Break in 10 Years?

[Cattak]

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.

Hello friends in above post. This decision from UTT is very technical and complex. we should not be worry about it as his second gap was not according to per rules of 39e. also it was previous overstaying not current overstaying. in my understanding all in this thread of posts we have "current period of overstaying". therefore we will be ok hopefully.

[Sunny024]

https://www.bailii.org/uk/cases/UKUT/IAC/2018/10.html

The UT says that exception for overstayers in Rule 276B(v) (28/14 days overstaying) does not help a person who has no 10 years continuous and lawful residence in the UK under Rule 276B(i). I appeared for the Home Secretary: Ahmed [2019] UKUT 00010 (IAC)

This case has been reported by UT that means UT is bound to take all39e related case decisions on Basis of this case decision. this is end of the road in UT but can be challenged in court of appeal
I spoke personally to a very prominent barrister and he confirmed me this .

[Ports]

Thanks Sunny024,
This explain why perhaps in my meeting the barrister did not bring up that 39E applied in my case, I actually asked him specifically and let's see what he says. Then some people get it from HO with out any problem when they have gaps of overstaying. And also what about current period???? all of us are here applied within 14 days of AR exhausted/refusal and then varied to ILR LR. This is what solicitors are plainly advising to do. then they are telling case worker has done a mistake???? Let's see how the UT judge view it in your case and please update us. Good luck.

[Sunny024]

I can confirm Ahmad vs sec of case UT decision has been challenged in court of appeal by Ahmad

[Cattak]

I can confirm Ahmad vs sec of case UT decision has been challenged in court of appeal by Ahmad

Hi Sunny! Do you know whether Ahmad has been granted permission to go to the Court of Appeal. If yes when is the hearing date?

[Sunny024]

He withdraw his appeal unfortunately!!

[Cattak]

He withdraw his appeal unfortunately!!

what stage is ur case now? have u got ur decision or u still waiting. In my UT hearing (which was on the 8th of January, and Ahmed J decision yet not reported/published then) the judge has remit my case to FTT for hearing again. there is no talk or refrence of Ahmed case in my decision but i m afraid that when i would go to FTT hearing in coming months this Precedent reported case may prove fatal to my case or anybodys case like me. i don't know what argument can one make against it. and in my situation paragraph 39e "current overstay period disregarding" is the only remedy. i had been fighting home office unfair refusals already and now this problem.

i don't wanna smother you but Sunny is there any way we can contact each other via phone. i don't know whether this forum will let me share my number or email here.

[CR001]

He withdraw his appeal unfortunately!!

what stage is ur case now? have u got ur decision or u still waiting. In my UT hearing (which was on the 8th of January, and Ahmed J decision yet not reported/published then) the judge has remit my case to FTT for hearing again. there is no talk or refrence of Ahmed case in my decision but i m afraid that when i would go to FTT hearing in coming months this Precedent reported case may prove fatal to my case or anybodys case like me. i don't know what argument can one make against it. and in my situation paragraph 39e "current overstay period disregarding" is the only remedy. i had been fighting home office unfair refusals already and now this problem.

i don't wanna smother you but Sunny is there any way we can contact each other via phone. i don't know whether this forum will let me share my number or email here.

This is not permitted. Any such details will be removed. Post iquestions etc n public so that all may benefit and all can offer advice. Preferably start your own topic with your circumstances or continue in one you have rather than tagging onto another users thread.

[Cattak]

sorry i was not familiar with the rules

[Cattak]

We are in a very darn situation due to "Ahmed reported case". This is the only case law on current overstay period and will be for a long time unless any applicant successfully challenge the argument in it in higher courts other than FTT.
I spoke to my representative today and he said there is no simple way out around it. the only way is to successfully argue against it and engage the 276b v (current period) with 276b a "continuous lawful residence" once again into its original meaning. They both may be freestanding rules in the 276b but former is defined as an exception in the immigration rules so that the immigration rules remain fair for the purpose of deciding applications made outside time in a limited time 14 0r 28.

For the reasons outlined above, your application is refused under Paragraph 276D with reference to Paragraph 276B(i)(a) of HC 395 (as amended) ”.

also please can anyone send me the link to HC 395. I can't find on my search.

[kavikkdi]

Hi Cattak,

My SET LR also refused under same rule. Please keep posted your hearing date and appeal response. Any chance this case to consider under Human Rights rule?

Thanks

We are in a very darn situation due to "Ahmed reported case". This is the only case law on current overstay period and will be for a long time unless any applicant successfully challenge the argument in it in higher courts other than FTT.
I spoke to my representative today and he said there is no simple way out around it. the only way is to successfully argue against it and engage the 276b v (current period) with 276b a "continuous lawful residence" once again into its original meaning. They both may be freestanding rules in the 276b but former is defined as an exception in the immigration rules so that the immigration rules remain fair for the purpose of deciding applications made outside time in a limited time 14 0r 28.

