10 Years ILR Refused With in Country Right of Appeal

[awan123]

Dear Moderators and members, hope you all well.
I need your help on my case. Here is my brief history
Came to UK on student visa-07-09-2006
1st extension on tier-4 Feb 2010
PSW granted until Dec-2013
Applied entrepreneur visa in Dec 2013 which was refused. Lodged appeal against decision but it was dismissed. In august 2015 all my appeals exhausted.
I applied FLR(O) within 28 days and varied to FLR (FP) in Feb 2016 again varied to Set (LR) in May 2016.
On 19th of August i enrolled biometrics and on 30th of August i received refusal decision under paragraph 276D with reference to paragraph 276B (i) (a) of HC395 when only 7 days left to complete my 10 years. I have given in country right of appeal
I have wife and 2 kids uk-born lives with me.
Now my question is how much chances I have to win the appeal. Anyone has gone through same situation? Plz share your experience.

[naviad13]

It's sad to hear that. It looks They refused you after Completing 10 years in uk. What was the reason to refuse ur application

[vinny]

Now my question is how much chances I have to win the appeal.

If you don't appeal, then your chances of winning the appeal are obviously nil.

[awan123]

Now my question is how much chances I have to win the appeal.

If you don't appeal, then your chances of winning the appeal are obviously nil.

Thanks Vinny for reply, yes definitely i will go for appeal as i have no other choice

[awan123]

It's sad to hear that. It looks They refused you after Completing 10 years in uk. What was the reason to refuse ur application

HO refused my application 13 days before completing my 10 years

[vinny]

Did they take into consideration that you may apply for ILR up to 28 days prior to the completion of the qualifying period?

[awan123]

Did they take into consideration that you may apply for ILR up to 28 days prior to the completion of the qualifying period?

Hi Vinny
I don't thing they considered 28 days rule in my case because i applied early.
I varried my application from FLR (FP) to SET (LR) on 16 May, 85-28 days before completing the 10 years. I thought by the time when the case worker will decide my application, my 10 years would be completed.But unfortunately they refused my application just before 13 days of the completing of my 10 yrs.

[Obie]

That seem to be an error. If you are refused 13 days before the 1p years. If it was 29, that may have been ok.

[Junaidkts]

Did they take into consideration that you may apply for ILR up to 28 days prior to the completion of the qualifying period?

Hi Vinny
I don't thing they considered 28 days rule in my case because i applied early.
I varried my application from FLR (FP) to SET (LR) on 16 May, 85-28 days before completing the 10 years. I thought by the time when the case worker will decide my application, my 10 years would be completed.But unfortunately they refused my application just before 13 days of the completing of my 10 yrs.

Dear Awan,

I believe section 3C does not extends the existing leave when an applicant applies for further leaves where their existing leave has already been expired. I might be wrong but as you applied for FLR (O) after all appeal rights were exhausted, though it was within 28 days, I believe 3C leave was not applicable since you did not had leave to remain when you had applied. So, it was not the case they refused you because they considered it 13 days early. Please see page 8, 3rd paragraph https://www.gov.uk/government/uploads/s ... ve-6_0.pdf
However, I am not an expert so wait for the moderators to comment on this as I am not 100% sure in interpreting what is said in the above guidence /page number 8. Thanks

[Abc499]

Dear Awan,

I believe section 3C does not extends the existing leave when an applicant applies for further leaves where their existing leave has already been expired. I might be wrong but as you applied for FLR (O) after all appeal rights were exhausted, though it was within 28 days, I believe 3C leave was not applicable since you did not had leave to remain when you had applied. So, it was not the case they refused you because they considered it 13 days early. Please see page 8, 3rd paragraph https://www.gov.uk/government/uploads/s ... ve-6_0.pdf
However, I am not an expert so wait for the moderators to comment on this as I am not 100% sure in interpreting what is said in the above guidence /page number 8. Thanks

my understanding is same too , and may be the decision could be same even if they take the decision after completing 10Y. For out of time application if the application made within 28 days and the subsequent application successful then continuous residency is not broken. So if OP application was for different visa but not long residency then if it successful then ok (even possible to apply long residency later). So seems out of time application date to decision date become valid only once the application successful. But for long residency consideration the base is valid residency, so before make positive decision they need the validity of the residency of 10Y which they will not get in this cases (unless minimum 10Y-28days complete application time).

Hope seniors will be able to clarify this.

[Junaidkts]

my understanding is same too , and may be the decision could be same even if they take the decision after completing 10Y. For out of time application if the application made within 28 days and the subsequent application successful then continuous residency is not broken. So if OP application was for different visa but not long residency then if it successful then ok (even possible to apply long residency later). So seems out of time application date to decision date become valid only once the application successful. But for long residency consideration the base is valid residency, so before make positive decision they need the validity of the residency of 10Y which they will not get in this cases (unless minimum 10Y-28days complete application time).

Hope seniors will be able to clarify this.

Just a small clarification;

Long residence guide (page 24; example 2) states that "if made an out of time application, there will be a gap between the date previous leave is expired (or lets say appeal rights are exhausted whatever applicable) to the date a decision is made and a fresh application is subsequently granted. To my understanding, if an out of time application was made and visa was granted with in 28 days of previous leave expiry date, 10 years contineous residence wont break. In all other cases, even subsequent was granted but after 28 days, it will break contineous lawful residence for the purpose of settlement long residence route.

