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Hello zimba and marcnath could you please see this rule and advise thanks
What advice are you looking for. This is the exact paragraph Zimba referred to in his previous reply.jaz9567 wrote: ↑Sat Nov 17, 2018 9:18 amHello zimba and marcnath could you please see this rule and advise thanks
"Exceptions for overstayers
39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Hi marcnathmarcnath wrote: ↑Sat Nov 17, 2018 10:15 amWhat advice are you looking for. This is the exact paragraph Zimba referred to in his previous reply.jaz9567 wrote: ↑Sat Nov 17, 2018 9:18 amHello zimba and marcnath could you please see this rule and advise thanks
"Exceptions for overstayers
39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Hi marcnath,marcnath wrote: ↑Sat Nov 17, 2018 10:15 amWhat advice are you looking for. This is the exact paragraph Zimba referred to in his previous reply.jaz9567 wrote: ↑Sat Nov 17, 2018 9:18 amHello zimba and marcnath could you please see this rule and advise thanks
"Exceptions for overstayers
39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Again, as already discussed, there is an issue with interpretation here.
Zimba wrote: ↑Wed Nov 14, 2018 7:06 pmThe rules permit the current and previous period of overstaying to be ignored under paragraph 39E, however the rules on variation might make this complicated.
This is why variation to long residence vs SET(O) might be treated differently, given the date of application.Date of application: application to vary
Where an application is varied, the application date remains the date of the original
application. This is relevant to whether an applicant has, or will have, 3C leave. For
further information see: Leave extended by section 3C (and leave extended by
section 3D in transitional cases).
However, for PBS applications, where a variation application is made in accordance
with paragraph 34E, then, for the purposes of assessment against the rules, the date
on which the variation is made should be treated as the date of the application.
Thank you marcnathmarcnath wrote: ↑Sat Nov 17, 2018 3:10 pmAgain, as already discussed, there is an issue with interpretation here.
It is clear your 2nd application is valid under 39E. It is also clear that if that application is successful, your continuous stay for LR is not affected.
However, as Zimba pointed out, there are some interpretation challenges.
Previously there have been cases where HO has approved LR applications in your situation. But Zimba pointed out a more recent case where they rejected it. You may have to wait to see how the appeal in that case works out to know for sure.
Zimba wrote: ↑Wed Nov 14, 2018 7:06 pmThe rules permit the current and previous period of overstaying to be ignored under paragraph 39E, however the rules on variation might make this complicated.
This is why variation to long residence vs SET(O) might be treated differently, given the date of application.Date of application: application to vary
Where an application is varied, the application date remains the date of the original
application. This is relevant to whether an applicant has, or will have, 3C leave. For
further information see: Leave extended by section 3C (and leave extended by
section 3D in transitional cases).
However, for PBS applications, where a variation application is made in accordance
with paragraph 34E, then, for the purposes of assessment against the rules, the date
on which the variation is made should be treated as the date of the application.
