urgent guidance on ILR

[ankkss]

i came in uk october 2007 on student visa
09 nov 2009 submitted tier 4 application granted until 19 december 2011
01 july 2011 submitted tier 4 applicatiom granted until 23 august 2015

21 august submited tier 2 application which was refused as cos was fake and got deception.
after admin review refusal i have submitted JR on february 2016
by consent from me and home office. home office granted me 28 days .
Home office said
1) WE SENT YOU A LETTER WHICH WITHDREW THE FINDING OF DECEPTION WHICH WAS CONTAINED IN ORIGINAL DECISION.
2)THIS IS A SUPPLEMENTAL LETTER AND READ ALONGSIDE THE ORIGINAL DECISION OF 12 OCTOBER 2015.

3) IN VIEW OF THE CIRCUMSTANCES OF YOUR CLIENTS CASE, ANY APPLICATION FOR LEAVE TO REMAIN THAT THEY MAKE IN UK WITHIN 28 DAYS OF THE DATE YOU RECIEVE THIS LETTER WILL BE TREATED AS IF IT HAD BEEN MADE WITHIN 28 DAYS IF THE EXPIRY OF THE LAST GRANT LEAVE AND WILL NOT BE REFUSED ON THE BASIS THAT HE IS AN OVERSTAYER.

so after that i applied FLR O on 17 november 2016 based on witness in the hearing and police ongoing
case.

i recieved my refusal on 07-07-2017 and no right of appeal. they said if you have something else to rasie do it within 14 days of reciepe of this letter.

my 10 years finishing in 2 months (september 2017)
what are my chances

pls help me guys

[Ijazji]

May b you can apply for directly 10 year rout but get some
Legal advice on it.

[Obie]

A new application will need to be made and ILR made after that.

[ankkss]

means that wont effect my ilr ?

[ankkss]

because tecnically that 28 days were valid out of time application but not considering me as overstayer which i applied flr o and got refusal.
i was so unfortunate that the day i varied my application next day i got refusal.
varied on 5/07/17 home office recieved on 07/07/17 in morning and date of refusal letter stated 04/07/17 but recievred on 07/07/17

[Obie]

I do not support their contention. You had section 3C rights, as they had withdrawn the impugned decision. Therefore the new application you made was a variation of the last application, and therefore your section 3C only elapses now that you received this decision.

That is my position. It they withdraw part or a whole of a decision, it indicates the decision remain extant, awaiting a lawful decision.

[ankkss]

honestly i dont know how 3c works. but when home office solicitor did the consent order in there he mentioned valid out of time application chance.
n my solicitor said ur 3c is broken after current refusal but u can still get ilr if u apply within 14 days.

[ankkss]

any one ?

[ankkss]

Moderators ?

[Casa]

I do not support their contention. You had section 3C rights, as they had withdrawn the impugned decision. Therefore the new application you made was a variation of the last application, and therefore your section 3C only elapses now that you received this decision.

That is my position. It they withdraw part or a whole of a decision, it indicates the decision remain extant, awaiting a lawful decision.

Obie is a Moderator

[marcnath]

honestly i dont know how 3c works. but when home office solicitor did the consent order in there he mentioned valid out of time application chance.
n my solicitor said ur 3c is broken after current refusal but u can still get ilr if u apply within 14 days.

Your solicitor is right. Your 3C is broken now after you got the refusal and you are an overstayer.
If you apply for another visa within 14 days and that application is successful, then you can get your ILR.
Did the letter say you had right to Administrative Review ?

[ankkss]

No admin or no appeal right
But if u have any reason to stay tell us in 14 days

[ankkss]

I do not support their contention. You had section 3C rights, as they had withdrawn the impugned decision. Therefore the new application you made was a variation of the last application, and therefore your section 3C only elapses now that you received this decision.

That is my position. It they withdraw part or a whole of a decision, it indicates the decision remain extant, awaiting a lawful decision.

Obie is a Moderator

Ok

[ankkss]

i spoke to an agent about my case... and it didnt made sense to me
he said
You will be regarded as breaking your residence
As the last application was made out of time but within 28 days which has been refused, so continuous residence will be broken
The 28 days still means you were an overstayer just that it wouldn't be refused because of a 28 day grace period

But when you make an application within 28 days of your leave expiring you are still regarded as being an overstayer unless the application is successful
Which it wasn't
Because the out of time application failed it has broken the chain
u never had 3c

[ankkss]

casa ?
obie ?
any one
sorry m facing lots of stress

[marcnath]

i spoke to an agent about my case... and it didnt made sense to me
he said
You will be regarded as breaking your residence
As the last application was made out of time but within 28 days which has been refused, so continuous residence will be broken
The 28 days still means you were an overstayer just that it wouldn't be refused because of a 28 day grace period

But when you make an application within 28 days of your leave expiring you are still regarded as being an overstayer unless the application is successful
Which it wasn't
Because the out of time application failed it has broken the chain
u never had 3c

Sorry, appreciate you are facing stress and unfortunately there is no good news.
But the agent is right.
Your 3C was broken at the end of the 1st rejection somewhere in October 2015. While you were allowed a fresh application, since that was not successful, you remain an overstayer since 2015. Any new application will be subject to automatic refusal.

