Have a appointment on thurs with a high st solicitor,But we don't want to get stuck and spend lot of money in case its a weak case.
I posted this bit earlier on group, however I will just re post it here so you could refer to it.
"Consideration has been given to your application and it is noted from your immigration history outlined above that on 30 March 2009 your leave expired and on 25 March 2009 and on 21 April 2009 you submitted two consecutive applications for further leave as student which were both rejected.
You then on 19 June made an application for leave as a Tier 4 Student and your leave was varied from July 2009 to 28 December 2009. Although your leave was varied on 27July 2009 it must be pointed out that any time spent following the submission of an out of time application awaiting for consideration of the application is not considered lawful even if that application is subsequently granted. As you submitted a second application within 28 days, and this application was also rejected, you do not get a further 28 days. Therefore you remained in the United kingdom without leave between 30 March 2009 and 27 July 2009, a period of approximately 118 days.Although you may still have been residing in the United Kingdom during this period, you were doing so without valid leave.Therefore your continuous leave is deemed to have ended on March 2009 and as such your period of continuous lawful residence is considered to have been broken at this point"
I want to just mention the first time our application returned Invalid coz of a slight smile on my photo
and the second time a question D26 we missed a tick, but the D25. asked the exact same thing. Anyways in both cases we re submitted application with a week of receiving the 28 day letter. I want to refer to the Section 3C requirement
Section 3C applies if:
the applicant applies for an extension of stay before their leave expires (an ‘in-time
application’), and
the applicant’s leave expires before the application is decided or withdrawn.
Section 3C extends the leave and any conditions attached to it:
until the application is decided or withdrawn (s3C(2)(a))
for the period the applicant can make an in-time, in-country appeal (s3C(2)(b)), and
for the period whilst any appeal is pending (if the applicant is in the UK) (s3C(2)(c))
Here the Caseworker has treated it as an Out Of time application subsequently where in fact the Original application was in-time. HO office gives the 3c to continue to any appeals how many ever times till the in-time application has reached a decision. Why is re-submitted application treated differently.
Further the caseworker refers it to as 'Rejections' of the application where we have had NO rejection letter from the HO to affirm so, it had been returned as 'Invalid application'.As mentioned in 3c point (ii) it is neither 'decided' nor 'withdrawn'.
Even in regards to Invalid Applications it says:
Invalid in-time applications
If an in-time application is rejected as invalid (rather than refused) after an applicant’s leave has expired, 3C leave continues to apply until the date the applicant has received the notice of invalidity. Under paragraphs A34 and 34C of the Immigration Rules, the notice of invalidity must be given in writing and is accepted to have been received on the date that it is given, except where it is posted, in which case it is accepted to have been received on the second day after it was posted, excluding any day which is not a business day.
The case worker has again calculated the 118 days as one would for an out-of time application. Cause he must actually, as mentions above calculate it from the day the Invalidity letter is received (for us would be next day post)
Both Instances we have been given 28 days time but we have made the reapplication with a week in both instances. if the overstay period was calculated for us it would be surely no more than 28 days, which the HO allows.
Also if considered otherwise, it states under 276B
(v) the application must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.
Pointing out to the last note, the unlawful stay no of days would be the date the second invalidity letter is received to the date the subsequent application is accepted by the Home office
In Guidance for Application from Overstayers says:
Please note that if a migrant makes an out of time administrative review application in respect of an original in-time application, and the HO accepts the administrative review as valid because it would be unjust not to consider the application, 3C leaves continuous from the date the HO decides to reconsider the application.
So in our case it would be 10 days from the invalidity letter date to the date we were sent for biometrics (HO accepts the application and also approved it subsequently)
Considering lapse in resubmitting and these 10 days we have still not over stayed 28 days.
Unfortunately we seem to have been victim of the period where the caseworkers did not contact the applicant for one single correction prior to declaring the application Invalid as is the case now, Had we been given the chance to change the photos, Just for slight smile that too on the dependent's photo the last 10 years in the country have become of no value suddenly
