SET LR refused

Hi,
thanks advance for the help.

1. I came to United Kingdom as a student visa valid from 5 September 2008 until 31 January 2010.
2. On 26 February 2010 granted further leave to remain as a student.
3. On 18 February 2011 granted leave o to remain as a Tier 1 (Post-Study Work) Migrant valid until 18 February 2013.
4. On 18 March 2014 application for leave to remain as a Tier 1 (Entrepreneur) Migrant was refused by the Secretary of State with a right of appeal. exercised this right of appeal and the matter came before the First-Tier Tribunal on 24 November 2014 and was dismissed on 10 December 2014.
5. On 21 May 2015 appeal rights exhausted.
6. Expiry of 3c leave then submitted a valid FLR (Fb) application on 16 June 2015. The application was then rejected on 26 November 2015 with no right of appeal in the UK.
7. Temporary admission was issued on 7th December 2015.
8. Further application of Tier 1 (Entrepreneur) submitted on 30 November 2015 which was then rejected as a invalid application on 5th February 2016.
9. After that Submitted further application of Tier 1 (Entrepreneur) again which was submitted on 11th February 2015 and rejected as a overstayed on 21 March 2016.
10. In the period of Temporary admission I was granted FLR (fb) on the basis of British Child 10 year route from 22-08-2018 to valid until 22-02-2021.
Can i illegible to apply for a ILR long term residence?

You have two unlawful gaps in your stay. You do no have 10 years of lawful residence to apply under long residence.

thank you replay Zimba.
please could you explain unlawful gaps in stay and why.

sam16hita wrote: ↑

Wed Nov 18, 2020 4:11 pm

thank you replay Zimba.
please could you explain unlawful gaps in stay and why.

The long residence is based on continuous and lawful residence in the UK
Between 21 May 2015 and 7th December 2015 you had no lawful residence.
Between the end of your Temporary admission until 22-08-2018 you had no lawful residence.
You do NOT have continuous lawful residence to apply under long residence

hi
Thank you so much for your response. Apologies as some of the information was missed. Please can you go through the following information again.
As per your previous reply you mentioned as after 21st May 2015 there is unlawful residence for that my explanation is after First tribunal I went to the upper tribunal where the decision was dismissed on 21st May 2015. So I was on 3C Leave after that period. Then with in 28 days I made another application FLR FB and which was rejected on 26th November 2015. After that With in 14 days they issued the Temporary admission until my Leave to remain was granted.
So can you please explain any unlawful leave.
1 Student and Tier 1 (Post-Study Work) Migrant included valid visa from 5 September 2008 until 18 February 2013.
2 Tier 1 (Entrepreneur) migrant on 18 February 2013 to refuse On 18 March 2014 application right of appeal. Exercised this right of appeal from First-Tier Tribunal decision dismissed on 10 December 2014 and upper tribunal decision dismissed on 21 may 2015 and appeal rights exhausted.
3 3c leave then submitted a valid FLR (Fb) application on 16 June 2015. The application was then rejected on 26 November 2015 with no right of appeal in the UK.
4 Temporary Admission was issued on from 7th December 2015 to until grant leave to remain ( flr fb valid from 22-08-2018 to valid until 22-02-2021 ).
5 Further application of Tier 1 (Entrepreneur) submitted on 30 November 2015 which was then rejected as a invalid application on 5th February 2016.
6 After that Submitted further application of Tier 1 (Entrepreneur) again which was submitted on 11th February 2015 and rejected as a overstayed on 21 March 2016.
7 In the period of Temporary admission I was granted FLR (fb) on the basis of British Child 10 year route from 22-08-2018 to valid until 22-02-2021. Can i illegible to apply for a ILR long term residence?

As per your previous reply you mentioned as after 21st May 2015 there is unlawful residence for that my explanation is after First tribunal I went to the upper tribunal where the decision was dismissed on 21st May 2015. So I was on 3C Leave after that period. Then with in 28 days I made another application FLR FB and which was rejected on 26th November 2015.

That is not how Section 3C works. Section 3C protection ends when your appeal for the in-time application is finally dismissed and you exhaust your options. You became an overstayer after 21st May 2015. You applied within 28 days for a new application but your new application was refused again meaning you never regularised your stay in order to benefit from Paragraph 39E. The fact you were granted temporary leave afterwards is irrelevant. So between 21st May 2015 and 7th December 2015 you did NOT have continuous lawful residence.

You can aim to apply for long residence in 2025 when you have 10 years of continuous lawful residence

Thank you so much for your response.
paragraph 276B 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

i have two gaps
1. 21st May 2015 to 26th November 2015------gap is 28 days
2. 26 November 2015 to 7th December 2015 -----14 days

Please let me know the above provision applicable or not ? why ?

