Do I qualify for ILR via Long Residence?

[Slamane]

Hi Everyone,
I would really appreciate if you could advise me on what are my options now for settlement

Tier 4 student ( arrived in UK 02/02/2010)
Studied MSc Pharmaceutical Science at the University of Greenwich 1 year till 31 May 2011

Applied PSW on time on 2011 and granted PSW on 4 July 2011 till 04 July 2013

Applied tier 2 general on time on July 2013, visa got rejected because of bank split and payment couldn’t be made

Applied tier 2 again On September 2013 and also rejected saying that I was overstayed this time my passport was with home office.

Applied tier 2 again on December 2013 without passport and with a cover letter stating everything, and making them convinced. Visa was granted From 24/01/2014 till 06/01/2017.

Applied the extension on time and on 25 January 2017 I was granted the extension till 06/01/2020.

On October 2018 my sponsor licence got revoked, I didn’t receive any curtailment till now. However I searched for the other sponsor

I applied for tier 2 general With another sponsor and visa got rejected, within 14 days I did the Administrative review and it also got rejected however they amended their few mistakes. I was again given 14 days.

I applied to different sponsor where I am at now, and this one is rejected on 04 December 2019. Now I have 14 days to act.

Am I qualified for long residence settlement which is due on 02/02/2020.
If I am then, I have still got a month or so to qualify, how do I buy that time? Is admin review a gud option again??

Regards

Sujan

[zimba]

Your lawful residence is broken, so you cannot apply for long residence. When you applied in July 2013, your application was returned as invalid. An invalid application is treated as if such application was never made. So this means between 04/07/2013 (your visa expiry) and 24/01/2014, you were overstaying which breaks your lawful residence. You may only be eligible for long residence in 2024.
If your current visa is valid until 06/01/2020, you can apply for a new in-time application until then. Why was your last Tier 2 visa application refused ?

[Slamane]

Thank you Zumba.

My tier 2 visa rejected mainly because of not genuine vacancy.
zimba what about this exceptional circumstance. Once my visa was rejected then I clearly said to them because of the unforeseen circumstances My visa was rejected otherwise I would have in time application. Why then They granted me visa even I was overstayed??

ILR, calculating continuous leave in UK guidance:::
Breaks of leave in temporary leave applications submitted before 24 November 2016
During this period, the Immigration Rules allowed you to disregard a period of overstaying of up to 28 days before the application was made which led to the next grant of leave.
The 28 day period of overstaying is calculated from the latest of the:
• end of the last period of leave to enter or remain was granted
• end of any extension of leave under sections 3C or 3D of the Immigration Act
1971
• point a migrant is deemed to have received a written notice of invalidity, in line with paragraph 34C or 34CA of the Immigration Rules, in relation to an in-time application for leave to remain
In the following exceptional circumstances you can disregard applications made more than 28 days after the expiry of leave:
• serious illness where the migrant or their representative are unable to submit the application in time. This must be supported by appropriate medical documentation
Page 14 of 19 Published for Home Office staff on 1 October 2019

• travel or postal delays which mean the migrant or their representative are unable to submit the application in time
• inability to provide necessary documents. This only applies to exceptional or unavoidable circumstances beyond the migrant’s control, for example:
o the Home Office being at fault in the loss of, or delay in returning, travel
documents
o delay in obtaining replacement documents following loss as a result of theft,
fire or flood. These must be supported by evidence of the date of loss and the date replacement documents were sought
For ILR, you must disregard any period spent in the consideration of applications for leave to remain where the application was made (not decided) no more than 28 days after the expiry of leave, but before 24 November 2016

Does this helps me out??

Regards

Sujan

[zimba]

My visa was rejected otherwise I would have in time application. Why then They granted me visa even I was overstayed??

HO can exercise discretion to grant a visa however discretion is not applied without exceptional circumstances when you do not have 10 years of lawful residence for SET(LR). Your application was returned as invalid due to payment and that is not an exceptional circumstance. A similar case was brought to the supreme court and in 2016, the court verdict was in favour of the HO.

In the case of Mirza v Secretary of State, the supreme court criticised this law but maintained the decision made by HO.

Also, the guide you are quoting from is for 5 year ILR routes and does not apply to long residence applications. Remember you never had section 3C as an invalid application does not lead to section 3C protections.
Long residence guide: https://www.gov.uk/government/publicati ... -residence

[Slamane]

Thankx Zimba

Is there is any chances of applying to tier 2 again? As by January 2020 I will be on tier 2 for 6 years. Or is the period from licence revocation till now will not count on tier 2, if so then I can still apply for tier 2 right?

[CR001]

Thankx Zimba

Is there is any chances of applying to tier 2 again? As by January 2020 I will be on tier 2 for 6 years. Or is the period from licence revocation till now will not count on tier 2, if so then I can still apply for tier 2 right?

You cannot hold a tier 2 General visa for more than 6 years. IF you can get a sponsor, you will only get a visa to your 6 year tier 2 mark, ie January 2020.

[Slamane]

Thankx CR001

But I haven’t been on tier 2 since October as I do not hold any sponsors till now. I am applying for tier 2 extension however not granted. Does this still make me on tier 2. If yes then will I be qualify for ILR via tier 2.

[CR001]

If your visa has not been curtailed yet by HO, then you still hold a tier 2 visa and the 6 year cap applies.

Are you currently working??

[Slamane]

Visa not curtailed yet. No I am not working.

