ILR application (10 yrs Student Visa)

[apeng]

Good day,

I have reached 10 years staying in the U.K. under student visa.
In 2010, my student application was rejected by Home Office due to a change in immigration rules on or after 22nd Feb 2010. I wasn't aware of this and sent my application just before the rule changed.
I didn't have enough point scored and application was rejected. There's no right to appeal and I am no right to stay in the U.K. and are liable to be removed, I should return back to home country as soon as possible. (no mentioned the last date to leave the U.K. though)
However, there's an option to make new application. It said:

''If you're not entitled to a statutory right of appeal, but wish to to re-consider this decision on the basis of new or additional information not included in the application that is the subject of this decision, you must submit a fresh application and include full supporting evidence (including required evidence supplied to us with any previous application) and the application fee. In all cases an application should be made before your current leave expires.''

The visa expired date on 28th Feb 2010, Home Office refusal letter dated on 05th May 2012. After I made a new application my student visa granted on 01st June 2010.

Subjec to above circumstance, please be so kind to advise if I can apply ILR under 10 years without problem? Thank you in advance for your advise.

[Graceofgod]

Good day,

I have reached 10 years staying in the U.K. under student visa.
In 2010, my student application was rejected by Home Office due to a change in immigration rules on or after 22nd Feb 2010. I wasn't aware of this and sent my application just before the rule changed.
I didn't have enough point scored and application was rejected. There's no right to appeal and I am no right to stay in the U.K. and are liable to be removed, I should return back to home country as soon as possible. (no mentioned the last date to leave the U.K. though)
However, there's an option to make new application. It said:

''If you're not entitled to a statutory right of appeal, but wish to to re-consider this decision on the basis of new or additional information not included in the application that is the subject of this decision, you must submit a fresh application and include full supporting evidence (including required evidence supplied to us with any previous application) and the application fee. In all cases an application should be made before your current leave expires.''

The visa expired date on 28th Feb 2010, Home Office refusal letter dated on 05th May 2012. After I made a new application my student visa granted on 01st June 2010.

Subjec to above circumstance, please be so kind to advise if I can apply ILR under 10 years without problem? Thank you in advance for your advise.

I am sorry to sound negative & harsh but under the current policy guidance it is unlikely that your application on 10 years lawful stay basis will be successful as there has been a gap of lawful stay of more than 10 days. Having said that each application will be assessed on its own merit and some cases even with the long gap on visas and substantial break in continuous residence also have been successful. you may have to present stronger points in your favour so that HO would find it difficult to refuse your application.wish you good luck,

[sheraz7]

if you made 1st application before visa end then till refusal decision + 10 days you were protected under section 3c means legal residence and if you made 2nd application within 10 days of refusal decision then its not gap as 10 days can be exempted.If critics still say its a gap then they need to understand that if its a gap then why ukba given the visa to illegal applicant. It should not be a gap.

[cs95tdg]

The visa expired date on 28th Feb 2010, Home Office refusal letter dated on 05th May 2012. After I made a new application my student visa granted on 01st June 2010.

Are you sure about the date in blue? Or did you mean to say 2010 instead?

[cs95tdg]

if you made 1st application before visa end then till refusal decision + 10 days you were protected under section 3c means legal residence and if you made 2nd application within 10 days of refusal decision then its not gap as 10 days can be exempted.If critics still say its a gap then they need to understand that if its a gap then why ukba given the visa to illegal applicant. It should not be a gap.

I know that what you say is true if the applicant appeals a refusal decision (which in this case wasn't possible, as no right of appeal was given).
See Page 49-50: http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Note that there are immigration categories under which out-of-time applications are allowed (I.e. up to 28 days from the current LTR expiry date), so that argument you make would not hold true in all circumstances.

It would help if you could provide a UKBA reference to what you say for information purposes. I.e. that an applicant would be covered by S3C if they make a new application with 10 days of the original rejection decision.

[sheraz7]

@cs95tg
every in time application get section 3c protection till the date of decision even till appeal result. And 10 days are the days for which caseworker use discretion under 10 years for 1 time. During 2009-2010 many tier4 people refused but get same standard letter either to appeal or fresh application or leave country. And if they make fresh application and got visa then its not their fault rather complying with the letter they got.
Still i would like to say that if period of stay is not legal then ukba never grant visa to illegal person.

[UKBA HUNTER]

i agree with sheraz7 because i am in same position. my 1st application refused after 5 months processing then i sent fresh application on the 5th day of notice and it approved. Later i got psw visa and i was awarded all points even 20 points for the legal study time period for psw visa. it should not be break.

