Visa extension and lawful residence

I have applied for my ILR after completing more than ten years of lawful residency in the UK as a student/student dependant. Unfortunately, my application was refused because I have applied for few visa extensions and these extensions have been considered as short stays based on the new lawful residency updates on 12th April 2023.

Logically, the visa extensions are part of the original visas and they are not a separate short-stay visas, i.e if my course for example is 4 years then I needed 6 months extra to finish it, I get a letter from my university to extend my visa by 6 months and so on.

is it worth it to try to appeal or apply for an administrative review to clarify this to them?

I hope anyone can help

Best wishes

Only Short-term Student (English language) visas are excluded:

4.1 Definition of continuous lawful residence
Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant had one of the following:

•existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker

•an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain

Lawful residence does not include time spent on immigration bail (including time spent with temporary admission and temporary release).

https://www.gov.uk/government/publicati ... ation-bail

Many thanks Zimba for your kind respond. Actually I had a look many times to the paragraph 276A and 276B, I could not understand why my Tier 4 visas extensions during my MSc and PhD studies considered as short stay visas.

What should I do at the moment? what are the process of appeal/reconsideration etc?


I appreciate your help and advice.

Best wishes
SQ

Unfortunately, my application was refused

Can you post the full refusal letter wording, taking out personal information.

SQ321 wrote: ↑

Wed Jul 05, 2023 9:06 pm

Many thanks Zimba for your kind respond. Actually I had a look many times to the paragraph 276A and 276B, I could not understand why my Tier 4 visas extensions during my MSc and PhD studies considered as short stay visas.

What should I do at the moment? what are the process of appeal/reconsideration etc?


I appreciate your help and advice.

Best wishes
SQ

I suspect that the caseworker made a mistake. Short extensions should not be excluded. The rules only excluded short term student visas when the applicant came here to study English

Reasons you do not qualify for a grant of indefinite leave to remain (ILR)

On 22 June 2023, you made an application for indefinite leave to remain on the basis of 10 years continuous and lawful residence, meeting the requirements of paragraph 276B of the Immigration Rules. Your application has been considered under the Immigration Rules, including the partner and private life rules and the basis of exceptional circumstances, which can be viewed on gov.​uk at the following address: www.gov.uk/government/collections/immigraion-rules.

Paragraph 276B

The requirements to be met by an application for Indefinite Leave to Remain under Paragraph 276B on the grounds of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person’s behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

You do not meet the requirements of 276B(i)(a) as you do not hold ten years continuous lawful residence in the UK.
You entered the UK on 21 September 2012 with valid entry clearance as a Tier 4 General Student. Before the expiry of this entry clearance on 13 January 2014, you submitted an in-time application for leave to remain as a Tier 4 General Student, which was issued on 03 December 2013 until 21 May 2014.
Under the new Immigration Rules effective from 13 April 2023, for long residence applications, any leave as a Student issued for a period of under 12 months can not count towards an individual’s period of continuous lawful residence. As this leave was issued for a period of 5 months, it is not considered that this period can be included within your qualifying residence. Therefore, your qualifying period became broken on 13 January 2014, upon the expiry of your entry clearance.
Following this, you submitted an application for further leave to remain as Tier 4 General Student on 15 May 2014, which was subsequently issued until 05 November 2014. As this is a period of 6 months only, this period of leave cannot be considered towards your qualifying residence.
Next, you applied for leave to remain as a Tier 4 General Student on 07 August 2014, which was issued on 07 October 2014 until 28 January 2016. As this student leave was issued for a period of 15 months, this time can be counted towards your lawful residence. Therefore, your qualifying period began again on 07 October 2014. This constitutes a 7 month break in your qualifying period form 13 January 2014, when your entry clearance expired, until 07 October 2014 when you were next issued leave to remain for a period of over 12 months.
Your next application for leave was on 17 December 2015, for leave to enter. This was issued on 17 December 2015 until 28 January 2020, a period of 5 years, and therefore continued your lawful residence. Before the expiry of this leave to enter, you submitted an application for leave to remain as a Tier 4 General Student on 11 December 2019, which was issued from 19 December 2019 until 29 August 2020. Again, as this is s period of 8 months only, it can not count towards your continuous qualifying period. The same applies to your following application of 19 August 2020, whereupon you were issued leave to remain as a Tier 4 General Student on 29 September2020 until 30 March 2021, a period of 6 months only. Therefore, your continuous residence period was again broken on 28 January 2020, and did not resurrect until you were issued leave to remain under Family and Private Life on 02 August 2024. This constitutes a break of 2 years and 1 month.

