ILR visa gap. Need help please

Hellobro wrote: ↑

Tue Nov 03, 2020 8:18 pm

Thank you for your reply.

My visitor visa expired June 2015 and I applied for new extry clearance for my Ph.D. which started in September 2015. Does that mean my continuity broke in between?
I left the Uk before my visit visa expired and entered UK with a new tier 4 visa for PhD.

Example 2
An applicant:
• enters the UK on 1 September 2004 with entry clearance as a student which is
valid until 31 October 2005
• leaves the UK on 25 October 2005, before their previous leave expired
• re-enters the UK with valid entry clearance as a student on 5 January 2006
The person had valid leave on the date of their departure and on the date of their
return to the UK, and the time spent outside the UK was less than 6 months.
Continuous residence has been maintained, even though the person entered the UK
with a fresh grant of leave.

Hellobro wrote: ↑

Fri Mar 12, 2021 12:00 am

Hi,
I want to confirm my gap towards my ILR does not create any problems for me before I apply. Below are my dates.

1st entered the UK on Tier 4 visa - 8 Feb 2011
left UK on 17th Nov 2014 - My visa expired on 30 Oct 2014, I applied for a tier 4 extension visa but withdrew the application on 14th Nov and left the UK on 17th Nov 2015.
Entered the UK on 27th Jan 2015 on a tourist visa and left Uk on 16th June 2015.
Entered the UK on 18th September 2015 on Tier 4 visa.

Between Sept 2015 and now I have been out to visit my home country and some holidays. Total I have been 358 days out in the last 10 years. I am applying for my ILR next week but need to confirm if my tourist visa is not a problem and my withdrawing application is not a problem towards 10 years route.

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

Hellobro wrote: ↑

Fri Mar 12, 2021 12:12 pm

I was in country uk and made an application on 27 oct 2014 for tier 4 extension ( my previous was expiring on 30 oct 2014). I left country on 17 nov 2014 by withdrawing application. I came back in jan 2015 which was more than 28 days after my last visa expired. Does that mean my continuity broke?

Zimba wrote: ↑

Fri Mar 12, 2021 7:10 pm

Hellobro wrote: ↑

Fri Mar 12, 2021 12:12 pm

I was in country uk and made an application on 27 oct 2014 for tier 4 extension ( my previous was expiring on 30 oct 2014). I left country on 17 nov 2014 by withdrawing application. I came back in jan 2015 which was more than 28 days after my last visa expired. Does that mean my continuity broke?

In that case, I agree with vinny that your continuous residence is broken as you failed to apply for a new entry clearance, within 28 days of the previous lawful residence period ending. Section 3C ends on the day you leave the UK (or on the day you withdrew application)

vinny wrote: ↑

Fri Mar 12, 2021 11:28 am

For Long residence, under 276B(v)

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

means that you had to apply for leave to remain or entry clearance within 28 days of overstaying.

vinny wrote: ↑

Wed Nov 12, 2014 9:44 am

Leaving/applying within the 28 days "grace" period of overstaying [* reduced to 14 days under 39E, effective 24 November 2016] (for leave to remain applications) does mean that you are an overstayer.

I think that you should declare any periods of overstaying (24(1)(b)(i)). Casa gave the definition that was correctly based on:

Immigration Rules: introduction wrote:"Overstayed" or "Overstaying" means the applicant has stayed in the UK beyond the latest of:
(i) the time limit attached to the last period of leave granted, or
(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971.

Concession [* probably no more concession]:

1.1 RFL5.1 When must I refuse under paragraph 320? wrote:or(iii) the date that an applicant receives the notice of invalidity declaring that an application for leave to remain is not a valid application, provided the application was submitted before the time limit attached to the last period of leave expired.

However,

1.1 RFL5.1 When must I refuse under paragraph 320? wrote:The rule requires that the applicant has overstayed for more than 90 days (or for any period if, after overstaying, he went home at public expense including AVR or similar programme).

Therefore, simply overstaying 90 [* reduced to 30] days or less shouldn't affect future entry clearance applications. But don't break any other conditions. There may also be problems with private rented accommodation and driving too, part of a hostile environment.

Overstayers applying for leave to remain have no rights of appeal.

Overstaying may also disqualify British citizenship for applicants aged 18 or over, when they are subject to the Good Character requirements.

