10 year Long Residence - overstay more than 28 days?

[bella2016]

Hi all,
I have lived in UK for 10 years and would like to apply for settlement based on Long Residence. However, I had a visa rejection history. I have summarised the situation below, hopefully you could give some advise:

I entered UK in September 2006 and holding a student visa until 31 Jan 2008.
I submitted visa extension application on 30 Jan 2008, case raised date was 31 Jan 2008,. It was confirmed by Home Office as in time application.
The outcome of this submission was made on 21 Feb as REJECT, below is the caseworker's comments:
Application was in time and on a FLR(s) form. Applicant has provided no evidence of sponsorship & funds or progress therefore this case falls for rejection under invalidation procedure.

I re-submitted application on 17 Mar 2008, new case raised on 19 Mar 2008 and decision was made on 31 Mar as approval.

My understanding is that my first application submitted on 31 Jan was invalid.

My question is:
Did I have 46 days overstayed (from 31 Jan – when my student visa expired to 17 Mar – application resubmitted after rejection) or 27 days overstayed (from 21 Feb when my first application was rejected until 17 Mar when application was resubmitted)?

Thanks

[secret.simon]

An invalid application is treated as if it has never been made/does not exist. It certainly does not extend Section 3C leave.

For the purpose of clarity, Section 3C leave extends existing leave, but does not create any new leave if the previous leave had expired. Your leave expired on 31st January 2008. The 28 days of overstay expired on 28th Feb 2008. Your subsequent application was submitted out of time on 17th March. As you had no existing leave, the period that it was being decided does not count towards Section 3C leave either.

So, your period of overstay was from 31st Jan 2008 till 31st March 2008, when your second application was approved.

You should be eligible for ILR(LR) after 31st March 2018.

[Obie]

Your application became invalid upon receipt of the invalidity notice on the 21 February.

You had section 3C until you were notified of the invalidity.

Therefore overstay was from 21 February to 17 March.

[vinny]

Your application became invalid upon receipt of the invalidity notice on the 21 February.

You had section 3C until you were notified of the invalidity.

Therefore overstay was from 21 February to 17 March.

That used to be a concession, until the Court of Appeal rejected it.

[secret.simon]

Has Iqbal & Others [2015] EWCA Civ 838 been overruled?

30. ..It has always been assumed that an application must be one which is validly made in accordance with the rules and the point has not, so far as I am aware, ever been in issue. In my view the assumption is correct.
...it is a cogent reading of the section to construe the reference to an application as one which is a proper application as defined by rules which Parliament has permitted the Secretary of State to formulate.
...
32. In my judgment, if a decision on the application for leave was intended to include a decision that there is no valid application, Parliament would have had to say so in terms. In my view this is not even a possible reading of the section as it stands.

EDIT: Apologies, vinny. I did not see your intervention.

[yhm75]

in my understanding section 3c valid till first refusal appeal end date

after appeal end time overstay period start from refusal date till 17 march which with in 28 days
and for ilr lr application 28 days and waiting for decision time will be disregarded according to 276b rule v

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

[Obie]

Your application became invalid upon receipt of the invalidity notice on the 21 February.

You had section 3C until you were notified of the invalidity.

Therefore overstay was from 21 February to 17 March.

That used to be a concession, until the Court of Appeal rejected it.

Vinny in Iqbal, the issue was fee payment, which does not apply to this case. This OP paid the correct fees, but due to missing documents, he was refused. I am not sure that this can be assimilated to Iqbal.

In any event i am not sure Iqbal will have much effect, as we now have Paragraph 34A and 34B of the immigration rules, which makes clear that Iqbal may no longer be a good law, or has been preceded by statutory changes.

[secret.simon]

That used to be a concession, until the Court of Appeal rejected it.

Further to this point, can the OP plead either estoppel or legitimate expectations, if the concession was in place in 2008?

[Obie]

I am more inclined to believe that this is more like a JH (Zimbwa) case Than an Iqbal case.

I think the both came to different conclusion on different fact. Where as in Iqbal the right fees was not paid, the case of JH involves the right fee but the wrong application, and all the requirements were not met for the application lodged.

The OP's case seems to be close to the facts in JH.

[bella2016]

An invalid application is treated as if it has never been made/does not exist. It certainly does not extend Section 3C leave.

For the purpose of clarity, Section 3C leave extends existing leave, but does not create any new leave if the previous leave had expired. Your leave expired on 31st January 2008. The 28 days of overstay expired on 28th Feb 2008. Your subsequent application was submitted out of time on 17th March. As you had no existing leave, the period that it was being decided does not count towards Section 3C leave either.

So, your period of overstay was from 31st Jan 2008 till 31st March 2008, when your second application was approved.

You should be eligible for ILR(LR) after 31st March 2018.

I think your understanding is correct. I have cancelled my ILR appointment which is supposed to happen next week. However, I am thinking how I could resubmit the application 46 days after my previous visa expired (31 Jan 2008). The application was handled by a representative so i had no idea about what happened during that time. He didn't tell me about the rejection, I only found out recently after received fast track record data from home office. If an application was rejected under invalidation procedure, can it be validated again? What's the procedure of doing that?