The key issue here is that your out-of-time FLR application was refused meaning that your overstaying gap cannot be disregarded. If the FLR was granted (NOT refused) then what you quoted applies

Zimba wrote: ↑

Fri Nov 20, 2020 2:53 pm

You applied within 28 days for a new application but your new application was refused again meaning you never regularised your stay in order to benefit from Paragraph 39E. The fact you were granted temporary leave afterwards is irrelevant. So between 21st May 2015 and 7th December 2015 you did NOT have continuous lawful residence.

You can aim to apply for long residence in 2025 when you have 10 years of continuous lawful residence

Immigration history:
You entered the UK on the 05 September 2008 with EC as a student with permission to enter until 31 January 2010.
In-time T4 – General Student – LTR submitted 18 January 2010 where you were granted permission to remain 26 February 2010 until 28 February 2011.
In-time T1 HS – Post Study – LTR submitted 26 January 2011 where you were granted permission to remain on the 18 February 2011 until 18 February 2013.
In-time T1 HS – Entrepreneur – LTR submitted on the 18 February 2013 refused with ROA on the 14 March 2014.
In-time appeal submitted on the 03 April 2014 which was dismissed at a first tier hearing on the 10 December 2014.
In-time PTA submitted 23 December 2014 which was refused on the 05 February 2015. In-time PTA application submitted 23 February 2015 which was refused upper tier on the 21 May 2015 where you became ARE.
Out of time Family/Private Life 10yr – LTR(E) submitted 16 June 2015 where you were refused on the 26 November 2015 with out of country appeal.
Out of time T1 HS – Entrepreneur – LTR submitted on the 30 November 2015 rejected on the 05 February 2016.
You were set up on temporary admission on the 07 December 2015 which was in place until 23 June 2018 where it was changed to SoS immigration bail on the 23 June 2018.
Out of time T1 HS – Entrepreneur – LTR where you were refused on the 21 March 2016 with AR. AR received on the 04 April 2016 and validated on the 05 April 2016. On the 29 April 2016 AR was decision maintained and completed.
Served with RED 0001 on the 03 November 2017.
Out of time Family/Private Life 10yr – LTR(E) submitted on the 22 August 2018 where you were granted permission to remain on the 22 August 2018 until 22 February 2021.
SoS immigration bail ended the 23 August 2018 when you were granted leave.
In-time Family/Private Life 10yr – LTR(E) submitted 04 February 2021 which you withdrew on the 07 September 2021.

Application varied to 10 year long residency on the 28 July 2021
It is noted that you entered the UK on 05 September 2008 where you held valid leave until you became appeal right exhausted on the 21 May 2015 following your in time appeal of your refused T1 HS – Post Study – LTR submitted 18 February 2013.
You submitted you next application on the 16 June 2015, while this was within the 28 days following the refusal of you in-time application, 26 days till the your next applications was made disregarded for the purpose of P6B(v) as no leave was granted for this out of time appeal.
It is noted from your immigration history that you were set up on temporary admission on the 07 December 2015. As this was still in place when you granted leave to remain in the UK in your Family/Private Life 10yr – LTR(E) application was granted on the 22 August 2018. We will class this time as law full leave.
Therefore, between 21 May 2015 and 07 December 2015 you have been in the UK without lawful leave. Since the 07 December 2015 you have held lawful leave, a total of 6 years and 3 months.
It is noted from your application form that the decision to refuse your Family/Private Life 10yr – LTR(E) application on 26 November 2015 that no decision letter was received. The decision letter was despatched to your know address via recorded and there no record of this being returned to us.
Your continuous lawful residence is therefore considered broken and you do not meet the requirements of Paragraph 276B(i)(a).
Once you have paid the immigration health surcharge, your application will be treated as a valid application for limited leave to remain and you will be granted 30 months’ limited leave to remain in the UK.
Is there any benefit if I challenge the above decision according to Afzal case?

If I challenge the decision, am I still able to travel to another country?

My application and IHS fees are not returned yet what should I do to get my money back?

If you vary application from FLR FP to SET LR and if the SET LR was refused, am I able to get my FLR FP application fees back or not?
If the case worked refused to give SETLR and agreed to extend the leave on the basis of FLR FP, so the application fees difference for SETLR and FLRFP, can be refunded or not?

I am not surprised that the exact advice I gave you in 2020 is almost word by word mentioned in your refusal letter. I told you that you will not qualify under the long residence.

I am not sure varying your FLR will make you eligible for a refund. Your application under SET(LR) is refused, the case worker will not offer anything. You may challenge the decision if you are given appeal rights but I do not see how you can win. You may have to decide if you want to apply for FLR(FP) within 14 days of this refusal. You do not have any valid leave and you are under Section 3C now, so you must not leave the UK.