Historically:

106 wrote:In paragraph 320(7B)(d)(i) delete “28 days” and insert “90 days”

EXPLANATORY MEMORANDUM TO THE STATEMENT OF CHANGES IN IMMIGRATION RULES PRESENTED TO PARLIAMENT ON 13 JUNE 2012 (HC 194) wrote:Re-entry bans

7.19 Currently migrants who overstay their leave to enter or remain by more than 28 days are subject to a re-entry ban. Where a person subject to a re-entry ban seeks entry clearance or leave to enter, they will be refused, subject to certain exceptions for those seeking entry as family members. The length of the ban varies from one year to 10 years depending on whether the migrant departed from the UK at their own expense or at public expense, or whether the migrant used deception.

7.20 Overstayers are not permitted to work, they have no recourse to public funds, are denied access to free secondary healthcare and their details may be shared with credit agencies and other Government departments to deny access to benefits and services. However, where they fail to depart from the UK promptly after their leave to enter or remain expires, the re-entry ban can act as a disincentive to depart. Under the changes to the Immigration Rules the ban will only apply where the migrant overstays by more than 90 days. This extended period is to further incentivise voluntary departure and save the significant public expense incurred through enforced removal.

Statement of changes to the Immigration Rules: HC1078, 16 March 2017 wrote:9.2 In paragraph 320(7B) for sub-paragraph (i) substitute:
“(i) overstayed for-
(a) 90 days or less, where the overstaying began before 6 April 2017:
or
(b) 30 days or less, where the overstaying began on or after 6 April 2017
and in either case, left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;”

9.3 After paragraph 320(7B), insert:
“320(7BB). For the purposes of calculating the period of overstaying in
paragraph 320(7B)(i), the following will be disregarded:

(a) overstaying of up to 28 days, where, prior to 24 November 2016, an application for leave to remain was made during that time, together with any period of overstaying pending the determination of that application and any related appeal or administrative review;

(b) overstaying in relation to which paragraph 39E of the Immigration Rules (concerning out of time applications made on or after 24 November 2016) applied, together with any period of overstaying pending the determination of any related appeal or administrative review;

(c ) overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed, or which the Court or Tribunal has required the Secretary of State to reconsider in whole or in part, unless the challenge to the decision was brought more than three months from the date of the decision.”.

Explanatory memorandum to the statement of changes in Immigration Rules: HC1078, 16 March 2017 wrote:Changes relating to overstayers

7.34. Paragraphs 320(7B)(i) and Appendix V paragraph 3.9(a) are being amended to reduce the period of overstaying which is permitted before a re-entry ban is imposed on individuals who have remained in the UK after their leave to enter or remain has expired. Unless specific exceptions apply, anyone who has overstayed for more than 90 days is subject to a 12 month re-entry ban. This is being reduced to 30 days.

Consequential changes are also being made to Appendix V, paragraph 3.8.

7.35. The ban was introduced in 2012 to encourage those who had only recently overstayed and who could no longer apply for further leave in-country to depart and re-apply from overseas. The period of 90 days was originally intended to reduce any incentive to remain in the UK without leave. The reduction in the 90-day period to 30 days is being brought in to increase compliance with the Immigration Rules and reduce overstaying, while still enabling those who have overstayed for short periods and who are essentially compliant to return to the UK relatively quickly.

Update: 39E(1) requires “good reasons”.

vinny wrote: ↑

Fri Mar 12, 2021 2:42 pm

Unfortunately, it may have broken. See if there are any similar examples in the Long residence Guidance.

vinny wrote: ↑

Fri Mar 12, 2021 12:23 pm

I think Section 3C lapses when you withdrew your application. If you had applied for entry clearance within 28 days of withdrawing your application, then you may be okay.

Hellobro wrote: ↑

Sun Mar 14, 2021 6:59 pm

vinny wrote: ↑

Fri Mar 12, 2021 12:23 pm

I think Section 3C lapses when you withdrew your application. If you had applied for entry clearance within 28 days of withdrawing your application, then you may be okay.

Hi Vinny,
Section 3C does states and clarifies -
The stated purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending. Where an in-time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires, section 3C extends the person’s existing leave until the application is decided (or withdrawn).

When I applied for application in Oct 2014 and withdrew the application on 14th Nov 2014 and left the UK on 18th nov 2014 - means section 3C extends itself as the application was not decided or withdrawn.

Am I understanding correctly?