Long residence ILR refused due to EUSS application waiting time deemed unlawful stay in UK

[fapicloud]

Hello, hoping for any advice on appeal or administrative review ground following an long residence ILR refusal.

Background
2013 - Granted Leave to Remain on a 10yr Family/Private Life Route
2015 - FLR renewed for 2.5 years
2018 - FLR renewed for 2.5 years

Early 2021 - Applied for EUSS which dragged on into late 2022 with the HO corresponding and renewing my right to work during the time. Application dragged on through various submission suggested by HO, further delayed by an ongoing case which would impact the decision according to HO. Eventually refused in August 2022.

Aug 2022 - Immediately applied for FLR to avoid becoming an overstayer which was granted

2023 - ILR application submitted following 10years of legal residency in the UK however refused with no ground for appeal - on the basis that the period when the EUSS application was ongoing between 2021 and 2022 are considered overstayed periods.
This is despite the fact the HO were in constant communication, renewed my Right to Work with my employer and I continued working and paying taxes during the period.

Would appreciate any advice on any ground for an administrative or judicial review.

Many thanks. Farah

[meself2]

Can you post the exact wording/paragraphs for decision from refusal letter (without personally identifiable information)?

There were cases where CWs incorrectly considered EUSS applications as under EEA regulations, which don't have 3C, eg post1938166.html#p1938166

[zimba]

An application under Appendix EU does engage section 3C. Seems the CW is wrong here

[fapicloud]

Can you post the exact wording/paragraphs for decision from refusal letter (without personally identifiable information)?

There were cases where CWs incorrectly considered EUSS applications as under EEA regulations, which don't have 3C, eg post1938166.html#p1938166

Many thanks for your response and related post, would appear the CW has taken the same incorrect stance - wording below.

While it is noted that you held valid leave when lodging your 2 applications under the European Union Settlement Scheme (EUSS). However, these applications were made under EEA regulations and so did not engage Section 3C of the Immigration Rules. Accordingly, these applications did not extend the leave which you held at the time of these applications.

[zimba]

That is an incorrect assessment. EUSS applications are NOT under EEA regulations but under Appendix EU of the UK immigration rules. This should be revered in an admin review

[fapicloud]

Many thanks for your response, will proceed with an Administrative review within the time limit.
Are there any articles or case law that can be referenced in relation, EUSS falling within Appendix EU of UK immigration?

[CR001]

What was the basis of rhe eussapplication?

What is ir was the relationship to the eu citizen?

[zimba]

Many thanks for your response, will proceed with an Administrative review within the time limit.
Are there any articles or case law that can be referenced in relation, EUSS falling within Appendix EU of UK immigration?

EUSS and any status granted through that scheme is due to the introduction of the Appendix EU. That is self-explanatory

[fapicloud]

What was the basis of rhe eussapplication?

What is ir was the relationship to the eu citizen?

The EUSS Application was on the basis of having a British citizen (EU) dependant child, does this have any relevance on the application be falling within Appendix EU of UK immigration?

[CR001]

If you already held valid leave, which you did, you did not qualify for zambrano. This was a ruling by the court in the case of Akinsaya

[fapicloud]

Update - Thanks for all the advise so far, I am in the process of submitting an Administrative review accordingly.
However reached out to my case worker at the Citizen's Advice Bureau who stated the application is not eligible for an administrative review because
1. The HO CW hasn't provided the option or grounds for appeal i.e. they haven't given it to me.
2. According to the CAB CW, I would only be offered the option of an AR in I didn't have current leave to remain or this was nearing expiration.

I fully intend to proceed with the AR to challenge the incorrect adjudication by the HO CW. Please provide any guidance in view of the points stated by the CAB CW, what are the chances of the AR if not been told in the decision letter if you can ask for the decision on your application to be reviewed or right to appeal which is the case here. Would this be a basis for rejection without even giving consideration?

Ask for a visa administrative review
If you're in the UK
You’ll be told in your decision letter if you can ask for the decision on your application to be reviewed. This is known as an ‘administrative review’.

[zimba]

The long residence applications are considered human rights applications, so the right to appeal should be granted: https://assets.publishing.service.gov.u ... appeal.pdf