These breaks in your qualifying period mean it is therefore not possible for you to have accrued the required ten years residence as outlined in 276B(i)(a).

Given the above, your application is refused under paragraph 276D of the Immigration Rules with reference to paragraph 276B(i)(a). You do not have to leave the UK as a result of this decision.

You have not evidenced any exceptional or significantly compelling circumstances to warrant discretion being exercised in your favour for the fact you cannot meet the requirements for settlement.
With consideration of Section 55 of the Borders Citizenship and Immigration Act 2009 regarding the best interests of children, it is noted you have a spouse and children. You have raised that your children are settled and integrated into the UK, receiving education, and that they can not successfully integrate into the society or culture of Saudi Arabia. It is considered given you have extant lawful leave to remain that you can legitimately remain in the UK and not negatively affect you or your children’s welfare or your ability to continue you family life together with your spouse.
You are not required to leave the UK as a result of this decision given you have limited leave to remain valid until 02 August 2024. Should you wish to remain in the UK after this date you should make an appropriate application to do so before its expiry.

CR001 wrote: ↑

Wed Jul 05, 2023 9:36 pm

Unfortunately, my application was refused

Can you post the full refusal letter wording, taking out personal information.

Please find the refusal wording above.

I hope it is possible that the caseworker made a mistake

zimba wrote: ↑

Wed Jul 05, 2023 1:12 pm

Only Short-term Student (English language) visas are excluded:

4.1 Definition of continuous lawful residence
Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant had one of the following:

•existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker

•an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain

Lawful residence does not include time spent on immigration bail (including time spent with temporary admission and temporary release).

https://www.gov.uk/government/publicati ... ation-bail

From your link; it states

10. Treatment of time spent in the UK as a visitor, short-term student, and seasonal worker

Any periods of time with leave in any of the following, are not ‘lawful residence’ for the purposes of long residence and will break continuous residence:

any category of visitor granted under ‘Appendix V: Visitor’ of the Immigration Rules

short-term student granted under ‘Appendix Short-term Student’ of the Immigration Rules

seasonal worker granted under ‘Appendix Temporary work – Seasonal Worker’ of the Immigration Rules

I believe this interpretation of the rules in place is incorrect. The rules only exclude Appendix Short-term Student (English language). The English language visa is explicitly mentioned. This means a short student visa extension should not be excluded(?). Also nowhere in the rules exclusion of a 'student visa being shorter than 12 months' is mentioned.

Also Appendix Short-term Student (English language) explicitly talks about being a visa to study English language:

This route is for a person aged 16 and over who wants to study an English language course in the UK for between 6 and 11 months at an accredited institution. An application can only be made by a person outside the UK.

https://www.gov.uk/guidance/immigration ... h-language

zimba wrote: ↑

Thu Jul 06, 2023 12:09 pm

I believe this interpretation of the rules in place is incorrect. The rules only exclude Appendix Short-term Student (English language). The English language visa is explicitly mentioned. This means a short student visa extension should not be excluded(?). Also nowhere in the rules exclusion of a 'student visa being shorter than 12 months' is mentioned.

Also Appendix Short-term Student (English language) explicitly talks about being a visa to study English language:

This route is for a person aged 16 and over who wants to study an English language course in the UK for between 6 and 11 months at an accredited institution. An application can only be made by a person outside the UK.

https://www.gov.uk/guidance/immigration ... h-language

Many thanks Zimba for your kind reply.

