ILR (LR) Appeal in process , while Tier1 extension soon due.

[Legend1]

As I said, your application must be granted. Variation or not has no effect. If you vary, the application still needs to be granted.

Hi Zimba,
i was searching and found this intresting so commenting hope i'm not interrrupting the topic. I'm trying to have a bit of clarity and understading how this works ?

i'm in UK since 2010, and completed 10 years in March 200. i recently applied for ILR 10 years LR, but my application was refused with Appeal Right. in deciosion ' mentioned that when my appliaction for Tier1 Ent, which was submitted in Dec 2016 and then refused in March 2017 with Right of AR refused so at that time my 3C broke. .

I have a question regarding to this sennerio that after the application and AR refused , i applied for fresh Tier1 Application within 14 days , which then Granted after 2 years long wait in April 2019. Hence i reguralise my stay after refusal ! ,
but still my application has been refused for 10 yrs LR .... and now Lodged the appeal waiting for court reply.
recent case of Hoque and Ors ... according to that i have a Bookended Gap which can be ignored, Zimba kindly could you guide me in this prespective wether UKVI is right or I have a merit in case ?
i have valid leave of Tier1 until 2022.
thanks

[zimba]

If your regularised your stay, then UKVI was wrong to refuse. This is similar to the case of Masum Ahmed v SSHD which the previous judgment in favour of HO has now been correctly thrown out in the court of appeal.

[Legend1]

If your regularised your stay, then UKVI was wrong to refuse. This is similar to the case of Masum Ahmed v SSHD which the previous judgment in favour of HO has now been correctly thrown out in the court of appeal.

Thanks Zimba for the prompt response,
since i came to UK i have always been on PBS, i never applied for any human rights applications. eversince my 10 ILR refused on 276 b(i)a, i asked many solicitors after the refusals of ILR LR in September 2020 but none of them were able to satisfaty me wether i have merits in my case or not ! most them were saying like 50/50 chance. when i asked wether if my 3C was broke then why my Application were granted in April 2019 ? no Satisfactory answer was provided by any solicitor !

just curious about as i have lodged the Appeal in September and not heard anything since then .... is there any other option if i could use and ask the caseworker for reconsoderation of my case rather than going to court and wasting everone valueable time?

As in current prespective i think i have a better enough grounds after "Hoque and Ors vs SSHD case outcomes. As my case is similar to 'Masum Ahmed' case too.

Thanks in Advance Zimba.

[zeeshi1122]

Hi, May i ask what the actual refusal letter says about your gap like how long gap u have in total?

According to new judgment u should be ok as in court you just need to present the recent 10 years lawful residence (Hoque & ors v SSHD) case.

There is a chance ukvi withdraw their decision before the hearing date and grant you ilr.

[Legend1]

Hi, May i ask what the actual refusal letter says about your gap like how long gap u have in total?

According to new judgment u should be ok as in court you just need to present the recent 10 years lawful residence (Hoque & ors v SSHD) case.

There is a chance ukvi withdraw their decision before the hearing date and grant you ilr.

hi bro, sorry for late reply for some reason i didnt see your comments, was browsing through the forum and found your reply. reason for refusal,

" You had leave to remain until December 2016 and on the same day you made an in time application for leave to remain. That application was refused on March 2017. You lodged an in time AR March 2017 and on 2 April 2017 the decision to refuse was maintained. It was on that date that your continuing leave under the provisions of Section 3C ended. On 1 May 2017, you submitted an out of time application and that was granted on April 2019.

Therefore, you did not have lawful leave to enter/remain in the United Kingdom from 29 April 2017 to march 2019. Given this gap in your lawful residence, it is considered you cannot demonstrate 10 years continuous and lawful residence in the United Kingdom.Therefore, your application for indefinite leave to remain in the United Kingdom on the basis of 10 years lawful and continuous residence is refused under Paragraph 276D of the Immigration Rules as you do not meet the requirements of 276B(i)(a)."

Most recently the court asked the the home office to submit the bundle which they did, but only attached the refusal letter and my the copy of application which i have submitted for ILR. I'm now waiting to be asked to submit the grounds for my case by court.
hope for the best .

What about your case .... any updates ?

[zeeshi1122]

Hello,

No worries..!

Your AR concluded on 2nd April and you applied for new application on 1st of May. You should apply within 14 days.

