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ILR 10 years lawful residence and paragraph 39E

Only for queries regarding Indefinite Leave to Remain (ILR). Please use the EU Settlement Scheme forum for queries about settled status under Appendix EU

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Sunny024
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Re: ILR 10 years lawful resident and paragraph 39E

Post by Sunny024 » Tue Sep 14, 2021 11:42 am

Any update on ahmed case law ?

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zimba
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Re: ILR 10 years lawful resident and paragraph 39E

Post by zimba » Mon Sep 20, 2021 1:56 am

Sunny024 wrote:
Tue Sep 14, 2021 11:42 am
Any update on ahmed case law ?
Case results:
Refused on 30-Jul-21

30-Jul-21: Case given a final judgment
30-Jul-21: Case given a decision on paper
15-Jun-21: Application referred to Lord/Lady Justice
04-Apr-19: Bundle(s) approved
09-Jan-19: Letter sent to applicant/solicitor to request bundles and/or documents

https://casetracker.justice.gov.uk/getD ... d=20182976
Advice is given based on my personal research and experience only. Do NOT contact me via private message for immigration advice

abbas514
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Re: ILR 10 years lawful resident and paragraph 39E

Post by abbas514 » Sat Dec 04, 2021 12:47 am

Hi All
Any body got ILR on 10 years route on current overstay
Or open ended case.
Is any update on case law Houq and others vs SSHD ???
Thanks All

yhm75
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Re: ILR 10 years lawful resident and paragraph 39E

Post by yhm75 » Wed Dec 29, 2021 1:22 am

long residence new decision about overstay 17 December 2021

http://www.bailii.org/ew/cases/EWCA/Civ/2021/1909.html

yhm75
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Re: ILR 10 years lawful resident and paragraph 39E

Post by yhm75 » Wed Dec 29, 2021 1:30 am

latest judgment from the Court of Appeal on 276B, Afzal, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 1909 (17 December 2021) which looks at disregarded overstaying, invalid applications, section 3C leave and 39E. This is an important judgment which disagrees with Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 and Muneeb Asif v Secretary of State for the Home Department [2021] UKUT 00096 in respect of disregarded periods of overstaying counting towards the calculation of the requisite ten years continuous lawful residence.

http://www.bailii.org/ew/cases/EWCA/Civ/2021/1909.html

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Re: ILR 10 years lawful resident and paragraph 39E

Post by vinny » Wed Dec 29, 2021 11:57 pm

See also Freemovement’s analysis of Afzal.
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Re: ILR 10 years lawful resident and paragraph 39E

Post by vinny » Thu Dec 30, 2021 12:29 am

Some observations.

Breaking continuous residence
CR 4.1. An applicant’s continuous residence period will be broken if any of the following apply:
  • (d) the applicant does not have permission, unless:
    • (i) the applicant made a successful application for permission to stay under the circumstances set out in paragraph 39E of Part 1 of these rules; or
    • (ii) the applicant had permission when they left the UK, applied for entry clearance before that permission expired, or within 14 days of that permission expiring, and that application for entry clearance was successful; or
    • (iii) CR 4.2. applies; or


CR 4.2. Any period without permission under CR 4.1.(d) which occurred before the applicant made a successful application for permission before 24 November 2016 will break the continuous residence period unless:
  • (a) the applicant made a successful application for permission (either in or outside the UK) within 28 days of the date their previous permission expired: or
  • (b) the applicant had permission when they left the UK, applied for entry clearance before that permission expired and that application for entry clearance was successful.
CR 4.3. Where CR 4.1(d)(i), (ii) or (iii) applies, the periods of time where the applicant did not have permission will not count when calculating the continuous residence period.
80
More recent evidence casts further doubt about whether the Secretary of State did understand the Rules to allow para.39E periods of overstaying to be counted. We were shown at the hearing a recent Immigration Rules Appendix on Continuous Residence. It applies to certain categories of worker only. The explanatory memorandum says that it is not changing existing requirements but clarifying them. I will not set out all the relevant paragraphs, but in essence paras.C4.1 and C.4.3 provide that a para.39E period of overstaying will not break continuity of residence but nor will it count when calculating the continuous residence period. We did not hear argument about this document, and I do not put much weight on it. Suffice it to say that quite independently of it, I take the view that the rules do not allow the para.39E period of overstaying to count when deciding whether the ten year period has accrued, and if my understanding of this Appendix is right, it appears to lend further support to my conclusion.
However, 15
(6) Fifth, by contrast, there are examples elsewhere in the Rules expressly providing that "continuous periods" of lawful residence in the UK shall be considered "unbroken", notwithstanding periods of overstaying, where paragraph 39E applies. There are to be found in specific areas where such an exception was clearly intended, e.g. Appendix ECAA relating to ECAA Nationals and settlement and e.g. Part 6A of the Rules in relation to the Points Based System. Part 6A provides as follows (emphasis added):
"Part 6A

Points-based system


245AAA. General requirements for indefinite leave to remain

The following rules apply to all requirements for indefinite leave to remain in Part 6A and Appendix A:

(a) References to a "continuous period" "lawfully in the UK" means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
  • (iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of the expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied. …" (emphasis added)
Also, repeated in Hoque, Mr Gill had referred to parallel rules that apparently did/do allow the para.39E period of overstaying to count when deciding whether the five year period has accrued:

85
Finally, Mr Gill referred us to the parallel rules governing ILR under the "points based system". There the Rules provide (in para. 245 AAA (a)) a definition of
References to "continuous period" "lawfully in the UK" [as meaning] … residence in the UK for an unbroken period with valid leave and a period shall be considered unbroken where: …