[awan123]

Dear Awan,

I believe section 3C does not extends the existing leave when an applicant applies for further leaves where their existing leave has already been expired. I might be wrong but as you applied for FLR (O) after all appeal rights were exhausted, though it was within 28 days, I believe 3C leave was not applicable since you did not had leave to remain when you had applied. So, it was not the case they refused you because they considered it 13 days early. Please see page 8, 3rd paragraph https://www.gov.uk/government/uploads/s ... ve-6_0.pdf
However, I am not an expert so wait for the moderators to comment on this as I am not 100% sure in interpreting what is said in the above guidence /page number 8. Thanks

my understanding is same too , and may be the decision could be same even if they take the decision after completing 10Y. For out of time application if the application made within 28 days and the subsequent application successful then continuous residency is not broken. So if OP application was for different visa but not long residency then if it successful then ok (even possible to apply long residency later). So seems out of time application date to decision date become valid only once the application successful. But for long residency consideration the base is valid residency, so before make positive decision they need the validity of the residency of 10Y which they will not get in this cases (unless minimum 10Y-28days complete application time).

Hope seniors will be able to clarify this.

Hi Abc999
Thanks for your input. I do understand what you mentioned. But one of my friends had a similar case like me, even he applied 5 months before for ILR within 28 days after all his appeals exhausted and he got visa.
I think it depends on case worker how he/she decides your application.

[Abc499]

my understanding is same too , and may be the decision could be same even if they take the decision after completing 10Y. For out of time application if the application made within 28 days and the subsequent application successful then continuous residency is not broken. So if OP application was for different visa but not long residency then if it successful then ok (even possible to apply long residency later). So seems out of time application date to decision date become valid only once the application successful. But for long residency consideration the base is valid residency, so before make positive decision they need the validity of the residency of 10Y which they will not get in this cases (unless minimum 10Y-28days complete application time).

Hope seniors will be able to clarify this.

Just a small clarification;

Long residence guide (page 24; example 2) states that "if made an out of time application, there will be a gap between the date previous leave is expired (or lets say appeal rights are exhausted whatever applicable) to the date a decision is made and a fresh application is subsequently granted. To my understanding, if an out of time application was made and visa was granted with in 28 days of previous leave expiry date, 10 years contineous residence wont break. In all other cases, even subsequent was granted but after 28 days, it will break contineous lawful residence for the purpose of settlement long residence route.

I think when the application made within 28 days overstay, con residency will not be broken if the following application successful; not mater when they took decision. When application made with 28+ days overstay then con residency will be broken and valid leave will be only from the successful decision date. ( page 24, exp-2 applicant applied on 45th day. Hence its broken and counted from next visa date and gap).

[Abc499]

Dear Awan,

I believe section 3C does not extends the existing leave when an applicant applies for further leaves where their existing leave has already been expired. I might be wrong but as you applied for FLR (O) after all appeal rights were exhausted, though it was within 28 days, I believe 3C leave was not applicable since you did not had leave to remain when you had applied. So, it was not the case they refused you because they considered it 13 days early. Please see page 8, 3rd paragraph https://www.gov.uk/government/uploads/s ... ve-6_0.pdf
However, I am not an expert so wait for the moderators to comment on this as I am not 100% sure in interpreting what is said in the above guidence /page number 8. Thanks

my understanding is same too , and may be the decision could be same even if they take the decision after completing 10Y. For out of time application if the application made within 28 days and the subsequent application successful then continuous residency is not broken. So if OP application was for different visa but not long residency then if it successful then ok (even possible to apply long residency later). So seems out of time application date to decision date become valid only once the application successful. But for long residency consideration the base is valid residency, so before make positive decision they need the validity of the residency of 10Y which they will not get in this cases (unless minimum 10Y-28days complete application time).

Hope seniors will be able to clarify this.

Hi Abc999
Thanks for your input. I do understand what you mentioned. But one of my friends had a similar case like me, even he applied 5 months before for ILR within 28 days after all his appeals exhausted and he got visa.
I think it depends on case worker how he/she decides your application.

In that case you were not lucky enough like him but could get exit way in appeal. Good Luck

[Obie]

If a person acquired 10 years residence before the application they made within 28 days is decided, they will still be fine, according to my reading and understandin of the law.

This is the case with OP I believe .

[awan123]

In that case you were not lucky enough like him but could get exit way in appeal.Good Luck

Thanks Abc999,

[awan123]

If a person acquired 10 years residence before the application they made within 28 days is decided, they will still be fine, according to my reading and understandin of the law.

This is the case with OP I believe .

Hi Obie I didn't understand, could u plz explain it with an example

[awan123]

Dear members,
I have lodged appeal. Anyone who has gone through similar situation like me and won appeal in FTT? Please share your experience. Thanks

[awan123]

Dear members,
After a long wait I have received hearing date which will be in January. Anyone who has gone through similar situation and got success. Please share you experience. Thanks

[Obie]

You have a reasonable prospect of success, if at the time you were refused, you were 8 days away from ILR.

[awan123]

You have a reasonable prospect of success, if at the time you were refused, you were 8 days away from ILR.

Thanks Obie for your kind reply. Have you read my history? Actually I am worried because this was my 2nd application after all my appeal rights exhausted within 28 days so I don't know what rules say on this application. My solicitor says that I am in a grey area, if barrister fights well then I have a high chance of success.

[acespace]

any news on your appeal held in Jan?