ILR Refused, can I make a fresh application

alfonso · Post by **alfonso** » Thu Aug 11, 2016 11:54 am

Hello Guys,

I've been reading this forum recently and I must say that you guys have doing a great job here. I would like to thank in advance every single person that makes contribution to this forum.

Let me explain my case. I have been granted TIER 1 January 2011 and came to the UK 193 days later (Aug 2011) after I got my visa because of personal reasons and health issues. My second TIER 1 was granted 12 Feb 2013 which means my leave expired 12 Feb 2016. I've applied ILR SET(O) before my visa expires.

My application is refused because I have been outside the UK 193 days on my first year. In the letter it is also stated that I can request administrative review. However, I am planning to make a fresh application because as for today I am eligible to get ILR for lawful residence 5 years. I assume that time between my application (Feb 2016-Aug 2016) I am lawful resident in the UK.

My question is:
- Is my assumption on lawful residence correct?
- What is my situation now? Can I continue to work until I make fresh application? (I am planning to have same day application)

If you have any other advice, what is it what can I do know?

Thank you very much in advance...

CR001 · Post by **CR001** » Thu Aug 11, 2016 12:30 pm

What date did you receive the refusal?

Are you going to apply for AR? Though it won't make a difference as you did not meet the requirements in Feb.

alfonso · Post by **alfonso** » Thu Aug 11, 2016 1:17 pm

Hello,

Thanks for your reply. As you stated it does not make sense I will make a fresh application. As of today I complete my lawful residency (5 years)

CR001 · Post by **CR001** » Thu Aug 11, 2016 1:31 pm

CR001 wrote:What date did you receive the refusal?

alfonso · Post by **alfonso** » Thu Aug 11, 2016 1:35 pm

Ah sorry, I missed that question. I've received today.

Obie · Post by **Obie** » Thu Aug 11, 2016 2:58 pm

I think an AR may succeed , as i guess they refused in August.

If at the time of the decision, you meet the requirements, then you ought to have succeeded.

alfonso · Post by **alfonso** » Thu Aug 11, 2016 3:35 pm

Obie wrote:I think an AR may succeed , as i guess they refused in August.

If at the time of the decision, you meet the requirements, then you ought to have succeeded.

Yeah, but my application was on February. So I guess they consider my application date rather than review date? So that's why fresh application make more sense?

Obie · Post by **Obie** » Thu Aug 11, 2016 3:52 pm

In law, the relevant date, is the date of decision, as opposed to the date of application.

helpingperson · Post by **helpingperson** » Thu Aug 11, 2016 8:42 pm

Obie wrote:In law, the relevant date, is the date of decision, as opposed to the date of application.

This is very good point about date of decision, do you have a link or any source to back this up?

Also will be correct to say based on above that if someone makes any early 10 Years ILR application and by the time they decide, if he has completed 10 years, he will be fine and will be given ILR as his 10 years completed since he applied?

Thanks a lot.

Obie · Post by **Obie** » Fri Aug 12, 2016 10:49 am

Well Page 66 of the link below echo's that.

https://www.gov.uk/government/uploads/s ... es-v18.pdf

Page 16 also confirms that:

Long Residence Guidance

Nothing in paragraph 34 of the rules demands that an application be made within 28 days.

helpingperson · Post by **helpingperson** » Fri Aug 12, 2016 11:39 am

Thank you Obie.

This is what I copied from page 66

This is not a mandatory requirement of paragraph 34 of the Immigration Rules and you must
not reject an application as invalid if the applicant submits it more than 28 days before they
have completed the relevant qualifying period.

Page 16 says below:

Applications being considered more than 28 days before the required qualifying
period is completed
If you are considering an application more than 28 days before the applicant completes the
required qualifying period for long residence you must refuse. This is because the applicant
has not completed the required period of leave in the UK.
You must fully consider the case and mention any other reasons for refusal in addition to the
applicant not spending enough time in the UK to complete the qualifying period. For
example, all breaks in continuous residence.
Applicants who are refused under the long residence rules due to them submitting their
application too early can re-apply once they have completed their qualifying leave or up to
28 days before this.

