Overstay but EX1 applies. Disregarded by home office?

[Jahanara14]

First post. My immigration history at end of text.

I am hoping I can apply now for a 10 year ILR instead of FLR till 2026 and then apply ILR.

The reason is,

A home office letter from 2019 states I have completed 71 months stay (ie arrived 2013 and up-to then 2019) however if my overstay during 2016 was considered it would have stated around 35 months (ie 2016 to 2019). Here is the letter quoted.
“As you have only previously completed 71 months of leave to remain on the basis of your family life under paragraph D-LTRP.1.1 you fail to meet the requirements of E-ILRP. 1.3 of Appendix FM. In order to qualify for settlement you must have completed a continuous period of at least 120 months in the route that you were last granted under.”

This letter is in response to an incorrect application I made for a 5 year ILR as I wasn’t aware I was a 10 year Family route LR since Oct 2016. This letter concludes my ILR application has been instead considered and continue/granted FLR family route.

Access report states in 2016,
‘Immigration Status Requirement
Does the applicant meet the eligibility immigration status requirements: E-LTRP .2.1-2.2?
2.2. Met. “App is not in UK on temporary admission or temporary release and though she is in breach of the immigration laws as she has overstayed for more than 28 days EX 1.applies.”

I am aware this is not an issue or consideration of 28 day rule or special reasons for late applications. It’s specifically about this quoted letter and how it and the access report seem to not consider the overstay when calculating my continuous stay.

I’ve spoken to numerous advisors that either say they don’t know why letter states 71 months and safe bet is to start 10 year clock from 2016 or they say it’s a letter/caseworker overlooked error.


Immigration history
Currently in UK for 128 months in total, including overstay. (87 months if counting continuously lawfully from last overstay end)
First arrived Apr 2013 with spouse visa 5 year route, valid till Dec 2015.
Applied FLR 5 year spouse, rejected - old form used, rejected IHS fee not paid again and not in time. Oct 2016 Rejected not meeting financial requirement, moved to 10 year family life valid until 2019.
2019, Applied 5 year ILR, refused because actually on 10 year route and at this point only completed 72 months out of 120 months so 10 year ILR not considered, granted FLR family life valid till 2021.
2021 applied FLR M (mistakenly, should have done FLR family route) granted till June 2024.

Thank you.

[secret.simon]

Dates may be very relevant here.

valid till Dec 2015.
Applied FLR 5 year spouse, rejected - old form used, rejected IHS fee not paid again and not in time.

When was the form for this extension submitted? Was it ruled invalid? If so, that means that that application was never made. And that means that you did not have Section 3C leave at that point in time.

Oct 2016 Rejected not meeting financial requirement, moved to 10 year family life valid until 2019.

Was this a separate and different form submitted? If so, when was this form submitted?

EX.1 merely moved you from a 5 year pathway to a 10 year pathway. It does not preserve any pre-existing leave if continuity of leave is broken.

If continuity of leave was broken because your earlier application was invalid, your Long Residence Clock would have restarted in Oct 2016.

So a lot depends on whether the application in Dec 2015/Jan 2016 was invalid.

[Jahanara14]

The first extension was submitted around 16 Jan 2016, 21 days late but no mention of 3c. The issues are months later in Sept 2016 they mention “out of time no 3c” because of a different issue I’m not sure but not the initial ext application.

There was a separate application in July 2016 (we can’t recall why) that October 2016 decision to reject due to finance and move from 5 to 10 year.

My main question is why the 2019 letter from home office calculates my continuous stay as 71 months if I had all these issues and break?

Quote from letter,

As you have only previously completed 71 months of leave to remain on the basis of your family life under paragraph D-LTRP.1.1 you fail to meet the requirements of E-ILRP. 1.3 of Appendix FM. In order to qualify for settlement you must have completed a continuous period of at least 120 months in the route that you were last granted under.

This quote agrees with your comment that it leave starts from last grant but it contradicts the stated 71 months.