(iii) The applicant has any current period of overstaying disregarded where paragraph 39E of these Rules applies; and

(iv) the applicant has any previous period of overstaying between periods of leave disregarded where: the further application was made before 24 November 2016 and within 28 days of expiry of leave; or the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.
86
In Masum Ahmed at 15(6) the court referred to these provisions as being a contrast to para. 276B where "…the Rules expressly [provide] that 'continuous periods' of lawful residence in the UK shall be considered 'unbroken', notwithstanding periods of overstaying, where paragraph 39E applies". The court's quotation of para. 245AAA(a) includes sub-para. (iv), but not (iii). This is perhaps understandable as that case concerned periods of previous overstaying between periods of leave. However, to me, this provision does not show a contrast with para. 276B at all. It is a similarity. It makes similar provision for "disregards" of both types of overstaying ("current" and "previous", without distinguishing between the two). I see no difference in para. 276B.
If CR 4.3 contradicts 245AAA(a), then it changed existing requirements. Then the explanatory memorandum 7.208
Appendix Continuous Residence sets out how the continuous residence requirement for settlement applications is met. It does not change existing requirements, but clarifies:
is misleading? Then I think any retrospective adoption of CR 4.3 prior to CR 4.3’s birth may be contrary to the provisions:
In relation to the changes above which take effect at 9am on 1 December 2020, if an application for entry clearance, leave to enter or leave to remain has been made before 9am on 1 December 2020, the application will be decided in accordance with the Immigration Rules in force on 30 November 2020.
and inconsistent?

Then the game changing conflicts in the rules may lead to problems akin to Edgehill, Haleemudeen and Singh.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

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Legend1
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Re: ILR 10 years lawful resident and paragraph 39E

Post by Legend1 » Tue Feb 01, 2022 1:00 am

Hi ,
according to this new caselaw of Dec2021, someone with Gap in 10 years in accordance with 39 E, suppose for 18 months, and applicant has spent 11 years and 6 months and apply for ILR (LR) now will this Afzal's caselaw help ? i know Afzal went to cahllenge the deciosn in High Court but as of now its helpful in the above senerio with gap in 10 years residence ? or most probably the applicant, application will be on hold until the afzal outcomes from High Court ?

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Re: ILR 10 years lawful residence and paragraph 39E

Post by Legend1 » Thu Apr 14, 2022 11:43 pm

Hi Mods and respected seniors,
will anyone assist on Afzal caselaw on Long residency Dec 2021 . The decion state
that the appellant had not, by the date of the decision, completed ten years’ continuous lawful residence. There was a gap between 22 November 2017 and 5 September 2019 which, whilst it did not break the period of lawful residence, could not in my view count towards the calculation of the requisite ten years continuous lawful residence. In fact the appellant will have built up that period by now
the gap was 22/11/2017 to 5/9/2019 , if we calculate the Gap which was approx 20 months.
for example if Afzal apply now while he already have spent that 20 months on top of the 10 years legally, will he be eligible now for ILR LR ?

thanks in advance

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zimba
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Re: ILR 10 years lawful residence and paragraph 39E

Post by zimba » Thu Mar 14, 2024 2:58 pm

Disregarded periods under paragraph 39E will be excluded as lawful residence under the long residence route

STATEMENT OF CHANGES IN IMMIGRATION RULES, March 2024 (HC590)
LR 11.2. The following periods will not count towards the qualifying period for Long Residence:
(a) time spent on immigration bail, temporary admission or temporary release; and
(b) any period of overstaying between periods of permission before 24 November 2016 even if a further application was made within 28 days of the expiry of the previous permission; and
(c) any period of overstaying between periods of permission on or after 24 November 2016 even if paragraph 39E applies to that period of overstaying;
and
(d) any current period of overstaying where paragraph 39E applies.
https://assets.publishing.service.gov.u ... sible_.pdf
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mjkiajy2
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Re: ILR 10 years lawful residence and paragraph 39E

Post by mjkiajy2 » Sun Mar 17, 2024 12:25 am

Hi,

I have two questions regarding to the recent changes for 10yr ILR.

LR 11.3. Subject to LR 11.4, the applicant must have had permission on their current immigration route for at least 12 months on the date of application, or have been exempt from immigration control in the 12 months immediately before the date of application.

If I am currently on a skilled worker visa but will change my sponsor shortly, by having separate visa, do they count as different immigration route or the same immigration route.

After paragraph 39E(4), insert: “(5) the period of overstaying:
(a) is between 1 September 2020 and 28 February 2023; and (b)is covered by an exceptional assurance.
39F. For the purpose of paragraph 39E(5), “exceptional assurance” means a written notice given to a person by the Home Office stating that they would not be considered an overstayer for the period specified in the notice.”.


Does the above mean that if I have had exceptional assurance before, it now counts as overstaying and I will need to stay for extra period to make up the 10yr lawful stay?

Thanks in advance,
Janet

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zimba
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Re: ILR 10 years lawful residence and paragraph 39E

Post by zimba » Sat Mar 23, 2024 3:27 pm

indefinite-leave-to-remain/ilr-long-res ... l#p2154232

Exceptional assurance did NOT grant any leave but this new change means that NO time spent under paragraph 39E counts under the long residence rules. This means ANY period without valid leave will not be counted as lawful residence
Advice is given based on my personal research and experience only. Do NOT contact me via private message for immigration advice

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