What is your point or understanding of the rules?

Are you saying we can make an early application or not?

Sorry, I am not clear as what you are saying.

alfonso · Post by **alfonso** » Fri Aug 12, 2016 11:41 am

CR001 wrote:
CR001 wrote:What date did you receive the refusal?

Char, what is your suggestion?

I've got refusal letter yesterday. They refused because of 5 years residency rule. Today I am eligible because I've completed 5 years this August. So I am planing to make a fresh application in 10-14 days.

1- what is my current situation? Can I continue to work lawfully for 2 weeks until I apply ILR again?
2- what is my chance to get ILR this time?

Obie · Post by **Obie** » Fri Aug 12, 2016 11:43 am

@ helping person.
The main point is consideration of application.

My position is, if at the date of consideration, the requirements are met, that is , you are within 28 days of your qualify 5 years or 10 years , as the case may be, then you are entitled to succeed.

If an early application is considered before that, then the person cannot succeed.

helpingperson · Post by **helpingperson** » Fri Aug 12, 2016 11:49 am

Obie wrote:@ helping person.
The main point is consideration of application.

My position is, if at the date of consideration, the requirements are met, that is , you are within 28 days of your qualify 5 years or 10 years , as the case may be, then you are entitled to succeed.

If an early application is considered before that, then the person cannot succeed.

Thank you Obie. Got it. They will consider your application regardless how early you apply and if required residence is completed on the day they consider application then it is fine and you get ILR.

You were right previous both links that you submitted give this message, hint.

alfonso · Post by **alfonso** » Tue Aug 16, 2016 10:55 am

Can anyone help please? Still struggling to find a question to my answer?

- what is my legal status after ILR refused?
- can I make a new application after ILR refused?

ouflak1 · Post by **ouflak1** » Tue Aug 16, 2016 12:36 pm

alfonso wrote:Can anyone help please? Still struggling to find a question to my answer?

- what is my legal status after ILR refused?

Technically an overstayer since 12 February.

alfonso wrote:- can I make a new application after ILR refused?

According to Obie, yes. You can review his reasoning above, which I think is sound. I'm just not so sure myself. I suspect that once 3C leave disappears retroactively, that's it. It's gone. This idea of making an application to 'extend' your stay is something that the HO has caught on to and are beginning to take rather personally. I think they see it as a way that applicants, who otherwise would not qualify for ILR, are attempting to skirt around the rules in both wording and spirit.

My advice would be to return to your home country and consider returning by another means, if the UK is where you want to settle. But that's just me. There seem to be some who have managed to get a Tier 2 going and found a way to remain via that means, but I believe that is risky. Good luck.

asp · Post by **asp** » Tue Aug 16, 2016 10:44 pm

NOT an overstayer since Feb!

OP states application was made in time, so has been covered by s3C. Continues to be covered by s3C while an AR can be brought.

ouflak1 · Post by **ouflak1** » Wed Aug 17, 2016 6:56 am

asp wrote:NOT an overstayer since Feb!

OP states application was made in time, so has been covered by s3C. Continues to be covered by s3C while an AR can be brought.

I have re-read the 3C rules and I think you are right. As long as the application is made within the time frame that is allowed for AR to be filed, technically 3C does still apply if I've understood the wording correctly. The OP should be able to make a fresh application and it should be valid. As I said earlier, this appears to be a classic case of making a doomed application in order to extend leave until such time as a valid application can be made, something the Home Office if frowning upon more and more, but is not technically outside the rules yet.

alfonso · Post by **alfonso** » Wed Aug 17, 2016 3:10 pm

Obie wrote:In law, the relevant date, is the date of decision, as opposed to the date of application.

Could you please let me know in which page this is stated. I've gone through links that you provided but no luck.

Many thanks in advance.

Kind regards

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