ILR Refusal - Section 3C- PLEASE HELP

I have come with wary high hope on this portal. We are going through a very tough time due to the ILR being refused.
We are a family of 3. Me. My husband and my 4 year old son. My husband came to the UK in October 2013 and has been on a tier 4 since then. I joined in 2018 and have been PBS dependent and our son was born in the UK. Our current visa that was Tier 4 and dependents expired 11 June 2023 and we applied for a fee waiver 9th June 2023 as we all decided to apply for FLR private life till my husband completed his 10 years in the UK. As the cost to apply for the 3 of us was almost £8k and we didn’t have that much money we decided to apply for a fee waiver. We knew that the home office takes around a month to decide a fee waiver and as told by our solicitor when you apply for a fee waiver the LTR is extended by section 3C.
For Almost next 4 montha we received no information regarding the fee waiver so my husband decided to wait no further and Apply for his ILR. On 30th September 2023 he applied for his ILR.
4th October 2023 - Home Office asked for a few more documents for our fee waiver application.
18th October 2023 - All evidence sent to HO.
20th October 2022 - 10:00 am My husbands ILR biometric ( Super priority Service )
20th October 2022 - 2:00 pm Our Fee waiver application decision came : refusal for my husband and accepted for me and my Son.
23rd October 2022 : 12pm My husbands ILR LR refusal received.
Reason for refusal:

You entered the UK on 14 October 2013 with valid leave to enter, and maintained a continuous period of lawful residence from this date until 11 June 2023, by submitting regular, in-time applications for new leave to remain before any leave expired.
However, your continuous lawful residence became broken on 11 June 2023, upon the expiry of your leave to remain under Tier 4 General.
We draw your attention here to the Home Office Guidance on Leave extended by section 3C:
“A person will have section 3C leave if:
• they have limited leave to enter or remain in the UK
• they apply to the Secretary of State for variation of that leave
• the application for variation is made before the leave expires
• the leave expires without the application for variation having been decided
• the application for variation is neither decided nor withdrawn”
We note that you submitted a fee waiver on 09 June 2023, however a fee waiver is not an application for leave. Therefore, this fee waiver submission does not extend your leave under section 3c. This means you have been residing in the UK unlawfully since 11 June 2023 when your leave to remain under Tier 4 General expired.
As your continuous qualifying period of lawful residence was broken on 11 June 2023, you have accrued a total of 9 years and 9 months continuous residence in the UK, shy of the required 10 years as outlined in 276B(i)(a). Further, you cannot meet the requirements of 276B(v), as you are currently residing in the UK without lawful leave to enter or remain.
For the reasons outlined above, your application for indefinite leave to remain on the grounds of long residence is refused as you have failed to meet the requirements of the Immigration Rules under Paragraph 276D with reference to Paragraph 276B(i)(a) and (v).”

The reason for refusing does not made sense because as per the GOV.UK guidelines on Section 3C



https://www.gov.uk/government/publicati ... plications



Page 25 of the Fee waiver guidelines says :

For in time applications

• if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be told of a decision that they do not qualify for a fee waiver - if any additional evidence is requested they should be told to submit that in order to demonstrate they can qualify for a fee waiver- they must, within 10 working days of the decision being dispatched, submit this additional evidence that demonstrates they qualify for a fee waiver

My husband is on depression medication and this has made things so difficult for us.
We have paid almost £9k within the past few months to get our visas sorted but nothing has paid back. We are now in a very difficult situation financially and mentally.

If your husband had waited until the fee waiver rejection before making an Immigration application within the time limit, then I suspect he would have been covered under Section 3C.

As is, their Fee waiver Guidance apparently does not cover an Immigration application made before the fee waiver decision. Was the ILR application’s caseworker even aware that a fee waiver application was pending?

vinny wrote: ↑

Wed Nov 15, 2023 5:48 am

If your husband had waited until the fee waiver rejection before making an Immigration application within the time limit, then I suspect he would have been covered under Section 3C.

As is, their Fee waiver Guidance apparently does not cover an Immigration application made before the fee waiver decision. Was the ILR application’s caseworker even aware that a fee waiver application was pending?

Hi Vinny, Thankyou so much for taking out your precious time to reply, it really does mean a lot .

The fee waiver was refused on 20th October and the ILR refused on 23rd October so he was in the time frame of 3C at that time. YES in the ILR application we had put the pending application detail and reference number for the fee waiver application.

The Fee waiver guide merely suggests such a request somehow only leads to a grant of leave under section 3C if the request was successful ??

