ILR (Set LR) premium service refused after 5 months whilst appeal pending

[jwboy]

My immigration history as follows
Came to uk in feb 2007 on student visa then got psw in 2008 , tier 1 General in 2010 extended Tier 1 General in 2012.
stoped by immigration on feb 2014 on Heathrow when coming back from home and cancel my visa due to income issue in tier 1 (Income didn’t match with HMRC Record because my accounting year was different than the tax year) and given me IS82 C (removal) & later given IS96 next day with appeal right, I appealed straight away. They didn't gave me right to work so my solicitor tried and get me right to work. They have changed IS96 2/3 times , couple of times they ask me to come for interview but they didn't confirm with me because my case was forwarded to another office. And before hearing my solicitor given s120 notice to home office based on my British wife & daughter. Appeal heard on July 2015. Home office said we didn't receive s120. Need time to consider. Judge ruled home office decision is not lawful and they still have to make lawful decision and extend my appeal (limited). We send doc again to HO Then refused again on human rights (private life) in may 2016. Appealed again and completed 10 years. Went for ILR in premium service. Visa held & refused after 5 months. They said my long residency have a break from may 2014 onward. (that was the time when my solicitor tried to get my right to work back etc). I am not sure if i am still under section 3c/3d.
Sorry for long story, Please advise what I should do”

[makky86]

My immigration history as follows
Came to uk in feb 2007 on student visa then got psw in 2008 , tier 1 General in 2010 extended Tier 1 General in 2012.
stoped by immigration on feb 2014 on Heathrow when coming back from home and cancel my visa due to income issue in tier 1 (Income didn’t match with HMRC Record because my accounting year was different than the tax year) and given me IS82 C (removal) & later given IS96 next day with appeal right, I appealed straight away. They didn't gave me right to work so my solicitor tried and get me right to work. They have changed IS96 2/3 times , couple of times they ask me to come for interview but they didn't confirm with me because my case was forwarded to another office. And before hearing my solicitor given s120 notice to home office based on my British wife & daughter. Appeal heard on July 2015. Home office said we didn't receive s120. Need time to consider. Judge ruled home office decision is not lawful and they still have to make lawful decision and extend my appeal (limited). We send doc again to HO Then refused again on human rights (private life) in may 2016. Appealed again and completed 10 years. Went for ILR in premium service. Visa held & refused after 5 months. They said my long residency have a break from may 2014 onward. (that was the time when my solicitor tried to get my right to work back etc). I am not sure if i am still under section 3c/3d.
Sorry for long story, Please advise what I should do”

While your appeal is pending you are still covered by section 3C but if the appeal is refused then all the stay within that period is not covered by Section 3C and cannot be used as continous residency.

You appealed in 2014 and it was refused 2016 so that time cannot be taken for 10 years long residency.

Since you have british wife and daughter you can apply for FLR

All details are here
https://www.gov.uk/government/publicati ... -form-flrm

But this means you'll have to complete another 5 years to be eligible for ILR.

This is all per my understnading but wait for experts opinion as well.

[jwboy]

Thank you for reply
HO refused human rights which was submitted as an additional grounds,( my original
appeal was tier 1 G) and appeal is still pending , court never decided on appeal yet and last time we appear in court was last month where my solicitor asked judge to consider ILR application, HO asked for more time, now I received refusal letter few days back and case worker mentioned on it that appeal was due to be heard but I withdrew it but we have attended appeal hearing, So I think premium service case manager might not be aware of appeal pending, case worker on the day also told me that my appeal will be cancelled by making ILR application,
My question is if court has never decided on my case yet (it was refused by HO on additional grounds submitted), will my lawful residence will still be counted whilst on 3c , (work was allowed during that time) because this was the main refusal reason and will we have strong appeal on this grounds ?
My solicitor is going to launch appeal soon and he said both appeals will be merged as judge said previously he is happy to hear it on ILR basis
Looking forward to hear from seniors .....

[zimba]

So the case worker noted you had no section 3C since May 2014, that does not add up with your story of having an appeal. Any pending appeal extends your section 3C which counts towards the long residence.
You cannot apply for a new application UNLESS you withdraw any pending appeal.
If you made a SET(LR), this means any pending appeal had to be withdrawn or you had no appeal to begin with.
You really figure out when and how your appeal was withdrawn

[jwboy]

So the case worker noted you had no section 3C since May 2014, that does not add up with your story of having an appeal. Any pending appeal extends your section 3C which counts towards the long residence.
You cannot apply for a new application UNLESS you withdraw any pending appeal.
If you made a SET(LR), this means any pending appeal had to be withdrawn or you had no appeal to begin with.
You really figure out when and how your appeal was withdrawn

My solicitor advised me to apply as apparently I met 10 years LR requirement, I asked many solicitors if I can make SET LR application without withdrawing appeal and got mixed replies, but anyways I m lodging new appeal now on ILR refusal, and already have a date of existing appeal hearing in April 2018,

[zimba]

You seem to be ignorant of the rules. You cannot apply for a new application with a pending appeal so it seems your solicitor withdrew your appeal in order to apply for SET(LR). Your hearing could be canceled as tribunal finds out about this. You cannot apply for a new appeal on your SET(LR) unless explicitly given appeal rights. HO thinks your 3c has ended in May 2014, the question is why HO thinks that is the case!

[jwboy]

You seem to be ignorant of the rules. You cannot apply for a new application with a pending appeal so it seems your solicitor withdrew your appeal in order to apply for SET(LR). Your hearing could be canceled as tribunal finds out about this. You cannot apply for a new appeal on your SET(LR) unless explicitly given appeal rights. HO thinks your 3c has ended in May 2014, the question is why HO thinks that is the case!

Case worker accepted the application (he could have not accepted application until appeal withdrawn) and he said to me appeal will be cancelled itself, but we never withdrew appeal and tribunal in October 2017 hearing was well aware of my ILR application (July 2017) and judge asked HO to decide on ILR application and adjourned hearing, so I already had a hearing of pending appeal
Next hearing in April 2018, and I also have appeal right for ILR refusal
HO may be not considering 3c as a lawful residence because they rejected additional grounds ?? I never had a decision from court yet so technically my 3C should continue until decided by court ? Plz Correct me if I’m wrong

[zimba]

As far as I see your appeal was withdrawn and cannot be pursued as you applied for a new application.
If you had section 3C during your appeal, it ended when you put in a new ILR application.

[jwboy]

As far as I see your appeal was withdrawn and cannot be pursued as you applied for a new application.
If you had section 3C during your appeal, it ended when you put in a new ILR application.

Thank you for reply
As far as my understanding case worker shouldn’t have accepted the application without confirmation of appeal being withdrawn in a first place, but appeal was not withdrawn and Tribunal heard the existing appeal three months after the ILR application and directed HO representative to decide on ILR application and adjourned till April 2018, also HO representative mentioned to my barrister in an informal conversation that my ILR case will be successful,
The point is if my 3c was valid until ILR Application then why case worker refused ILR on the basis that my leave during 3c can’t be counted as continuous residence because my additional grounds were not accepted by HO in 2016,