[ankkss]

Marcnath... pls read my main post...

[CR001]

ankkss, I would suggest you re-read Obie's advice again. You will need to make another application and then vary to ILR within 14 days of your refusal.

I do not support their contention. You had section 3C rights, as they had withdrawn the impugned decision. Therefore the new application you made was a variation of the last application, and therefore your section 3C only elapses now that you received this decision.

That is my position. It they withdraw part or a whole of a decision, it indicates the decision remain extant, awaiting a lawful decision.

[marcnath]

Marcnath... pls read my main post...

Yes, I did read your main post. There were a few critical dates missing in that though.
Your application on 21 august (2015, I assume) was rejected. You don't have the dates for the rejection and the AR in the main post.
But, based on your HO letter which I assume was somewhere in October/November 2016 (again, you have not stated the date for that), it appears the original rejection was on 12 October 2015.
All that letter stated was that HO would not refuse your application made within 28 days of that letter. It was clear there that the application would be as an overstayer, so you did not have Section 3C protection.

My interpretation differs from @obie. To me, it appears that HO only withdrew the finding of deception but not the refusal decision, which still stood. There were two reasons for refusal and the bad CoS appears to have still remained.

Again, it is not totally clear from your original post, but it looked like you did not proceed with the JR, but instead had a mutual agreement with HO to remove the deception finding and reapply.

[ankkss]

I was surprised which I didn't mention here but obie said.
On my refusal letter its REFUSAL TO VARY LEAVE. Which oboe mentioned in post.

Apart from agent, all solicitor said the same what obie said.

As I have already applied long residence application.

It just that I am very confused because what kind of 28 days home office gave, they I am not overstayer but at same time in consent they mentioning valid out of time application..

[ankkss]

Marcnath... pls read my main post...

Yes, I did read your main post. There were a few critical dates missing in that though.
Your application on 21 august (2015, I assume) was rejected. You don't have the dates for the rejection and the AR in the main post.
But, based on your HO letter which I assume was somewhere in October/November 2016 (again, you have not stated the date for that), it appears the original rejection was on 12 October 2015.
All that letter stated was that HO would not refuse your application made within 28 days of that letter. It was clear there that the application would be as an overstayer, so you did not have Section 3C protection.

My interpretation differs from @obie. To me, it appears that HO only withdrew the finding of deception but not the refusal decision, which still stood.

Again, it is not totally clear from your original post, but it looked like you did not proceed with the JR, but instead had a mutual agreement with HO to remove the deception finding and reapply.

Macrnath.. since October 2015 I applied Ar (which was refused)
Then I applied jr, I got hearing date as well but home office gave me offer to withdraw and gave 28 days.

[ankkss]

Home office removed para 320(7b) and deception but the reason they can't remove 322(1a) was because cos was actually false but given the evidence provided to police, home office n oisc.

[marcnath]

Home office removed para 320(7b) and deception but the reason they can't remove 322(1a) was because cos was actually false but given the evidence provided to police, home office n oisc.

I edited my earlier response after you submitted these new posts. But your replies reinforces my interpretation.
You withdrew the JR, so there was no decision made there.
@obie's position was " It they withdraw part or a whole of a decision, it indicates the decision remain extant"
Whether withdrawing one of the reasons satisfies that condition is something I am not clear about. I personally think not, because any one of those is sufficient to make the decision. But @obie is more experienced, so I could be wrong.
Either way, when you have conflicting opinions, your only option is to apply and see what HO will come back with.

[ankkss]

Home office removed para 320(7b) and deception but the reason they can't remove 322(1a) was because cos was actually false but given the evidence provided to police, home office n oisc.

I edited my earlier response after you submitted these new posts. But your replies reinforces my interpretation.
You withdrew the JR, so there was no decision made there.
@obie's position was " It they withdraw part or a whole of a decision, it indicates the decision remain extant"
Whether withdrawing one of the reasons satisfies that condition is something I am not clear about. I personally think not, because any one of those is sufficient to make the decision. But @obie is more experienced, so I could be wrong.
Either way, when you have conflicting opinions, your only option is to apply and see what HO will come back with.

Macbeth
I was victim of huge fraud in tier 2, was in news aswell.
Home office never remove deception or 320, it just that we proved them by media,oisc n police still investigating the case.
We even won in tribunal hearing where we there as witness.
It took year to fight with home office. Home office point was they did wat they can, can't remove 322(1a) cos was fake, Cz I was victim n they considered that.
That's the reason why home office gave us valid out of time application chance but unfortunately it refused and home office says in refusal letter they not counting police investigation and also tribunal said fraudster has to pay us the money which home office say u can take it when go back to ur country.

[ankkss]

I can't explain how I gone through in this period. It was like hell.