This request does not seem to be mentioned anywhere in the section 3C guide: https://assets.publishing.service.gov.u ... _leave.pdf

For in time applications
•if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be told of a decision that they do not qualify for a fee waiver - if any additional evidence is requested they should be told to submit that in order to demonstrate they can qualify for a fee waiver- they must, within 10 working days of the decision being dispatched, submit this additional evidence that demonstrates they qualify for a fee waiver

•if additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver, the applicant is issued with a fee waiver token that enables them to apply for a fee free immigration application - the applicant has 10 working days to make an LTR application and, where relevant, to benefit from 3C leave

•if the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver or if they do not provide any further evidence within 10 working days, the application should be rejected as invalid. In either of these scenarios the applicant has 10 working days to make a paid LTR application and to benefit, where relevant, from any 3C leave - If a paid application is not made within 10 working days, and the applicant’s leave has expired there can be no capacity to benefit from 3C leave

Hi Zumba , Thankyou so much for the reply.

It seems like if a fee waiver is accepted or denied in both cases 3C continues for 10 days. But I am very confused my case worker said that my husband is unlawful resident since when he submitted the Fee waiver .

Please please can you also ask the other moderators to look into it please.

I will be highly obliged.

Aimy1903 wrote: ↑

Wed Nov 15, 2023 11:10 am

Hi Zumba , Thankyou so much for the reply.

It seems like if a fee waiver is accepted or denied in both cases 3C continues for 10 days. But I am very confused my case worker said that my husband is unlawful resident since when he submitted the Fee waiver .

Please please can you also ask the other moderators to look into it please.

I will be highly obliged.

How do you certainly claim that section 3C gets triggered ?? There is no clear evidence that a fee waiver application leads to section 3C leave being triggered. I showed you the section 3C guide does not even mention this. Section 3C of the immigration act applies only when a in-time new application for leave is made and a fee waiver application is technically not an application for leave per se. If such an application does not trigger section 3C then UKVI reasoning for refusal is correct as your husband did not have lawful residence since June 2023 when his visa expired.

zimba wrote: ↑

Wed Nov 15, 2023 11:03 am

It seems the Fee waiver guide suggests such a request somehow only leads to a grant of leave under section 3C if the request was successful ??

This request does not seem to be mentioned anywhere in the section 3C guide: https://assets.publishing.service.gov.u ... _leave.pdf

For in time applications
•if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be told of a decision that they do not qualify for a fee waiver - if any additional evidence is requested they should be told to submit that in order to demonstrate they can qualify for a fee waiver- they must, within 10 working days of the decision being dispatched, submit this additional evidence that demonstrates they qualify for a fee waiver

•if additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver, the applicant is issued with a fee waiver token that enables them to apply for a fee free immigration application - the applicant has 10 working days to make an LTR application and, where relevant, to benefit from 3C leave

•if the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver or if they do not provide any further evidence within 10 working days, the application should be rejected as invalid. In either of these scenarios the applicant has 10 working days to make a paid LTR application and to benefit, where relevant, from any 3C leave - If a paid application is not made within 10 working days, and the applicant’s leave has expired there can be no capacity to benefit from 3C leave

Doesn’t this suggest that if a failed fee waiver applicant makes an Immigration application within 10 working days, then they may benefit from Section 3C leave that was (deemed to be) triggered when the leave had expired while the fee waiver is pending?

If they asked for further information, then the fee waiver was still pending. I think the fee waiver applicant shouldn't be penalized whether a fee waiver succeeds or fails, if they make an (unpaid or paid, respectively) Immigration application within the 10 working days fee waiver time limit after the fee waiver decision.

However, their examples doesn’t cover what happens when an Immigration application is made when a fee waiver is pending.

Aimy1903 wrote: ↑

Wed Nov 15, 2023 12:20 am

I have come with wary high hope on this portal. We are going through a very tough time due to the ILR being refused.
We are a family of 3. Me. My husband and my 4 year old son. My husband came to the UK in October 2013 and has been on a tier 4 since then. I joined in 2018 and have been PBS dependent and our son was born in the UK. Our current visa that was Tier 4 and dependents expired 11 June 2023 and we applied for a fee waiver 9th June 2023 as we all decided to apply for FLR private life till my husband completed his 10 years in the UK. As the cost to apply for the 3 of us was almost £8k and we didn’t have that much money we decided to apply for a fee waiver. We knew that the home office takes around a month to decide a fee waiver and as told by our solicitor when you apply for a fee waiver the LTR is extended by section 3C.
For Almost next 4 montha we received no information regarding the fee waiver so my husband decided to wait no further and Apply for his ILR. On 30th September 2023 he applied for his ILR.
4th October 2023 - Home Office asked for a few more documents for our fee waiver application.
18th October 2023 - All evidence sent to HO.
20th October 2022 - 10:00 am My husbands ILR biometric ( Super priority Service )
20th October 2022 - 2:00 pm Our Fee waiver application decision came : refusal for my husband and accepted for me and my Son.
23rd October 2022 : 12pm My husbands ILR LR refusal received.

