ILR REFUSAL - URGENT GUIDANCE NEEDED

[Iamuk47]

Dear All,
Please, can anyone assist me with an urgent query, regarding an ILR refusal.

My Timeline;
I was allowed entry clearance to the UK under student visa on 23/09/2014 with a valid leave until 30/01/2019. I entered into the UK on 01/10/2014 on a student visa.

On 23/01/2019 before my visa was due to expire I made an application for Leave to Remain in the UK as a student and I was issued with Leave to Remain as student, which was valid until 30/10/2019.

On 01/10/2019 before my student visa was due to expire I made an application for Leave to Remain in the UK as a student and I was granted Leave to Remain as student, which was valid until 18/11/2020.

On 12/10/2020 before my student visa was due to expire I made a Family/Private Life application FLR (FP) and my application was refused on 01/04/2021 with in-country right to appeal.
On 07/04/2021 an in-time court appeal was submitted.
On 22/10/2021 a new application for Further Leave to remain as a spouse was submitted and the appeal was withdrawn after submitting the application, due to the change in circumstances. The application was refused on 11/12/2021 with in-country right to appeal.
On 21/12/21 an in-time court appeal was submitted.
On 21/06/22, the day of hearing, the Home Office withdrew the decision of refusal of my application and granted the FLR (M) 5 year spouse route visa.

However, Home Office emailed me saying this application is unsuccessful, but would vary this application to a 10 year route to settlement from the existing FLR(M) 5 years route.
The reason I do not qualify for ILR as, my continous stay came to an end on 22/10/2021, when I withdrawn my appeal and submitted a new application form on the same day.

Please, what shall I do?
and what are the options available?
Please, help.

[zimba]

I disagree with the refusal. The application made on 22/10/2021 ended your section 3C but the application was eventually successful which means you should benefit from paragraph 39E. Thus you maintained continuous residence. It is just that the period of 8 months will be ignored but by now you should be eligible for ILR

[Iamuk47]

Thanks, Zimba.

Highly appreciated. I couldn’t respond back any earlier as I was locked out of my account.

Indeed. I was under the same impression as yourself, that I have remained legal and submitted in-time applications. The reason for refusal is quoted as the end of Section 3C, which according to the HO ended on the day the appeal was withdrawn on 22/10/2021.

Now they have offered me to vary my application to a 10 year family route, even though I am currently on a 5 year family route to settlement. A bit harsh!

[zimba]

Section 3C coming to an end does not matter as paragraph 39E should apply in your case. What they offered is standard but quite undesirable.

Here is what the long residence caseworker guide says:

The applicant must also not be:

•on immigration bail
•in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded

Disregarded periods of overstaying will not break continuous residence but will not count towards the 10-year qualifying period.

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

[Iamuk47]

Thanks for your response.

Apologies for the delay in coming back to you.

Is it worth challenging Home Office on this decision? Also, the application made on 22/10/21 was refused on 11/12/2021 with ROA.
Since, I was forced to spend the time on 39E by the incorrect decision of home office, which they later agreed that they made a mistake and I had legal stay at the time of that 22/10/21 application and granted me the FLRm visa on 11/09/22. The question is the same decision could’ve been given to me on 11/12/21, so I was technically forced to spent time on 39E due to incompetence of Home office, not my fault. Why am I penalised for their actions?

Any guidance on the above? Thanks

[zimba]

Yes, as I explained above the decision has to be challenged given they failed to follow their own rules.

Note that 'Spent time under paragraph 39E' makes no sense. There is no leave granted under paragraph 39E. Paragraph 39E simply allows time spent without valid leave to be disregarded.

[Iamuk47]

Many thanks!