Break in 10 Years?

[shah_143]

Immigration rules part 7, paragraph 276B(v) clearly mentions that paragraph 39E applies for any current period of overstaying when application was made on or after 24 November 2016:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
.
..
....
......
(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.

The date of the ILR application (upon variation of the previous leave) will be assumed to be the same as the date of the previous application. Thus the ILR application was made within the timeframe set under paragraph 39E (within 14 days of section 3C coming to an end) and therefore such current period of overstaying must be disregarded

Hi zimba88,

After you told me about 39E and i did some research and read so many post online and your correct overstaying must be disregarded as all my application was witin 14 days and i have Records of that.

thank you for your input which have given me some hope.

let see.

Thank you.

[Sunny024]

Dear shah,any update on your case please ..?

[shah_143]

Dear shah,any update on your case please ..?

hi Sunny,

not yet. still waiting.

how about yours? Even my Local MP is involved but HO is not getting back to them from last 30 days.

i have tried to upgrade to premium service but they said my application is not eligible.

thank you.

[Sunny024]

Hi,my hearing date is on 1st August .i hope for the best

[shah_143]

Hi,my hearing date is on 1st August .i hope for the best

Yea hope for the best.

[shah_143]

Hi

I got my visa refuse today under section 276B.

I got right to appeal.

I am too confused what to do next.

Please advise.

Thank you.

[Cattak]

Hi,my hearing date is on 1st August .i hope for the best

Hi Sunny024 What happened in the hearing?

I have the same issue.

Arrived UK on 30th Sep 2007 and Subsquently applied and renewed my visas till 01-06-2016.
Applied ILR on 5 YEAR BASIS (Tier 1 General) on 30-06-2016 same day premium service and got refusal on the same day.
Appllied Admin Review on 11-07-2016
But also applied Premature Long Residence application on 27-07-2016 (Within 28 days grace period for overstayers)
Vaired the Premature LR to LR on 21-09-2017 when 10 years completed. HO accepted the vary application as per rule with no problems.
LR application refused in May 2018 with the right to Appeal.
Lodged an Appeal to the First Tier Tribunal with in 14 days.
Hearing Date was on 13th of September.
Decision held on the basis of Long Residence as Judge agreed with the HO that my continous residence clock stopped when i applied for Premature LR on 27-07-2016. But removed the charges of "322 (5) deception" (of which HO alleged me off).



I WILL MUCH APPRECIATE IF YOU LET ME KNOW Of YOURS APPEAL DECISION WHETHER ITS BEING ALLOWED on THE BASIS OF paragraph 39e RULES.

[Cattak]

Hi

I got my visa refuse today under section 276B.

I got right to appeal.

I am too confused what to do next.

Please advise.

Thank you.

Mr Shah!

Have you appealed?
I am in the same situation.


Arrived UK on 30th Sep 2007 and Subsquently applied and renewed my visas till 01-06-2016.
Applied ILR on 5 YEAR BASIS (Tier 1 General) on 30-06-2016 same day premium service and got refusal on the same day.
Appllied Admin Review on 11-07-2016
But also applied Premature Long Residence application on 27-07-2016 (Within 28 days grace period for overstayers)
Vaired the Premature LR to LR on 21-09-2017 when 10 years completed. HO accepted the vary application as per rule with no problems.
LR application refused in May 2018 with the right to Appeal.
Lodged an Appeal to the First Tier Tribunal with in 14 days.
Hearing Date was on 13th of September.
Decision held on the basis of Long Residence as Judge agreed with the HO that my continous residence clock stopped when i applied for Premature LR on 27-07-2016. But removed the charges of "322 (5) deception" (of which HO alleged me off).



I WILL MUCH APPRECIATE IF YOU LET ME KNOW Of YOURS APPEAL DECISION WHETHER ITS BEING ALLOWED on THE BASIS OF paragraph 39e RULES.

[aminkhulna]

Hi
I am new on board. Just wondering if any one in this conversation has any update in regards to 39E's effect on application made with in 14 days of refusal of the first application ?

I can see an appeal was even refused ! If the HO did a mistake then how come the court did not rectify this ? Then what is 39E for if the 14 days period of overstaying is not disregarded to allow ILR .

I have spoken to couple of counsels and they are even confused . I came to know that a case on 39E is on going at Court of appeal , a prominent Barrister is representing the applicant so hopefully an interpretation of this rule will be coming from there.Such interpretation will be binding on HO+lower court/tribunals . I am still trying to get the case detail so I can follow it and attend the hearing in person to find out the outcome .

Please share any update any one might have .

Thank you very much .

[Sunny024]

Hi I'm on the same boat, I used 39e to cover my gap and my ilr decision was made after finishing my 10 years, HO refused it, went to lower tribunal, judge didn't get it and I went to UT, judge agreed there was an error in LT decision but said 39 E only discounts overstay but won't make status legal and he adjourned the case until Jan 25 for resume hearing. I'm not sure how else would 39E works otherwise.

If you have any highcourt /court of appeal pending on the issue please let me know.

[Sunny024]

Hi
I am new on board. Just wondering if any one in this conversation has any update in regards to 39E's effect on application made with in 14 days of refusal of the first application ?

I can see an appeal was even refused ! If the HO did a mistake then how come the court did not rectify this ? Then what is 39E for if the 14 days period of overstaying is not disregarded to allow ILR .

I have spoken to couple of counsels and they are even confused . I came to know that a case on 39E is on going at Court of appeal , a prominent Barrister is representing the applicant so hopefully an interpretation of this rule will be coming from there.Such interpretation will be binding on HO+lower court/tribunals . I am still trying to get the case detail so I can follow it and attend the hearing in person to find out the outcome .

Please share any update any one might have .

Thank you very much .

