10 years long residence with unclear section 3C

[UKBA HUNTER]

If during 10 years only 1 time when tier4 application has been made before visa end but refused after 5 months processing time due to funds. And options given either to appeal in 10 days or make fresh application with more evidence as reconsideration and if fresh application has been made just within 5th day of refusal decision prior to appeal 10th day and the fresh application has been approved in 20 days. Does this a gap in 10 years lawful residence. Any comment.

[quantum1]

There second application is out of time. There is a gap in lawful residence of 25 days. This is a small gap and will probably be overlooked due to discretion.

[vinny]

276B(v)

[UKBA HUNTER]

Many thanks for replies. In SAR report no where it is written that how many days 2nd application is out of time. Only written "Valid out of time". Moreover, 2 different ukba operators given two different reply over this query.

Operator 1:
The duration you spend in 2nd application will be covered as deemed leave.

Operator 2;
Your 2nd application that you send instead of making appeal on the 5th day of getting refusal decision is out of time for 5 days and therefore, this will be disregarded as its only because its only 1 time in 10 years.

Any comment.

[quantum1]

Operator 2 is correct

[UKBA HUNTER]

thanks. I believe it should not break 10 years residence based on the sense too that in 2nd application the visa has been granted promptly followed by 1 more psw visa with no problem and for psw visa under old rule there were 20 points for the legal study period that means its not break at all.
any input comment.

[cs95tdg]

And options given either to appeal in 10 days or make fresh application with more evidence as reconsideration and if fresh application has been made just within 5th day of refusal decision prior to appeal 10th day and the fresh application has been approved in 20 days. Does this a gap in 10 years lawful residence.

Just to clarify what you have said, are you saying you made a fresh application 5 days after you received the refusal decision? And that this application was then approved in 20 days after that? If so then you would have a 25 day break in lawful residence. As per the guidance that would be disregarded - See page 12.

The following Long Residence guidance will be useful. http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

[UKBA HUNTER]

@cs95tdg
thanks for your reply. I read this guidance already but they only disregard 10 days.

[cs95tdg]

Immigration rules for long residence: http://www.ukba.homeoffice.gov.uk/polic ... les/part7/

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

[UKBA HUNTER]

I am agree to this point but according to this criteria and based on the situation its only 5 days out of 28 days being overstayed with 23 days remaining because on the 5th day of refusal decision they get new application that approved later. isn't it.

[Graceofgod]

Immigration rules for long residence: http://www.ukba.homeoffice.gov.uk/polic ... les/part7/

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(v)

the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

In my opinion & understanding , 28 days overstay provision can not be entertained by applicant on long residence basis as this constitute the break in lawful residence, this is for Limited leave to remain applicant only.There is a mandatory refusal if someone applies for further leave to remain more than 28 days out of time .
I would advise OP to write to Settlement policy as regards to application of
3c in this specific instance.

[cs95tdg]

Immigration rules for long residence: http://www.ukba.homeoffice.gov.uk/polic ... les/part7/

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

In my opinion & understanding , 28 days overstay provision can not be entertained by applicant on long residence basis as this constitute the break in lawful residence, this is for Limited leave to remain applicant only.There is a mandatory refusal if someone applies for further leave to remain more than 28 days out of time.

Agree that it would be wise for the OP to get written confirmation from the settlement policy ops team. However, can you clarify what you mean by the orange text above. From what I undertstand the overstay period mentioned by the OP was as a result of a previous LTR application, whereas the question raised now is whether that previous overstay would cause a problem for this present Long Residence settlement application. Immigration rule 276B(v) indicates that this will not as the break in lawful residence during the entire long residence period was less than 28 days, IMO.

Are you perhaps suggesting that the OP was not covered by S3C during the period between the expiry of his previous Tier 4 visa (which happened during the time UKBA were considering his original in-time application) and the subsequent new application approval date, 25 days after? Meaning he had a break in lawful residence of close to 6 months? instead of the 25 days I currently see it as?

[sheraz7]

i believe that op has only 5 days break due to submitting new application on the 5th day that later approved even op got psw visa later for which 20 points normally be awarded for legal study period and op got psw that clearly means he has no problem regarding its lawful residence. Op made its 1st in time application so till decision + 10 days appeal op was 100% covered through section 3c.

NOTE;
As op finally got tier4 visa followed by psw visa by ukba and if he was illegal than why he has been granted. I believe there is no break or 5 days out of time application that can be disregarded.

[UKBA HUNTER]

thanks. any further valuable thought.