I think UKVI is right to refuse the application as after November 2016 new application should be within 14 days.

I am still waiting for my application decision i have gap as well but less than 14 days. Will update you once in get the decision.

Good Luck.

[Happydays11]

Zeeshi,

if he is late he should not be given in country PBS extension in first place, app must be refused for overstay.

if he was given leave its means there is discretionary had been applied and time has been ignored .

although there is gap but there is hope also.

Good Luck

[Happydays11]

and i dont understand you received decision on 2nd April 2017 and you did not have lawful from 29 April 2017.

it has to be well before 29?? as per 14 days rule or they consider 28 days here

[zimba]

@Legend1 In your first post above you said that you applied within 14 days of AR being concluded, the refusal letter you shared now says otherwise. My advice above was strictly based on what you said before. So did you apply within 14 days of AR being concluded or not?

[Happydays11]

@zimba

that what i was thinking.

1). i have seen your comment on other post if the decision letter dated 2 April then end date will be (Decision date 2 + 2 Days of 3C end and plus 14 days which will ended on 18th April) is that right?

2). but when i see HO reply he has OS from 29th April which doesn't make sense as he received decision on 2nd.

3). technically even if he apply after 18 April 2017 why his application was entertain and granted whereas rule says OS can't make in country PBS Applications if he/she is OS.

4). if his app was accepted under 39E and granted its means his OS has been disregarded.

[Legend1]

Hi Mods and members,

sorry for the error while typing in my previous post, the application was refused with right to AR in March 2017, then lodge the AR within 14 days which was subsequetly refused on 27th or 29th April 2017. It has been mentioned in AR refusal " to tell the other reasons to stay in UK within 14 days of recieving the AR Refusal letter" which I did and made the fresh Application on the 10th May 2017.
As what group member 'Happaydays11' mentioned as per my understanding I agree to that, if i have been granted the PBS leave within immigration rules then my Overstaying period should be disregarded according to 39E.

kindly I also need help with respect to the Arguments/Ground for appeal, as HO only has submitted the same refusal letter,the appliction copy which i have submitted for ILR LR online, in their grounds against me! no other additional documents apart from that. I consulted with one barrister who is speciaist on 10 years LR cases, but the amount of fee he is asking/charging is beyond my limit specially in this Covid times as most of our earnings are badly effected.

[Happydays11]

U are trying to hide dates which is ok

Above u are saying u granted in April 2019 but in refusal letter they mentioned OS till march 2019. Which one correct march or April

Anyways given details my assumption is your 3c ends in 29th April 2017 and then u applied within 14 days which is ok under 39e that’s why u granted Leave

My question to u is that your second or third app

Did u write any confusing statement in your application form (I suspect that’s why they present your application as evidence)

I leave to seniors I just trying to establish what’s going on

[zimba]

If your regularised your stay, then UKVI was wrong to refuse. This is similar to the case of Masum Ahmed v SSHD which the previous judgment in favour of HO has now been correctly thrown out in the court of appeal.

So my original advice stands. Your ground for appeal is the recent case law as I mentioned above

[Happydays11]

If your regularised your stay, then UKVI was wrong to refuse. This is similar to the case of Masum Ahmed v SSHD which the previous judgment in favour of HO has now been correctly thrown out in the court of appeal.

So my original advice stands. Your ground for appeal is the recent case law as I mentioned above

but @zimba what advice you could give to people if app successful on second attempt under 39E.

what they can write in covering letter to avoid unnecessary ?

[zimba]

Well, the covering letter should mention that the interpretation of the rules under paragraph 39E has been cleared in case law.
FYI OP is going through with an appeal which means UKVI has to be challenged to follow as per the recent case law.

[Happydays11]

i know i wish him good luck.

is the below lines are ok for covering letter.?

My second application in 2017 was successful and under interpretation of the rules under paragraph 39E has been cleared in case law that any overstay will be disregard.

[zimba]

i know i wish him good luck.

is the below lines are ok for covering letter.?

My second application in 2017 was successful and under interpretation of the rules under paragraph 39E has been cleared in case law that any overstay will be disregard.

Sure but I do not think a covering letter is necessary. It may or may not help

[Legend1]

Thank you once again
I appreciate your valueable response Zimba ,
I have one more question regarding my previous stay as spent 3 yeras on Tier 2(G) (2014 to 2016), but then as I mentioned earlier post the refusal caused a Gap in my 10 years stay. If i switch back to Skill route, would i be able to combine my previous 3 years spent on Tier2 G + Tier1 E + skill route ?

