Is my continuous residence broken (10 years)

[eastwood]

Hello All,

I could really use some help to clarify some of my confusion please. Thank you in advance.

Timeline:
Entered the UK Sep/2008 under T4 student. Visa was granted from July/2008 to January/2013.
Made in time T4 application in January/2013, visa was granted to 21/January/2014.

Here is the tricky part.
I made an in time application few days before visa expired in Jan/2014, under T4, and the visa was refused because it exceeds 5 years cap.

The refusal letter came with right to appeal within 10 working days as I was not detained. It also said I could make a fresh application either on the same or in another capacity but should be made before my current leave expires (which is not possible).

Confusion point 1, the date on the refusal letter is 27/01. However, I only have received the letter on 18/02 (Proof of delivery). And I have proof that HO has replied to my email saying that the case was still under consideration on 12/02. So which date should I start counting my overstaying please?

Confusion point 2, in the refusal letter, it says 'A decision has also been made to remove you from the UK by the way of directions under s47 of the Immigration Asylum and Nationality Act 2006'. Is this normal?

After I received the refusal letter, I initially prepared to appeal, but an offer of PhD was sent to me from another University so I made a fresh application based on the new CAS from the new University (basically a totally new application which had nothing to do with the one being refused) on 28/02/2014 in the UK, and have my visa granted on 19/03/2014.

As I am getting a little closer to the end of 10 years for Long Residence, could anyone help me on exactly how long I have overstayed please?

Also if I have not overstayed for more than 28 days, is the earliest day I could apply for ILR 28 days before the first visa granted (July/2008) or 28 days before I have entered the UK (Sep/2008) please?
Thank you very much.

[vinny]

Long residence qualifying period starts from the date of initial entry.

As you had a right of appeal, Section 3C was probably engaged to give you time to appeal. So, you couldn't have overstayed long. Since you made a subsequent successful application after Section 3C has lapsed, you must have overstayed less than 28 days before making the application. Else, they would have refused it. So, you are probably okay.

Apply for SAR to confirm.

[eastwood]

Long residence qualifying period starts from the date of initial entry.

As you had a right of appeal, Section 3C was probably engaged to give you time to appeal. So, you couldn't have overstayed long. Since you made a subsequent successful application after Section 3C has lapsed, you must have overstayed less than 28 days before making the application. Else, they would have refused it. So, you are probably okay.

Apply for SAR to confirm.

Hi vinny,

Thank you very much for your reply.

What has concerned me is that although my visa was granted on 19/03/14. I made the application on 28/02/2014 assuming after 3c has expired. Does the time between I made the application on 28/02/14 to my visa grant date 19/03/14 counts as overstay please? Thank you.

[eastwood]

Long residence qualifying period starts from the date of initial entry.

As you had a right of appeal, Section 3C was probably engaged to give you time to appeal. So, you couldn't have overstayed long. Since you made a subsequent successful application after Section 3C has lapsed, you must have overstayed less than 28 days before making the application. Else, they would have refused it. So, you are probably okay.

Apply for SAR to confirm.

Also may I ask does overstay(or 3c for appeal) starts on the date of the letter or on the date of me receiving the letter please? As there was more than 3 weeks difference (in my point 1). Thank you.

[vinny]

I think that Section 3C started from when your visa expired until your right of appeal lapses (because you didn't appeal). I think your right of appeal lapses about 10 days after your receive the refusal notice. From that point onwards you become an overstayer. An overstay of less than 28 days was disregarded for the purposes of making a new application at that time. As the application was successful, this also satisfies requirements under Long residence (276B(v)(a)).

[eastwood]

I think that Section 3C started from when your visa expired until your right of appeal lapses (because you didn't appeal). I think your right of appeal lapses about 10 days after your receive the refusal notice. From that point onwards you become an overstayer. An overstay of less than 28 days was disregarded for the purposes of making a new application at that time. As the application was successful, this also satisfies requirements under Long residence (276B(v)(a)).

Thank you again for your reply vinny. So because my application made on 28/02/2014 was successful, the time between 28/02 to 19/03 was not counted as overstaying? Thank you.

[vinny]

It's the time between when your right of appeal lapses and when you make a new application that's important for 276B(v)(a).

As you made a successful application at that time, then this period should not affect a subsequent Long residence application. The same requirements are used.

[eastwood]

It's the time between when your right of appeal lapses and when you make a new application that's important for 276B(v)(a).

As you made a successful application at that time, then this period should not affect a subsequent Long residence application. The same requirements are used.

Thank you very very much vinny. That really helped. I will be applying for a SAR later to double check. Thanks again and have a nice day.