When the fee waiver decision was sent to us on 20th October 2023 it said :
Our records indicate that you have made a paid application on 30 September 2023 and we will therefore not consider your fee waiver application. You will be contacted regarding your paid application in due course.

3 of us applied together for a Fee waiver and my husband was the main applicant. Me and my son got accepted.

23rd October 2023 : ILR refusal was sent

We have now applied for FLR Private life within the 10 days of the fee waiver decision.

And a appeal has been made for my husbands ILR.

We were guided this all by our solicitor.

I have came here to get the expert advice from you all as I have seen you all helping so many people.

zimba wrote: ↑

Wed Nov 15, 2023 11:48 am

Aimy1903 wrote: ↑

Wed Nov 15, 2023 11:10 am

Hi Zumba , Thankyou so much for the reply.

It seems like if a fee waiver is accepted or denied in both cases 3C continues for 10 days. But I am very confused my case worker said that my husband is unlawful resident since when he submitted the Fee waiver .

Please please can you also ask the other moderators to look into it please.

I will be highly obliged.

How do you certainly claim that section 3C gets triggered ?? There is no clear evidence that a fee waiver application leads to section 3C leave being triggered. I showed you the section 3C guide does not even mention this. Section 3C of the immigration act applies only when a in-time new application for leave is made and a fee waiver application is technically not an application for leave per se. If such an application does not trigger section 3C then UKVI reasoning for refusal is correct as your husband did not have lawful residence since June 2023 when his visa expired.

Section 3C does not mention Fee waiver but fee waiver does mention Section 3C.



For in time applications
if the applicant made their request for a fee waiver in time (for example they had valid leave on the date their application was submitted), they should normally be told of a decision that they do not qualify for a fee waiver - if any additional evidence is requested they should be told to submit that in order to demonstrate they can qualify for a fee waiver- they must, within 10 working days of the decision being dispatched, submit this additional evidence that demonstrates they qualify for a fee waiver
if additional evidence is provided within that period that demonstrates the applicant qualifies for a fee waiver, the applicant is issued with a fee waiver token that enables them to apply for a fee free immigration application - the applicant has 10 working days to make an LTR application and, where relevant, to benefit from 3C leave
if the applicant provides further evidence within 10 working days but this does not demonstrate that they qualify for a fee waiver or if they do not provide any further evidence within 10 working days, the application should be rejected as invalid. In either of these scenarios the applicant has 10 working days to make a paid LTR application and to benefit, where relevant, from any 3C leave - If a paid application is not made within 10 working days, and the applicant’s leave has expired there can be no capacity to benefit from 3C leave

As I read in one of your posts for ILR , the circumstances of an applicant are considered as per the date of decision.

So if that’s the case then he was under 3C.

Please correct me if I am wrong as I am not an immigrant ion expert. I just read and try to understand.

Warning.

Aimy1903 wrote: ↑

Wed Nov 15, 2023 12:32 pm

Our records indicate that you have made a paid application on 30 September 2023 and we will therefore not consider your fee waiver application.

It seems that if a paid immigration application is made while a fee waiver application is pending, then they will not even consider the fee waiver application. They are treating this as if there was no fee waiver application made.

Hi Vinny Thankyou so much for your reply, you have been really helpful .

I get your point now.

So what would you suggest . Should he apply for ILR again after 3 more months .

Because the refusal letter says : As your continuous qualifying period of lawful residence was broken on 11 June 2023, you have accrued a total of 9 years and 9 months continuous residence in the UK, shy of the required 10 years as outlined in 276B(i)(a).

My question is that are his 10 lawful years still be counted and continued now ?


We currently are waiting for our FLR P that we applied on the basis of our sons medical condition.

Regards

Aimy1903 wrote: ↑

Wed Nov 15, 2023 12:52 pm

My question is that are his 10 lawful years still be counted and continued now ?

Well, what status does he hold at the moment?

By what you're saying, currently he's an overstayer, which is not lawful residence. To keep the clock going, he needs to regularize his stay.

