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SET(LR) Continuous Residency period of overstay

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Nightshade
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SET(LR) Continuous Residency period of overstay

Post by Nightshade » Mon Jul 19, 2021 9:27 am

Hello,

I've recently applied for SET(LR) and the post 2016 rule of continuous residency are a bit confusing to me so I wanted to see what people with more knowledge have to say about it.

Entered UK: 4th Feb 2011 on Tier 4
Tier 4 Immigration impeccable until May 2018, details of which are as below.

Dec 2017: Tier 4 leave expired
Dec 2017: Applied for FLR(FP) in time
Myself and my same sex partner gave our notice of marriage in Nov 2017, and we intended to marry in Dec 2017 and vary the application. We had everything booked but due to difficulties in life and mental health issues we decided to hold off the marriage. We have records of this

10th May 2018: FLR(FP) refused with no in country appeal
12th May 2018: Receipt of refusal (accounting for postal services)
26th May 2018: Date the 14 day period ends for in time application

From this point on I had two options, either leave country and forget about my partner as the only visa I qualified for was FLR(FP) due to not satisfying income requirement and us not being able to marry or live in my home country due to being a same sex couple. Or try to get married in time and make a FLR(FP) after marriage as FLR(FP) can only be made in country.

Our mental health state meant we couldn't focus on marriage before and we couldn't get a marriage date within the 14 day period post refusal, and the earliest date we could get was 30th May. So had no choice but wait and overstay, I have records of this.

Date of Marriage: 30th May

Date of new FLR(FP) application: 4th June

Total overstay post the 14 day period: 7 days

FLR(FP) refused on 23rd August 2018 with option to make an incountry appeal due to insufficient evidence

Receipt of Refusal: 25th August (accounting for post)

6th September: Appeal submitted

Date of Appeal: 28th Oct 2018

Date of decision: 19th Nov 2018

Appeal Decision: Allowed and FLR(FP) decision overturned by the judge



Since then I've been on my FLR(FP) visa and I've made an in time application for SET(LR). I have a good life now, a good job and my partner is in university. It took a long time and even up until Jan 2020 I was still dealing with the aftermath of all this with respect to my mental health as the long period without work made it hard to find a job (I have proof of this too). But we are happy finally. But I can't help but feel that my application will get refused due to those 7 days and there may not be enough provisions to apply discretion for my case.

I'd appreciate it if anyone with knowledge on this is able to confirm whether or not my case has any chance or did I just waste 2.5K on a lost cause? Cause then I'd have been better served applying for FLR(M), but I thought I should try atleast.

Thank you for taking time to go over my case.

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zimba
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Re: SET(LR) Continuous Residency period of overstay

Post by zimba » Mon Jul 19, 2021 11:37 am

You did not qualify for long residence as you were overstaying since 12th May 2018 until you got a new visa. This means you had a gap in your lawful stay which breaks the continuous residence in the UK. So normally as the rules state you are not eligible. However SET(LR) has appeal rights so if refused, you may appeal and explain why your last FLR application was out of time.
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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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Mon Jul 19, 2021 11:43 am

Zimba wrote:
Mon Jul 19, 2021 11:37 am
You did not qualify for long residence as you were overstaying since 12th May 2018 until you got a new visa. This means you had a gap in your lawful stay which breaks the continuous residence in the UK
I thought that may be the case. Though I hoped that my successful application would mean it disregarded the period from the date of application to the date I was granted the visa and not count it as overstay.

Well this sucks massively. The change from 28 days to 14 days in 2016 was a really harsh change. I guess I'll just wait till my application is refused and apply for FLR(M).

Regarding appeal, the problem is if it's refused on the grounds of break in continuous residency and that break being June 2018 to Dec 2018, then I can't really say much to defend my case. If it was only the 7 days that were between 26th May to 3rd June then that's easier to defend.

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Re: SET(LR) Continuous Residency period of overstay

Post by zimba » Mon Jul 19, 2021 1:42 pm

When you apply out of time, the date of application has no bearing on the actual period of overstaying
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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Mon Jul 19, 2021 1:49 pm

Zimba wrote:
Mon Jul 19, 2021 1:42 pm
When you apply out of time, the date of application has no bearing on the actual period of overstaying
Alright I see, it sucks really when you think about it. Just another one of those really harsh rules that can mess up things for you big.

One thing though, that time period while my 2nd application was pending decision I was granted Immigration bail. I'm not sure if that means anything.

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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Mon Jul 19, 2021 1:57 pm

Sorry the bail was from the date of refusal of 2nd application, after which I put in an appeal which was granted. So I suppose my period of overstay was from 12th May to 17th August (the day the bail was granted).

