Despite the warning from the Court of Appeal, the new Long Residence Guidance published for Home Office staff on 28 October 2019
https://assets.publishing.service.gov.u ... 6.0ext.pdf maintains the long-standing application of paragraph 276B. For example, on page 16 it states under ‘Gaps in lawful residence’:
You may grant the application if an applicant:
has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days where those gaps end before 24 November 2016
has short gaps in lawful residence on or after 24 November 2016 but leave was granted in accordance with paragraph 39E of the Immigration Rules
meets all the other requirements for lawful residence
The examples of gaps in lawful residence are also helpful:
Example 1
An applicant has a single gap in their lawful residence due to submitting an application 17 days out of time. All other applications have been submitted in time, throughout the 10 years period.
Question Would you grant the application in this case?
Answer Grant the application as the rules allow for a period of overstaying of 28 days or less when that period ends before 24 November 2016
Example 2
An applicant has 3 gaps in their lawful residence due to submitting 3 separate applications out of time. These were 9, 17 and 24 days out of time. Question Would you grant the application in this case?
Answer Yes. Grant the application as the rules allow for periods of overstaying of 28 days or less when that period ends before 24 November 2016.
Still with updated guidance, if the Home Office apply their own guidance, gaps of overstaying where applications were made no more than 28 days out of time pre-24 November 2016, or 14 days after that date if 39E applies, should not break the lawfulness of the continuous residence.
It is completely unfair to refuse some people without considering policy guidance and granting others with same long lasting practice as per policy guidance