[cs95tdg]

@cs95tg
every in time application get section 3c protection till the date of decision even till appeal result. And 10 days are the days for which caseworker use discretion under 10 years for 1 time. During 2009-2010 many tier4 people refused but get same standard letter either to appeal or fresh application or leave country. And if they make fresh application and got visa then its not their fault rather complying with the letter they got.
Still i would like to say that if period of stay is not legal then ukba never grant visa to illegal person.

Like I said before I agree that you are covered by S3C/D while an appeal is pending. And am not disputing or agreeing with what you are saying here when it comes to instances where a new application is submitted after initial refusal (It may very well be that the way S3C works is that it does not make a distinction between an appeal or a new application - but I do not know). What I requested in my previous response was a UKBA reference to the rules/legislation/law which I can refer to myself, if you are aware of where this is mentioned and can share a reference.

I do appreciate that there may be cases in the past such as you refer to here, where leave was granted after initial refusal & a new application, again I am not disputing what is being said, but rather asking for a reference which I can read/refer to. I have seen the rules which explain how S3C/D apply in cases of appeals, but not been able to locate the corresponding rules in cases where a new application is made subsequent to a refusal - so hence the reason for raising the question.

It would help if you could provide a UKBA reference to what you say for information purposes. I.e. that an applicant would be covered by S3C if they make a new application with 10 days of the original rejection decision.

[sheraz7]

Many thanks for your input. Your answer regarding asking some reference is already answered if you read again the op 1st post in which he mentioned the ukba words in his refusal letter along with the options he were given.

[cs95tdg]

Many thanks for your input. Your answer regarding asking some reference is already answered if you read again the op 1st post in which he mentioned the ukba words in his refusal letter along with the options he were given.

That letter does not confirm what I would like to know, it just states that the OP may lodge a new application, if they have not been given the right of appeal, which is not the same thing.

What I am after are the rules that would be published for anyone to read, rather than a refusal letter addressed to an individual. However thanks for trying, I will do a further search online myself to see whether I can find the information I'm after; if not someone else who is aware of this may respond to this post.

[quantum1]

@cs95tg
every in time application get section 3c protection till the date of decision even till appeal result. And 10 days are the days for which caseworker use discretion under 10 years for 1 time. During 2009-2010 many tier4 people refused but get same standard letter either to appeal or fresh application or leave country. And if they make fresh application and got visa then its not their fault rather complying with the letter they got.
Still i would like to say that if period of stay is not legal then ukba never grant visa to illegal person.

Op, did you make your first application before your visa expired? If so why were you refused right of appeal? When did you make your second application? It appears your application was rejected not refused, is that correct? If It was invalid then you are not covered by section 3c. Different rules will appl.y in your case then.

Section 3c extends leave while an intime application is being processed, an appeal can be brought and an appeal is pending. Where an application has been refused and an appeal can be brought, in those 10 days allowed section 3c applies. However if no appeal is brought within the allowed time the section 3c leave lapses.

What does this mean? Does it mean that if you do not subsequently appeal, section 3c leave ceases on the day the refusal was notified? Or does it mean that if no appeal is made, leave ceases 10 days after you receive notification of refusal.

I think both interpretation have merits, although I favour the first interpretation. This is because of the meaning of the word lapse. It means " become invalid by virtue of not being used". But that is not its only meaning.

Case law could shed light on this. A qualified professional consultation would be appropriate for you in this case. It is not straightforward!

[sheraz7]

I believe the query has already been best answered and I cannot see that only for that reason 1 time in 10 years caseworker will refused ILR as because during 2009-2010 when PBS launched then many applicants cannot understand it and most of them got same refusal notice with same words despite its look a standard letter but it grant the opportunity to make fresh application.
Remember many things in law is hugely unclear for example if on one hand manual say that applicant cannot make fresh application during section 3c then same manual also say that you can vary the grounds if your circumstances changing which is equivalent to making a fresh application too.

[apeng]

Thank you all for the advices, much appreciated for sharing.
What do you think of deemed leave?

[apeng]

Dear all,

I would like explain further my case...

Visa expired on 28th Feb 2010.
I posted my application on 17th Feb 2010, received safe of receipt letter from Home Office on 19th Feb 2010.
On 23rd Mar 2010, I received Home Office letter my application was rejected due to invalid because of my photograph, asking me re-submit a new application and provide necessary documents current to new application date.
It was my mistake I thought I just need to re-submit the application form again with same document the date based on the previous one made in Feb and attached proper photograph as per requirement.
Then, on 05 May 2010 I received the home office letter that my application was refused due to the new rule started 22nd Feb 2010, didn't score enough points, as per first message I posted, the details kindly refer to first message of this discussion subject. I made again new application and ensure attached new date of bank statement etc and granted my renewed student visa on 01st June 2010.

Pleased to hear your advice.