I read about it as long as the latest leave is (Tier2 Or Skill Visa) we can combine it with Tier1 Entrepreneur to be eligible for 5 years ILR !

As I'm aware that the Home office very strict on 10 years LR if there is any period of "Overstaying" , but will it be the same case on 5 years ILR too or I can't count that Previous 3 years spent on Tier2 as according to Home Office there is Gap after that because of refusal ?

[zimba]

It does not matter what path you take. Paragraph 39E applies in that case too to the gap

[Legend1]

Hi mods,
hope you all doing well, in advance forgive me if this is not the right place for this post.

my ILR was refused with appeal right in sep 2020. i have won the appeal in Lower Tribunal in Dec 2021, but the respondant asked for permission to upper tribunal.

1-I have a query regarding my current leave on Tier 1 (entreprenuer) which is going to expire soon,
A- can i wait until the appeal final decision ? or
B- can make the extension application while the ILR Appeal in process?
C- if i apply for tier 1 extension or FLR(fP) will my ILR Appeal will be considered withdrawn ?
2- if i wait until the ILR Appeal final decision and in case it's not in my favour (God forbid) , will I be allowed to make an extension application for tier1 within 14 days ?
3- my wife is my dependant on tier1 , her leave expires same time as mine, if i dont apply for my extension and wait for appeal decision, which application best suit to save my dependant 3C leave ?
4- my son was born last year in UK, do i also need to apply for his leave or he should be fine until my ILR Appeal is decided ?
5- i have some further questions regarding previous refusal and current appeal can i ask in this thread or i have to make separate post ?

Thanks in advance for your time and support, it means alot.

[zimba]

As you have a valid visa and your ILR application was decided before your visa expiry, you do not get any Section 3C. This means if your visa expires you become an overstayer, even if you continue having a pending appeal. The Section 3C guide says:

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

Now, this may not be a bad thing as you are not allowed to make non-human rights applications, if under section 3C (e.g a Tier 1E application). That is because Section 3C must end for a new application to go ahead. So if you are under section 3C and have a pending appeal, then you must withdraw before applying for a new application.

However given that you have no section 3C at all, you and your wife should be able to apply for a Tier 1E extension as normal and before visa expiry and I believe you should be able to pursue the appeal process for your refused SET(LR) separately

[Legend1]

Thank you for the response,
one more question ;
Does the time spent on immigration bail count towards the 10 years Long residence if the subsequesnt application later granted ? note (the Immigration bail was granted followed by refusals of Tier1 applications and Admin Review)
thanks

[vinny]

276A. For the purposes of paragraphs 276B to 276D and 276ADE(1).

(b) “lawful residence” means residence which is continuous residence pursuant to:

• (i) existing leave to enter or remain; or
• (ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or
• (iii) 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.

If the immigration bail was within Section 11 of the 1971 Act, then yes.

[Legend1]

276A. For the purposes of paragraphs 276B to 276D and 276ADE(1).

(b) “lawful residence” means residence which is continuous residence pursuant to:

• (i) existing leave to enter or remain; or
• (ii) temporary admission within section 11 of the 1971 Act (as previously in force), or immigration bail within section 11 of the 1971 Act, where leave to enter or remain is subsequently granted; or
• (iii) 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.

If the immigration bail was within Section 11 of the 1971 Act, then yes.

Sir I appreciate your renponse to my query.
below is the latest arguments from respondent :
It is arguable that the Judge erred in law in finding that the Appellant's
residence was lawful residence under
Rule 276A(b)(ii) on the basis that the Appellant was granted immigration bail. Rule276A(b)(ii) relates to immigration bail under s11 of the Immigration Act 1971. That provision deals with the circumstances in which a person arriving in the UK shall be deemed not to have entered the UK, one of which is where
the person is granted immigration bail. It is arguable that this provision does not apply to the Appellant, whose grant of immigration bail came after the expiry of his leave to remain in the UK .

now i have to spend thousands more to fight in upper tribunal on top of that i need to extend my visa for myself and dependants which is causing a financial hardship. sometime its look a delibrate attempts from respondent to drag a person to the limits where a person is not able to fight further and leave the country.