 276b a "continuous lawful residence" once again into its original meaning. They both may be freestanding rules in the 276b but former is defined as an exception in the immigration rules so that the immigration rules remain fair for the purpose of deciding applications made outside time in a limited time 14 0r 28.

For the reasons outlined above, your application is refused under Paragraph 276D with reference to Paragraph 276B(i)(a) of HC 395 (as amended) ”.

also please can anyone send me the link to HC 395. I can't find on my search.

Hi Cattak,

My SET LR also refused under same rule. Please keep posted your hearing date and appeal response. Any chance this case to consider under Human Rights rule?

Thanks

Cattak wrote: ↑

Mon Feb 11, 2019 8:20 pm

We are in a very darn situation due to "Ahmed reported case". This is the only case law on current overstay period and will be for a long time unless any applicant successfully challenge the argument in it in higher courts other than FTT.
I spoke to my representative today and he said there is no simple way out around it. the only way is to successfully argue against it and engage the 276b v (current period) with 276b a "continuous lawful residence" once again into its original meaning. They both may be freestanding rules in the 276b but former is defined as an exception in the immigration rules so that the immigration rules remain fair for the purpose of deciding applications made outside time in a limited time 14 0r 28.

For the reasons outlined above, your application is refused under Paragraph 276D with reference to Paragraph 276B(i)(a) of HC 395 (as amended) ”.

also please can anyone send me the link to HC 395. I can't find on my search.

Hi All,

My Set (LR) application is refused too because of Ahmad case. I am in the process of JR. Thought to share this with you guys.

Don’t go for JR ,Ahmad case was reported on judgement from JR,similar case will be refused too.
Did you not get appeal rights ?

Hi Sunny024

My Set Lr refused with appeal rights due to out of time application.

Reason for refusal says:
The Tier 2 General Migrant application refused on 20 march 2018 with the right to an Administrative review .You did not apply for an Administrative review. It is therefore consider that your period of valid leave to remain ended on 20 march 2018. As you arrived in the UK on 19 October 2008 you did not have 10 years lawful residence at that point.
On 26 March 2018 you applied out of time for leave to remain on the basis of your family and private life. You varied the application on 24 September 2018to as application for Indefinite leave to remain on the basis of 10 years lawful residence. As your application was submitted within 14days of the previous refusal decision on 20 March 2018 you meet the requirements of paragraph 276B(v). However, It should be noted that any time spent awaiting the decision on an out of time application is not consider a period of lawful leave to remain for the purpose of continuous residence. As noted above you had valid leave to remain until 20 March 2018 and did not have 10 years lawful residence at that point. As such your period of continuous lawful residence is considered to have been broken at this point.Therefore, you have not demonstrated 10 years continuous lawful residence and cannot satisfy the requirement of paragraph 276B(I)(a).

For the reason outlined above, your application for indefinite leave to remain on the ground of long residenceis refused as you have failed to meet the requirement of the Immigration Rule Under paragraph 276D with reference to paragraph 276B(i)(a) of HC395 (as amended).

I am preparing appeal ground, please suggest me how can I proceed.

Thanks

Ahmad decision was reported that means your appeal will be dismissed in lower and upper tribunal as they are bound by Ahmad decision,only way is to take it to court of appeal and argue ,but it will be a long road ahead