Visa Application withdrawn; if passport returned early?

[greensal80]

Hi there,
I have been waiting for my partner visa for 4 months, however I need to travel urgently to Australia to be with family next month. As the application is less than 6 months old, the Home Office can not advise on when it will be processed... So I have withdrawn my application (annoyingly)- and resigned from my job. When I called the HO to withdraw the application, they said it would take 20 working days; which coincides with my work notice period. HOWEVER, what if my passport is returned (without visa)- earlier than expected? Will I have to stop working immediately and leave the country? Will my employer be notified that I have withdrawn the application? I understand there is a 28 day grace period before I have to be out of the UK, but from when is this calculated?
I have been in the UK for 7 years and do not want to be in breach of any immigration laws, as I wish to return here once things in Australia are ok.
Any information would be HUGELY appreciated!
Many thanks
Greensal

[geriatrix]

What is/was your immigration status before you applied for leave as a partner?
When is/was the leave in that immigration category due to expire?

[greensal80]

Hi Sushdmehta,
Thanks for your speedy response!
I was previously on a tier 1 visa which expired in April (I sent my partner visa application on the 3rd March). Prior to that I had a HSMP visa (have been working in the UK since 2005).

[Casa]

Reading a previous post from January, surely you would need to apply for FLR(M) to switch from Tier 1 to a 'partner' visa...not ILR which you appeared to apply for?

[greensal80]

...Indeed it was an FLR(M), based on my relationship with my British partner.

[geriatrix]

Section 3C leave ceased the day you requested withdrawal of your application. From that day on, you have no legal right to work in the UK. If you continue to do so, you'll be in breach of immigration rules.

Usually, any stay in the UK as a overstayer for more than 28 days affects any subsequent entry clearance applications but this will be irrelevant (will not affect) if you apply for entry clearance as a spouse, civil partner or unmarried or same-sex partner of a British citizen or settled person.

[greensal80]

This confirms what I suspected, so good to know for certain. Thanks!

[Greenie]

Section 3C leave ceased the day you requested withdrawal of your application. From that day on, you have no legal right to work in the UK. If you continue to do so, you'll be in breach of immigration rules.

Usually, any stay in the UK as a overstayer for more than 28 days affects any subsequent entry clearance applications but this will be irrelevant (will not affect) if you apply for entry clearance as a spouse, civil partner or unmarried or same-gender partner of a British citizen or settled person.

The guidance document suggests that the application is treated as withdrawn from the day the passport is returned in response to the request rather than the day the request is made and consequently this is when i would say 3c ends. If the withdrawal and therefore 3c takes effect from the day of the request this would result in overstays of more than 28 days given the time it takes them to return the documents.

[geriatrix]

4.1 refers to return of passport for travel before an application is determined and states exactly what you have mentioned - that the application is treated as withdrawn on the day the passport is returned in response to the request.

On the other hand, 4.2 refers to withdrawal of application (not travelling) and states that such requests be accepted only in writing and that the date of posting of such request is considered as the date of withdrawal.

Ambiguous again(?) or does the law specifies what the date of withdrawal is and when Section 3C ends depending on the reason of withdrawal?

[Greenie]

Perhaps (giving the UKBA benefit of the doubt) the difference is intentional as a person who is withdrawing the application in order to travel is showing an intention not to overstay, whereas a person who is merely withdrawing their application but states they do not wish to travel should not continue to benefit from 3C leave? I don't think the 1971 Act specifies the effective date of withdrawal. I just don't think UKBA could reasonably argue that a person who requests return of their passport in order to leave the CTA and who then has to wait 4 weeks for return of the passport should be treated as an overstayer.