For the reasons outlined above, your application is refused under Paragraph 276D with reference to Paragraph 276B(i)(a) of HC 395 (as amended) ”.

also please can anyone send me the link to HC 395. I can't find on my search.

[Faisal2019]

Hi All,

My Set (LR) application is refused too because of Ahmad case. I am in the process of JR. Thought to share this with you guys.

[Sunny024]

Don’t go for JR ,Ahmad case was reported on judgement from JR,similar case will be refused too.
Did you not get appeal rights ?

[kavikkdi]

Hi Sunny024

My Set Lr refused with appeal rights due to out of time application.

Reason for refusal says:
The Tier 2 General Migrant application refused on 20 march 2018 with the right to an Administrative review .You did not apply for an Administrative review. It is therefore consider that your period of valid leave to remain ended on 20 march 2018. As you arrived in the UK on 19 October 2008 you did not have 10 years lawful residence at that point.
On 26 March 2018 you applied out of time for leave to remain on the basis of your family and private life. You varied the application on 24 September 2018to as application for Indefinite leave to remain on the basis of 10 years lawful residence. As your application was submitted within 14days of the previous refusal decision on 20 March 2018 you meet the requirements of paragraph 276B(v). However, It should be noted that any time spent awaiting the decision on an out of time application is not consider a period of lawful leave to remain for the purpose of continuous residence. As noted above you had valid leave to remain until 20 March 2018 and did not have 10 years lawful residence at that point. As such your period of continuous lawful residence is considered to have been broken at this point.Therefore, you have not demonstrated 10 years continuous lawful residence and cannot satisfy the requirement of paragraph 276B(I)(a).

For the reason outlined above, your application for indefinite leave to remain on the ground of long residenceis refused as you have failed to meet the requirement of the Immigration Rule Under paragraph 276D with reference to paragraph 276B(i)(a) of HC395 (as amended).

I am preparing appeal ground, please suggest me how can I proceed.

Thanks

[Sunny024]

Ahmad decision was reported that means your appeal will be dismissed in lower and upper tribunal as they are bound by Ahmad decision,only way is to take it to court of appeal and argue ,but it will be a long road ahead

[zimba]

The rules will only disregard the overstaying periods between the periods of valid leave under 39E. This means there is no merit in arguing otherwise in the court

[Faisal2019]

Hi Sunny,

Thank you for your suggestion. But my lawyer is saying he will argue that in different way. He won’t challenge Ahmad case. He will raise the positive things of my immigration history and seek for HO discretion.

Can’t see any other way, hence keep trying.

[zimba]

There is no such discretion. You need 10 lawful years under the rules and you are short of 7 months

[Sunny024]

Hi Sunny,

Thank you for your suggestion. But my lawyer is saying he will argue that in different way. He won’t challenge Ahmad case. He will raise the positive things of my immigration history and seek for HO discretion.

Can’t see any other way, hence keep trying.

Hi,judge might consider it outside the rules if you have any strong article 8 claim,forget about 39e for now in LT ans UT

[zimba]

The case of Ahmed also included Article 8 claims which were dismissed. Even if there are legitimate Article 8 claims, HO may offer you FLR.

[Sunny024]

Just a quick update on ahmad vs sec of state matter.

This is now challenged and matter is in the court of appeal. There are other several other refusal cases based on 39e and 276b(v) linked to it aswell.
He is seeking permission for hearing. It might take atleast 5 months from now to get an update on this case.

[kavikkdi]

Hi Sunny024

Thanks for your information. How do you know this ? Please share more information about hearing.
Please keep update here.

Thanks

Just a quick update on ahmad vs sec of state matter.

This is now challenged and matter is in the court of appeal. There are other several other refusal cases based on 39e and 276b(v) linked to it aswell.
He is seeking permission for hearing. It might take atleast 5 months from now to get an update on this case.

[Sunny024]

my solicitor told me about it ,he applied for permission to COA,if permission is granted, he will have an hearing .

[Faisal2019]

Hi All,

Hope you are good. The HO put me on reporting. I just wanted to ask if anyone of you have this experience of going to reporting centre as tomorrow is my first day and I am not sure what happens in there ? Do they ask any question?

[Sunny024]

Hi,as it’s your first reporting day,they will give you a schedule reporting date tomorrow ,it can be weekly ,fortnightly or monthly until you have appeal rights or secure valid leave, you must report to them without failure ,not doing so,can be a criminal offence.
Good luck