Dear amin
Please share details of court of appeal matter, I too want to attend the hearing and please give me date and place of hearing.
Please

[aminkhulna]

Hi Sunny,

Sure I will share the detail as soon as I know . All I know counsel xxxxxxx is representing the appellant , he is a prominent one and hopefully there will be a good outcome . As of today the effect of 39E is quite blur and the HO is using it grossly to refuse ILR applications , I know at least 5 applicants whose application have been refused in last 2 months . I would recommend you to take a very good counsel on 25 Jan who can help the Upper tribunal to understand 39E and you win your case . Please keep us posted .All the very best for you .

Thank you .

[Sunny024]

hi amin
If you know the hearing date please post it here, I will join you for sure

Regards

[shah_143]

Hi

I got my visa refuse today under section 276B.

I got right to appeal.

I am too confused what to do next.

Please advise.

Thank you.

Mr Shah!

Have you appealed?
I am in the same situation.


Arrived UK on 30th Sep 2007 and Subsquently applied and renewed my visas till 01-06-2016.
Applied ILR on 5 YEAR BASIS (Tier 1 General) on 30-06-2016 same day premium service and got refusal on the same day.
Appllied Admin Review on 11-07-2016
But also applied Premature Long Residence application on 27-07-2016 (Within 28 days grace period for overstayers)
Vaired the Premature LR to LR on 21-09-2017 when 10 years completed. HO accepted the vary application as per rule with no problems.
LR application refused in May 2018 with the right to Appeal.
Lodged an Appeal to the First Tier Tribunal with in 14 days.
Hearing Date was on 13th of September.
Decision held on the basis of Long Residence as Judge agreed with the HO that my continous residence clock stopped when i applied for Premature LR on 27-07-2016. But removed the charges of "322 (5) deception" (of which HO alleged me off).



I WILL MUCH APPRECIATE IF YOU LET ME KNOW Of YOURS APPEAL DECISION WHETHER ITS BEING ALLOWED on THE BASIS OF paragraph 39e RULES.

hi Cattak

i got am waiting for the hearing now.

i will keep you posted.

i am confused with your situation what do you mean by Premature Long Residence application?

why you applied earlier then 10 years in UK?

thank you

[aminkhulna]

hi amin
If you know the hearing date please post it here, I will join you for sure

Regards

Hi Sunny ,

One of my fiends just got a decision of first tier tribunal yesterday, hearing took place 2 weeks ago. The judge said- ''paragraph 39E of the Immigration rules provides exceptions for overstates and where the application was made following the refusal of a previous application for leave which was made in time and with in fourteen days of the expiry of any leave extended by section 3C of the Immigration Act 1971 or any administrative review or appeal being concluded and withdrawn or abandon or lapsing . The respondent accepts that the application was made within such 14 days of the previous application(and appeal) being concluded.
Thus the applicant meets the requirement of paragraph 276B and his appeal is allowed under section 6 of Human rights act 1998.''

Unless the Home office goes to Upper Tribunal against this decision my friend will get the ILR now .
This has made me so happy that at least 39E is accepted here .

I believe you will take a very good counsel who will explain the effect of 39E so you can succeed .

Thank you

[vinny]

See also Ahmed, R (on the application of) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 10 (23 October 2018).

[Sunny024]

See also Ahmed, R (on the application of) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 10 (23 October 2018).

I understand the claim /appeal was dismissed and home office won the case. Right vinny?

[zimba]

This case was based on the rules in place before Nov 2016 changes (so no paragraph 39E)
However I think this ruling kind of implies that the discretions appearing in the rules for disregarding the periods of overstaying somehow are 'unlawful' despite the fact that the rules clearly allow periods of overstaying to be disregarded if an applicant applied for a new application as an overstayer within a set time. This line from the judgment was kinda bizarre:

There is no arguable merit that the Applicant was to be treated, for the purposes of paragraph 276B, as if he had leave to remain and thus to be in “ lawful residence ”; nor in the contention that the Respondent’s construction would lead to starkly unfair results to applicants. Rather, it is readily foreseeable that if applicants were to be so treated, it would create fertile ground for the abuse of the system.

But that is not the argument at all. I am not sure why the applicant's lawyer even argued that an overstayer is lawfully present here
I think the lawyer for the applicant should have argued that the lawful residence requirement for long residence comes with some discretions, the obvious one being the fact that periods of overstaying waiting (here a period of unlawful residence) for an application made within 28 days of becoming an overstayer shall be disregarded as per rules, which has been a marker for fairness in the rules and no fertile ground for abuse of the system.

[shah_143]

See also Ahmed, R (on the application of) v Secretary of State for the Home Department (para 276B – ten years lawful residence) [2019] UKUT 10 (23 October 2018).

I understand the claim /appeal was dismissed and home office won the case. Right vinny?

hi Sunny, on this basis we are wrong? i am too confused man.

i don't understand what is going on and where we are on this matter.

can anyone help or clear my confusion?

thank you.

[Sunny024]

I'm confused too like everyone, I think it depends on how the judge gets it. 39e can't work any other way. What's the point of allowing you to make an application and refusing because you been Overstating? 39e is an exemption, it doesn't say subsequent leave has to be granted if you use 39e.

When is your hearing anyway?

[vinny]

See also Discussion.

[Sunny024]

See also Discussion.

Thank you vinny

[shah_143]

See also Discussion.

Thank you vinny

hi Vinny and Sunny,

did this decision come in favor of the appellant?

thank you.

[Sunny024]

It was reverted back to lower from upper tribunal.judge accepted there was an error .

[shah_143]

It was reverted back to lower from upper tribunal.judge accepted there was an error .

thank you Sunny,

please see below its bit old but still relevant

https://www.bailii.org/cgi-bin/format.c ... AND+(2515)

thank you.