[cs95tdg]

On 23rd Mar 2010, I received Home Office letter my application was rejected due to invalid because of my photograph, asking me re-submit a new application and provide necessary documents current to new application date.
It was my mistake I thought I just need to re-submit the application form again with same document the date based on the previous one made in Feb and attached proper photograph as per requirement.

When did you re-submit the new application with valid photographs? Did the letter you received stipulate a time period?

It would help if you list the sequence of events with dates from beginning to end, in a concise manner, without having to read through & interpret the information in a piecemeal fashion.

[apeng]

Visa Expired: 28th Feb 2010

First application made: 17th Feb 2010
Rejected letter from Home Office dated 23rd Mar 2010

Second application made: 26th Mar 2010
Refused letter from Home Office dated 03rd May 2010

Third application made: 17th May 2010
Visa granted dated 01 June 2010

Hope you kind advise.

[cs95tdg]

Visa Expired: 28th Feb 2010

First application made: 17th Feb 2010
Rejected letter from Home Office dated 23rd Mar 2010

Did this refusal letter state a time period by which to appeal or re-apply?
You also mentioned that you were not given the right of appeal, can you clarify? As quantum1 has pointed out, as your initial application was made in-time & the UKBA decision was given after your LTR had expired, you should have been given the right of appeal at the time of this decision.

Second application made: 26th Mar 2010
Refused letter from Home Office dated 03rd May 2010

Did this refusal letter state a time period by which to re-apply?

Third application made: 17th May 2010
Visa granted dated 01 June 2010

[apeng]

Visa Expired: 28th Feb 2010

First application made: 17th Feb 2010
Rejected letter from Home Office dated 23rd Mar 2010

cs95tdg wrote:
Did this refusal letter state a time period by which to appeal or re-apply?
You also mentioned that you were not given the right of appeal, can you clarify? As quantum1 has pointed out, as your initial application was made in-time & the UKBA decision was given after your LTR had expired, you should have been given the right of appeal at the time of this decision.

->> Dear cs95tdg,
The refusal letter requested me to send new application because my photograph was invalid. It didn't mention the deadline to send the application. I mentioned earlier I wasn't given the right of appeal, it's related to the refusal of my second application howeve it did give me an option to make new application. That's why I made the 3rd application after refused on my second application in May 2010.

++
Second application made: 26th Mar 2010
Refused letter from Home Office dated 03rd May 2010
cs95tdg wrote:
Did this refusal letter state a time period by which to re-apply?

->> Dear cs95tdg,
The refusal letter didn't state a time period by which to re-apply.
It asked me to return my home country asap that's no right to appeal however it gave me also the option to make new application and thus I made the 3rd application which was succeed.

Thank you for advise.

[cs95tdg]

I’ll have to start by saying, your case isn’t straight-forward, I’d personally categorise it as complex due to the two refusal decisions in 2010. Based on my understanding now, you would have been classified as an overstayer (i.e. broken lawful residence) during the period between 28th Feb 2010 and 01 June 2010.

My reasons for this conclusion are as follows:
You would not have been covered under Section 3C after your visa expired on 28th Feb 2010 as your first application was REJECTED as invalid and not REFUSED. The subsequent application was made out-of-time, so you wouldn’t have been covered by S3C then, IMO. This application then resulted in a REFUSAL. The reason you weren’t given a right of appeal would have been because that application was made out-of-time on 26th Mar 2010. The final approval you received was on 01 June 2010, so that was when your lawful residence began again.

As I’m in no way an expert on immigration matters, I would personally suggest that you seek legal advice to understand what your next steps should be. Alternatively there may be others on this forum, who can comment further.

NOTE: I have made a few edits to my original post above.

[UKBA HUNTER]

Even though I faced same situation but I only get refused 1 time and they clearly given me 10 days to lodge appeal or make fresh application. And I selected fresh application option on 5th day of refusal decision that very promptly succeed without any problem. Later I got psw and awarded 20 points for that legal study period too. MOREOVER IN MY SAR REPORT THERE IS ALSO COMMENT ABOUT PSW THAT CASEWORKER CONSULTED WITH HIS SENIOR CEO REGARDING THAT REFUSAL WHILE GRANTING PSW AND WHOSE ANSWER WAS (OK ALLOWED).

[apeng]

Thank you for the kind advise.

I may not get the PR...

[sheraz7]

you can request your SAR file that contains the information regarding your past applications.

[cs95tdg]

Thank you for the kind advise.

I may not get the PR...

Before you make any decisions I would urge you to seek legal advice to understand what your options are. Additionally as has been suggested, it would be a good idea to make a SAR. See... http://www.ukba.homeoffice.gov.uk/navig ... onal-data/

[vinny]

See also here and some judgments.