[Slamane]

If I still hold a tier 2 visa from my previous employer where I have visa till jan 2020 then why Am I not eligible for ILR visa tier 2 route? Employer is ready to employ me however they don’t have licence??

[CR001]

If I still hold a tier 2 visa from my previous employer where I have visa till jan 2020 then why Am I not eligible for ILR visa tier 2 route? Employer is ready to employ me however they don’t have licence??

Because they don't have a licence and your are not employed by them as a valid approved sponsor.

[CR001]

Why was their license revoked??

Are your sure ho has your correct address and that a curtailment letter has kit been sent to an old address if you did not update ho??

How have you been maintaining yourself financially since you left your sponsor?

[Slamane]

Licence Revoked due to Sponsor not fulfilling its duties and in genuine vacancy.

I am sure that I didn’t get the curtailment letter. I changed the address and also informed home Office and got the confirmation of changed address. I am regularly checking my previous address as well.

I didn’t get the curtailment letter maybe because I immediately searched for other sponsors and applied tier 2. Just a thought or My previous sponsor didn’t inform the HO that they stoped sponsoring me due to licence revocation.

I am maintaining myself with the help from my friends and my wife is working.

[Slamane]

Since I haven’t got the curtailment, do I have to do the administrative review for last tier 2 rejection as I have 14 days to act.

[zimba]

Since I haven’t got the curtailment, do I have to do the administrative review for last tier 2 rejection as I have 14 days to act.

You can however what kind of administrative errors have they done ??!

[Slamane]

i do not want to do the administrative review as previous review was maintained as it is so I believe there is no chance for overturning the decision. What do you suggest which immigration category should I go for. Even after being here for 10 years I couldn’t get the ILR.

The reason for rejection is below Here,

The Secretary of State is therefore not satisfied that you have met the full requirements to be awarded the minimum required points under Appendices A.
The Secretary of State is therefore refusing your application because there are reasonable grounds to believe the job described on your Certificate of Sponsorship is not a genuine vacancy, when assessing, on the balance of probabilities, paragraph 245HD(f) with reference to Appendix A paragraph 77H and the additional information or evidence requested under paragraph 245HD(f).


But there was a genuine vacancy as the previous two general manager of the company left after getting ILR.

I am very confused and don’t know what to do. Do I have to get assistance from solicitor if there is any chance for ILR.

[Slamane]

Your lawful residence is broken, so you cannot apply for long residence. When you applied in July 2013, your application was returned as invalid. An invalid application is treated as if such application was never made. So this means between 04/07/2013 (your visa expiry) and 24/01/2014, you were overstaying which breaks your lawful residence. You may only be eligible for long residence in 2024.
If your current visa is valid until 06/01/2020, you can apply for a new in-time application until then. Why was your last Tier 2 visa application refused ?

Hi zimba,

As you said my application on July 2013 was invalid but once the application get rejected I will still have 28 days to apply after rejection however HO took 7 weeks to return my documents. I have a proof of that. Will that work?

[zimba]

A refused application and an invalid application are not the same. I explained this already. The 28 days grace window applies from the day you became an overstayer which in your case is 28 days after your visa expiry. As I repeated several time now, you application was NOT refused but returned as invalid (like as if it was never made) This is why when you applied again in September 2013, HO refused your application as the 28 days window had already passed (it was 28 days after your visa expiry as you had no Section 3C)

I would like to suggest something. As SET(LR) has appeal rights, I suggest to go ahead and apply for SET(LR) in January before your visa runs out and take a risk. You will be protected under Section 3C. Include a cover letter and request that the time spent overstaying should be ignored as HO did not serve the refusal correctly.

[Slamane]

Thank you zimba,

I think I will try for SET(LR). Just a query, for any invalid application due to payment as per the guidelines they should give us 10 days to rectify the mistakes, however I was not given.

[zimba]

Thank you zimba,

I think I will try for SET(LR). Just a query, for any invalid application due to payment as per the guidelines they should give us 10 days to rectify the mistakes, however I was not given.

That only changed recently, there were no such rule in place in 2013

[Slamane]

Is it always best to get the representative for SET(LR)? What do you suggest I should do for Priority application or postal standard. Can I apply now and book for 06/01/2020.

[zimba]

Is it always best to get the representative for SET(LR)? What do you suggest I should do for Priority application or postal standard. Can I apply now and book for 06/01/2020.

No need for representative. I suggest to apply when eligible in the beginning of Jan. Your case has complexities so I suggest the standard route

[Slamane]

Thankx Zimba,

I think I will do the same. What can I do for my wife she was my dependent and her visa also expires on 06/01/2020?

[seagul]

Thank you zimba,

I think I will try for SET(LR). Just a query, for any invalid application due to payment as per the guidelines they should give us 10 days to rectify the mistakes, however I was not given.

Many applicants whose applications were returned invalid later found with their banks that no attempt was made to deduct the fee from UKBA/UKVI side. If someone gets that proof from their bank then can challenge the decision but if in second attempt the application gets refused again then certainly the period from reapplying to onward will be treated overstaying and break the long residence continuity.

[Slamane]

Thankx seagul for your input.

I got this. But I applied third time and the visa granted. My concern is why was I granted visa on third attempt ( second application and third application was exactly same, tier 2 for same sponsor, same job) . They granted me the visa based on my cover letter stating my circumstances were ought from the payment issue. That means they accepted my circumstances otherwise I was a overstayer for second rejection why not for third as well. If it was refused then I would have left the country in time.