Hi Thankyou for your response,

The application time frame is:

11 June T4 visa expired
9 June Fee waiver application made
30 September ILR application submitted
4 October Fee waiver more documents requested
18 October documents provided to HO
20 October Fee waiver denied
23 October ILR rejected
26 October FLR P application submitted paid and biometrics given next week

The solicitor also did an appeal for the ILR refusal

vinny wrote: ↑

Wed Nov 15, 2023 11:58 am

Doesn’t this suggest that if a failed fee waiver applicant makes an Immigration application within 10 working days, then they may benefit from Section 3C leave that was (deemed to be) triggered when the leave had expired while the fee waiver is pending?

If they asked for further information, then the fee waiver was still pending. I think the fee waiver applicant shouldn't be penalized whether a fee waiver succeeds or fails, if they make an (unpaid or paid, respectively) Immigration application within the 10 working days fee waiver time limit after the fee waiver decision.

However, their examples doesn’t cover what happens when an Immigration application is made when a fee waiver is pending.

If a fee waiver on its own is considered an application that triggers section 3C, then any new application should(?) be considered a variation of such application, hence continuation of section 3C. I do not see why not as there was nothing rejected as invalid. The waiver guide gives you the impression that this is the case (i.e. such a request is just another immigration application) that triggers section 3C but the relevant section 3C guide does not mention it at all. Rejecting the fee waiver application as invalid (if it fails) also means no section 3C was assumed to have been triggered, just like the way a normal invalid immigration application is treated. I think this is the most consistent view of it

Aimy1903 wrote: ↑

Wed Nov 15, 2023 1:11 pm

Hi Thankyou for your response,

The application time frame is:

11 June T4 visa expired
9 June Fee waiver application made
30 September ILR application submitted
4 October Fee waiver more documents requested
18 October documents provided to HO
20 October Fee waiver denied
23 October ILR rejected
26 October FLR P application submitted paid and biometrics given next week

The solicitor also did an appeal for the ILR refusal

If the refusal is taken as it is then his lawful residence is still considered broken, regardless of the outcome of the FLR application. Regularising his lawful residence will not help him to secure ILR later

zimba wrote: ↑

Wed Nov 15, 2023 3:35 pm

Aimy1903 wrote: ↑

Wed Nov 15, 2023 1:11 pm

Hi Thankyou for your response,

The application time frame is:

11 June T4 visa expired
9 June Fee waiver application made
30 September ILR application submitted
4 October Fee waiver more documents requested
18 October documents provided to HO
20 October Fee waiver denied
23 October ILR rejected
26 October FLR P application submitted paid and biometrics given next week

The solicitor also did an appeal for the ILR refusal

If the refusal is taken as it is then his lawful residence is still considered broken, regardless of the outcome of the FLR application. Regularising his lawful residence will not help him to secure ILR later

Hi Zimba,

Thanks for your reply.

Can you please suggest what’s the solution here ?

We were guided by a solicitor and we’re unaware of this.

He has completed 10 years and always had an application with home office. Can something be done about it ?

It’s unfair with him to suffer because of the lack of knowledge of the immigration advisor.

What are the options now ?

Is he still eligible for ILR LR 10 year route ?

That is not how things work. He does not have 10 years of lawful continuous residence as things stand, so he does not qualify for ILR as per the rules. The advice is to challenge the decision via an appeal process, arguing that the fee waiver guide suggests it is an application that triggers section 3C support.

I am afraid UKVI will not change their decision due to any potential incorrect advice received from an advisor or a solicitor.

Thanks for your time.

We have already submitted the appeal.

If nothing with the ILR we can go on a skilled worker visa or we could apply on my sons basis who was born in the UK.

We have worked very hard to make a life for us here, we can’t let it slip out of our hands for no reason.

I believe God will send his help.

When was your son born, ie what year?

CR001 wrote: ↑

Wed Nov 15, 2023 6:47 pm

When was your son born, ie what year?

Hi Thankyou so much for your reply, all the help
In this difficult time really means a lot for me.

My son was born in 2020, he has a health conditions and is registered with consultants.

I have been in the UK since 2018 and currently work for a British airline.

If your son is not British or hasn't lived in the UK for 7 years, there isn't really a route for parents.

For a Skilled Worker visa, you need a sponsoring employer and must meet the requirements for the visa.

Yes we are aware that he needs to be 7 year old for that.

We are looking into visa options that are possible, it was just that the ILR option was the most suitable for us.

We have been to 7 or 8 solicitors and they all told us that fee waiver is covered under 3C.

It’s feels terrible when such things happen. It was 9 year 9 months and technically in the last 10 years there Always have been a valid application with the HO.

It seems unfair that innocent people have to suffer like this.

But I think this is life.