I also believe this does not apply in my case as all of my visas are not separate visas and they continue the previous ones.

Does anyone know what should I do ?

Regards,
SQ

I think there is a Right of Appeal against a 276B refusal.

I believe that zimba is correct.

Long residence in the United Kingdom

276A. For the purposes of paragraphs 276B to 276D.

• (b) “lawful residence” means residence which is continuous residence pursuant to:
  • (i) existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker; or
  • (ii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
• (c) “lawful residence” does not include time spent on immigration bail.

was precise in defining the time spent under which Appendices were excluded.

4.1 Definition of continuous lawful residence

Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant had one of the following:

• existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker
• an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain

Lawful residence does not include time spent on immigration bail (including time spent with temporary admission and temporary release).

reflects the Rules’ current interpretation.

Interpretation

6.1. In these rules, unless the contrary intention appears, references to paragraphs are to paragraphs of the Immigration Rules (HC 395 as amended) made under section 3(2) of the Immigration Act 1971, and references to Appendices are to Appendices to those rules.

….
“Visitor” means a person granted permission under paragraphs 40-56Z, 75A-M or 82-87 of the rules in force before 24 April 2015 or Appendix V on or after 24 April 2015 or Appendix V: Visitor after 9am on 1 December 2020.

“Short-term Student” means a person who has, or had, permission under Appendix Short Term Student, or paragraph A57E of the rules in force before 1 December 2020.

“Seasonal Worker” means a person who has, or had, permission under any of the following:

• (i) Appendix Temporary Work – Seasonal Worker; or
• (ii) Appendix T5 (Temporary Worker) Seasonal Worker under the rules in force between 1 December 2020 and 10 October 2021 (inclusive); or
• (iii) as a Tier 5 (Temporary Worker) migrant in the Seasonal Worker sub-category under part 6A of the rules in force before 1 December 2020.

Unfortunately, the
Explanatory memorandum to the statement of changes in immigration rules HC1160

Changes to the Long Residence rules

• 7.65 The current definition of what constitutes lawful residence in the long residence rules is not clear, and this has led to confusion for customers and a broader interpretation than intended. These changes will make the definition easier to understand and better represent the purpose of the long residence route.
• 7.66 The rules are changing to not allow any period on immigration bail to count towards the qualifying period for long residence in any circumstances. This creates a simple expectation that people cannot count time with precarious status towards settlement on the basis of long residence.
• 7.67 The changes will also not allow time as a visitor, short-term student and on the seasonal worker routes to count towards long residence. This makes it clear that time spent on a route which both allows for a maximum grant of permission of 12 months, and where switching is generally not allowed (so there is the strongest possible expectation that the person will leave the UK at the end of a short stay), cannot count towards settlement on the basis of long residence.
• 7.68 A person who has spent a period of time on immigration bail or as a visitor (or other temporary permission) who is later granted permission on another basis will still be able to qualify for long residence settlement, but they will need to wait longer to do so.

7.67 was imprecise. Note that 7.67 is Guidance for 276A(b)(i). I think 7.67 has led some caseworkers to further misinterpret 276A(b)(i).

I suspect the recent changes in the Long Residence rules came about because some (not all) people at the Home Office were confused with the nature of the Immigration rules and had misinterpreted these rules themselves. Consequently, they had lost a Court of Appeal judgment. Interestingly, 7.65 blamed their confusions onto others and they complicated these rules to suit their misunderstanding.

vinny wrote: ↑

Fri Jul 07, 2023 1:41 pm

I think there is a Right of Appeal against a 276B refusal.

I believe that zimba is correct.

Long residence in the United Kingdom

276A. For the purposes of paragraphs 276B to 276D.

• (b) “lawful residence” means residence which is continuous residence pursuant to:
  • (i) existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker; or
  • (ii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
• (c) “lawful residence” does not include time spent on immigration bail.

was precise in defining the time spent under which Appendices were excluded.

