ILR Long residence Appeal

Hi guys,

I would really appreciate your advice. My ILR (10 year long residence) was refused on grounds that I spent more than 540 days outside the UK (although I had compassionate circumstances).

My leave to remain expires in October 2016. I HAVE been given the right to appeal this decision.
This fact has confused many people including lawyers who I have paid for consultation.

My question is, if I appeal this decision within the next week and the process lasts beyond my extant leave to remain (I understand the appeal lasts around 12 months or more) am I LAWFULLY resident in the UK under section 3c while my appeal is pending?

OR is it the case that because the Home office refused me while I still have a valid visa, section 3c does not apply to me?

Also, if section 3c extends my student visa, must I be a full time student next year during the appeal? Must I show why I am staying in the UK while the appeal is pending other than the appeal itself?

Finally, can I even apply for a Tier 4 student visa after I have lodged the appeal?

I would really appreciate some advice on this, especially since many lawyers have struggled to give me a concrete answer.

kenray92 wrote:I had compassionate circumstances

What were the compassionate circumstances?

kenray92 wrote:if I appeal this decision within the next week and the process lasts beyond my extant leave to remain (I understand the appeal lasts around 12 months or more) am I LAWFULLY resident in the UK under section 3c while my appeal is pending?

To the best of my knowledge, no. Section 3C is only engaged if an application is undecided at the time that the existing leave to remain lapses and it is extended while the relevant appeals take place.

Page 6 of the Leave extended by section 3C (and leave extended by section 3D in transitional cases)

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•the application for variation is neither decided nor withdrawn

Page 12 of the above document

If a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave

But Section 3C is not engaged in your case and hence, it can not be extended.

kenray92 wrote:if section 3c extends my student visa, must I be a full time student next year during the appeal?

If Section 3c were to apply, you continue under the same leave to remain that you were under with the same terms and conditions (summarised from Page 19 of the above document).

What abt if u re-apply for ILR in Oct 2016.....surely your number of days outside UK will drop !!
How many days actually u were away from UK over the last 10 yr ?

secret.simon wrote:

kenray92 wrote:I had compassionate circumstances

What were the compassionate circumstances?

kenray92 wrote:if I appeal this decision within the next week and the process lasts beyond my extant leave to remain (I understand the appeal lasts around 12 months or more) am I LAWFULLY resident in the UK under section 3c while my appeal is pending?

To the best of my knowledge, no. Section 3C is only engaged if an application is undecided at the time that the existing leave to remain lapses and it is extended while the relevant appeals take place.

Page 6 of the Leave extended by section 3C (and leave extended by section 3D in transitional cases)

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

Page 12 of the above document

If a person does not already have section 3C leave the fact that they are entitled to an in-country right of appeal against a decision does not give them section 3C leave

But Section 3C is not engaged in your case and hence, it can not be extended.

kenray92 wrote:if section 3c extends my student visa, must I be a full time student next year during the appeal?

If Section 3c were to apply, you continue under the same leave to remain that you were under with the same terms and conditions (summarised from Page 19 of the above document).

Wow thank you very much for this reply.

1. my compassionate circumstance concerns my grandfather's funeral that I had to attend. If this trip is taken out of my immigration history, my days outside the UK fall under 540 days. As it stands, I have spent 553 days outside the UK (which is why I was rejcted). I would appeal on the grounds that discretion should have been exercised.

2. I understand section 3c will not apply to me. But i must stay in the UK lawfully if I want to appeal
As I understand it, this means I have to lodge the appeal now (within 2 weeks) and then apply for another ILR near October when my leave expires and then get rejected again.... and then appeal again... to trigger section 3c. Is this my only course of action?

3. I cannot wait to bring my days under 540 because I took an erasmus year and so I am applying based on 10 years I have built up in the past.

riz1986 wrote:What abt if u re-apply for ILR in Oct 2016.....surely your number of days outside UK will drop !!
How many days actually u were away from UK over the last 10 yr ?

I was out for 553 days. I said that to the home office. They say 551 in the refusal letter.
My compelling circumstance was grandfather's funeral which the Home office decided not to consider for discretion for various reasons.

I cannot wait because i went on erasmus and applied based on 10 years already built up in the past.

Hi!

Would you mind sharing why the death of your grandfather was not taken into consideration? I am also applying for ILR next week on a 10 year residency rule. I am over 540 days = on 617 days but my father was diagnosed with cancer and died while I was in college. He was ill for 4 years so I came back to see him as we all knew he would die.

Surely loss of a relative must be taken seriously as this has an enormous affect on one's life.