I guess I'll do an appeal when it gets rejected and see what the Judge has to say. Though I'm not sure if judges have the power to grant leave outside of the rules based on individual circumstances. (do they?)

And thanks for your help again.

EDIT: I could potentially vary my application to FLR(M) if rejection is guaranteed and Judge doesn't have the power to offer discretion outside rules.

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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Wed Jul 21, 2021 1:54 pm

So it turns out when my first application was refused on 12th May, I was granted immigration bail.

Then I made a new application on 4th June, which was then refused on 23rd August which then granted me a new immigration bail while I was awaiting my hearing. My leave was eventually granted.

Does that mean anything? I'm not sure if making that new application voided my immigration bail from 12th May? The guidelines on bail does not say anything about a new application ending a current immigration bail but rather that immigration bail ends when a leave to remain is eventually granted, or when the person leaves UK.

I've read online and here on this forum that for purpose of 10 year Long Residency Immigration bail can be counted as lawful residence if a leave to remain was granted. But I'm not sure whether my bail stayed valid throughout or not.

Also as a side note my current FLR(FP) was granted under 276 ADE(1)

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Re: SET(LR) Continuous Residency period of overstay

Post by zimba » Wed Jul 21, 2021 2:14 pm

Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.
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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Wed Jul 21, 2021 2:17 pm

Zimba wrote:
Wed Jul 21, 2021 2:14 pm
Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.
My apologies if I wasn't clear in my previous post.
I was granted an immigration bail with the 12th may refusal letter as well on the same day. And then once again when my 2nd application was refused and pending Tribunal hearing.

Also please understand that I dont mean to pester helpful people here like yourself :) If I don't get it I don't get it, I have other ways to stay in UK. But just wanted to have some information on this bail situation.

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Re: SET(LR) Continuous Residency period of overstay

Post by zimba » Wed Jul 21, 2021 2:22 pm

Nightshade wrote:
Wed Jul 21, 2021 2:17 pm
Zimba wrote:
Wed Jul 21, 2021 2:14 pm
Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.
My apologies if I wasn't clear in my previous post, and please understand that I dont mean to pester helpful people here like yourself :)

But I was granted an immigration bail with the 12th may refusal letter as well on the same day. And then once again when my 2nd application was refused and pending Tribunal hearing.
My personal view is that the first immigration bail may not count because your first FLR decision was not overturned. You applied again, got a new bail and that one was granted. So only the time spent under the second bail may count hence the gap. I may be wrong but let's see what UKVI says it there is refusal
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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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Wed Jul 21, 2021 2:25 pm

Zimba wrote:
Wed Jul 21, 2021 2:22 pm
Nightshade wrote:
Wed Jul 21, 2021 2:17 pm
Zimba wrote:
Wed Jul 21, 2021 2:14 pm
Even if we assume the time spent under immigration bail counts, between 12th May and 23rd August you still have a gap as your first attempt was not successful.
My apologies if I wasn't clear in my previous post, and please understand that I dont mean to pester helpful people here like yourself :)

But I was granted an immigration bail with the 12th may refusal letter as well on the same day. And then once again when my 2nd application was refused and pending Tribunal hearing.
My personal view is that the first immigration bail may not count because your first FLR decision was not overturned. Only the time spent under the second bail may count hence the gap.
I thought so too, but the wording on bail guidance and bail section in LR guidelines does not explicitly state whether a bail ends when one makes a new application. Just that the bail ends if the
person is granted leave later or when the person leaves UK.

I was granted that first bail, with no rights to appeal in the UK. So I could not have regularised that first application anyway.

I guess we'll see. In a situation like this I'll take a non explicit rule open for debate over not having it in the first place. Hah

Anyways thanks for you help.

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Re: SET(LR) Continuous Residency period of overstay

Post by Nightshade » Thu Jul 29, 2021 6:43 pm

I spoke to my solicitor today on this matter (who then spoke to a Barrister with 10 years of experience) and the gist of it is, nowhere does it say that a bail ends when you make a new application. And the small detail about the 2nd bail document being issued 6 days before the 2nd refusal date hinting that it is likely one continuing bail.

He said that my case is a case where the law is vague as there's no clear guidance on how bail works in this situation, and more importantly that there's no grounds for refusal listedvin black and white for a case like mine. And in such a case the circumstances of the person takes precedence along with any human rights reasons.

He actually recommended that I don't vary my application to FLR(M) and just wait. That even if I get a rejection, the law is leaning towards my side and that it'd be very favourable for me in a Judicial review.

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