4.1 Definition of continuous lawful residence

Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant had one of the following:

• existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker
• an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain

Lawful residence does not include time spent on immigration bail (including time spent with temporary admission and temporary release).

reflects the Rules’ current interpretation.

Interpretation

6.1. In these rules, unless the contrary intention appears, references to paragraphs are to paragraphs of the Immigration Rules (HC 395 as amended) made under section 3(2) of the Immigration Act 1971, and references to Appendices are to Appendices to those rules.

….
“Visitor” means a person granted permission under paragraphs 40-56Z, 75A-M or 82-87 of the rules in force before 24 April 2015 or Appendix V on or after 24 April 2015 or Appendix V: Visitor after 9am on 1 December 2020.

“Short-term Student” means a person who has, or had, permission under Appendix Short Term Student, or paragraph A57E of the rules in force before 1 December 2020.

“Seasonal Worker” means a person who has, or had, permission under any of the following:

• (i) Appendix Temporary Work – Seasonal Worker; or
• (ii) Appendix T5 (Temporary Worker) Seasonal Worker under the rules in force between 1 December 2020 and 10 October 2021 (inclusive); or
• (iii) as a Tier 5 (Temporary Worker) migrant in the Seasonal Worker sub-category under part 6A of the rules in force before 1 December 2020.

Unfortunately, the
Explanatory memorandum to the statement of changes in immigration rules HC1160

Changes to the Long Residence rules

• 7.65 The current definition of what constitutes lawful residence in the long residence rules is not clear, and this has led to confusion for customers and a broader interpretation than intended. These changes will make the definition easier to understand and better represent the purpose of the long residence route.
• 7.66 The rules are changing to not allow any period on immigration bail to count towards the qualifying period for long residence in any circumstances. This creates a simple expectation that people cannot count time with precarious status towards settlement on the basis of long residence.
• 7.67 The changes will also not allow time as a visitor, short-term student and on the seasonal worker routes to count towards long residence. This makes it clear that time spent on a route which both allows for a maximum grant of permission of 12 months, and where switching is generally not allowed (so there is the strongest possible expectation that the person will leave the UK at the end of a short stay), cannot count towards settlement on the basis of long residence.
• 7.68 A person who has spent a period of time on immigration bail or as a visitor (or other temporary permission) who is later granted permission on another basis will still be able to qualify for long residence settlement, but they will need to wait longer to do so.

7.67 was imprecise. Note that 7.67 is Guidance for 276A(b)(i). I think 7.67 has led some caseworkers to further misinterpret 276A(b)(i).

I suspect the recent changes in the Long Residence rules came about because some people at the Home Office were confused and had misinterpreted these rules themselves. Consequently, they had lost a Court of Appeal judgment. So, they complicated the rules to suit their misunderstanding.

The home office did not give me the right to appeal as mentioned at the end of their refusal letter, and I think this is because I still have a valid visa. Is there any suggestion or advice in what should I do ?

Best wishes,

SQ

Can you apply for admin review?
If yes maybe you should try this route with a cover letter explaining the difference between short term student visa to student visa extension?

Not sure... that sounds very stressful and upsetting.

Otherwise, maybe it worth consulting immigration advisor.

SQ321 wrote: ↑

Sat Jul 08, 2023 1:22 pm

The home office did not give me the right to appeal as mentioned at the end of their refusal letter, and I think this is because I still have a valid visa. Is there any suggestion or advice in what should I do ?

Did they explain what your rights are, with respect to this incorrect refusal?

I think that the 2014 Act had removed 82(d). If they had wrongly decided that you had no rights of appeal, then a remedy is to appeal anyway and let the Tribunal determine the jurisdiction issue.

However, an appeal is not an immigration application. If there is no pending in-time valid immigration application when your leave expires, then Section 3C won’t be triggered nor protect you from overstaying.

Requesting a reconsideration may be an alternative option.

The long residence applications are considered human rights applications, so the right to appeal should be granted: https://assets.publishing.service.gov.u ... appeal.pdf