3C/3D Vary Leave - Fresh applications are NOT valid?!?

[HakmedBond]

I would like to ask to the experienced members of the forum about their experiences on varying leave of someone with 3c/3d after the changes on the last months of 2014:

Please note that the following scenarios are taken from the:
3C and 3D leave / This guidance is about leave extended under section 3C or 3D of the Immigration Act 1971
Valid from 24 Oct 2014
https://www.gov.uk/government/uploads/s ... 4.0EXT.pdf


Scenario A)
Person A has made an in time application for leave to remain as a student which has not been decided by the time their current leave expires.
They have also married whilst in the UK and then make a marriage application for leave on that basis after their leave had expired but before the student application was decided.

Can Leave be Varied?
Yes:
Person A’s leave is extended by section 3C while the student application is being considered so they cannot make a fresh application, but they can vary the grounds of the application.
The marriage application can be accepted as a variation of the student application if it meets the standard requirements for an application to vary leave.


Scenario B)
Person B makes an in-time student application which is refused after their original leave has expired.
They subsequently lodge an appeal against that decision.
Person B marries in the UK and submits an application under the marriage category

Can Leave be Varied?
No:
You must reject the marriage application because it was made after the student application had been decided.
If the migrant wishes to submit a marriage application, they must withdraw the appeal before they submit the application. Withdrawing their appeal will end their 3C leave so any marriage application will be made out of time.


I find two baffling points about the above;
1) what constitutes to an appeal being decided? Result of the first hearing from First-Tier Tribunal, the result of the appeal at Upper-Tier Tribunal or when all the legal rights are exhausted?

2) I believe Scneario B might be interpreted as the Person B has got into a relationship either to sustain his/her leave in the U.K. and/or the evidence required for a valid spouse application has been generated after First-tier Tribunal's dismissal. Does that mean if Person B had been married (in other terms had all the valid documentation for the Spouse application) even when he made his first application, would he/she then be considered as an in-time application?



I apologise for the length of this post - it is just something that has been confusing me for a while and I understand that there are also others in similar dilemma.


Thank you for reading it.

[HakmedBond]

I would really appreciate any feedback on the above - I failed to believe that no one has attempted to vary leave after FTT hearing.

Many thanks

[vinny]

You cannot vary a decided (e.g. refused) application.

You cannot make a fresh application while Section 3C/3D is engaged.

[HakmedBond]

You cannot vary a decided (e.g. refused) application.

You cannot make a fresh application while Section 3C/3D is engaged.

Thank you for your reply Vinny.

Does that also mean the fresh applications after withdrawing 3d/3d are void if the leave had expired during the proceedings?


Thanks again

[vinny]

No. After Section 3C/3D is disengaged, the applicant becomes an Overstayer. However, some rules permit a fresh application within 28 days of overstaying.

[HakmedBond]

Thank you again!

That has been my fear. Would you be able to advice which article or material I can read to find more about this?

Or if you have the time I would greatly appreciate more infor.

Thanks

[HakmedBond]

Thank you again!

That has been my fear. Would you be able to advice which article or material I can read to find more about this?

Or if you have the time I would greatly appreciate more infor.

Thanks

I think I misunderstood your answer and used multiple negatives incorrectly.

You answered as "no" to my question as to whether the specified fresh applications are void - that means the fresh applications are not automatically void which is good.


Any suggestions where I can find more information about fresh applications from over-stayers?


Thanks

[HakmedBond]

No. After Section 3C/3D is disengaged, the applicant becomes an Overstayer. However, some rules permit a fresh application within 28 days of overstaying.

Hi Vinny,

When you get the chance, would you be able to advice what those rules are? I am planning on making an FLR(m) in-country application - apart from the current leave status meet all the requirements (no child though)

Thanks

[vinny]

Guidance > R-LTRP

[HakmedBond]

Guidance > R-LTRP

Dear vinny,

Thank you very much for the clarification - it has really brought me some comfort.

I understand that E-LTRP 2.2 clearly state that applications made within the 28 days of the visa expiry are perfectly valid / I guess my 28 day would begin on the day when the exhaustion of the legal rights took place.

I am however slightly confused about R-LTRPT.1.1. point b. What does valid application mean here? Filling the right form and payment etc? Or is it a loophole to refuse applications on contrary to E-LTRP 2.2?


Thank you very much again. I plan to submit my application sometime this week when I will post a new topic highlighting all the documents that I have sent in.

[vinny]

See also valid.

[HakmedBond]

See also valid.

Hello vinny,

Thank you again.

Very interesting read - although I had come across it before I wasn't sure due to the dates the posts were written.

Thank your for your time.

[HakmedBond]

After a series of long researches I finally found the answer to my post above. I will post it here as I believe it might come in handy for someone;

Once 3C/3D is disengaged, the applicant in fact does become an overstayer - just like how vinny suggested.

However, one should not fear that their application will be subject to immediate refusal as it is an out-of-time application.

Meeting all the other requirements for the application, a period of up-to 28-days overstaying is NOT considered a breach of the immigration laws. Therefore, whether you withdraw or exhaust all your legal rights, once your 3C/3D has ended you can make a fresh application to vary your leave without worrying about the immigration status related to this very specific issue.

Of course there would be all sorts of other requirements that the applicant would need to be aware of.

[focusatme]

hello,
so when a fresh application is made withing 28 days of overstaying , could that appication be varried into another catogry?

Example: person makes tier4 applicaiton get refused... appeald in the court gets refused again, visa aready rand out . section 3c ended . persona makes a fresh application for tier4 again withing 28 days of receiving a refusal form the court. last out of time applicaiton still pending and person married in the uk. could you please help me out understanding the question if

can a person vary the last application (which was made overstaying of under 28 days) into FLR(M)?

thanks

[focusatme]

Hello
Could anyone help me out with this confusing situation

Is it possible to vary an outstanding tier4 application (made out of time but within 28 days ) into spouse visa ?

Applicant made tier4 application within 28 days after appealed dismissed in the court . Now applicant Married and full full all other requeprement and wants to make application for spouse visa without leaving UK.

Plz help us understanding this glitch that when varying an outstanding application which was made out of time but less than 28 days .
Thanks a lot

[helpingperson]

Hello
Could anyone help me out with this confusing situation

Is it possible to vary an outstanding tier4 application (made out of time but within 28 days ) into spouse visa ?

Applicant made tier4 application within 28 days after appealed dismissed in the court . Now applicant Married and full full all other requeprement and wants to make application for spouse visa without leaving UK.

Plz help us understanding this glitch that when varying an outstanding application which was made out of time but less than 28 days .
Thanks a lot

Dear Moderators,

Please could you advise on OP above query?

Thank you.

[Casa]

Moderators don't have the answer to all posts. I'm sure that when someone does, they will respond.

[asp]

You should be able to vary the application as you can try making pretty much any application you like at any time (doesn't mean UKVI will validate it) and an application can be varied if it has not been decided.
https://www.gov.uk/government/uploads/s ... pdf#page57

However varying your application won't revive 3C/D privileges as you had no valid leave when you made the application you are about to vary.

What is the point of concern?