LR Continuous lawful residence, 28 days, previous rejections

[Dantean]

I am preparing for an ILR application based on 10 years Long Residence, starting with a tourist visa visit in 2006. I requested a SAR and it brought to light 2 areas of concern with applications for visas which had been rejected, one in 2008 and one in 2010. The one in 2010 is fairly straightforward and I think won't be a problem, but the one in 2008 was rejected twice. I searched extensively through the boards but couldn't find anyone's experience which matched closely.

Here is a timeline of the 2008 applications:

28/04/2008 Application Raised, Student LTR, Form FLR(S)
30/04/2008 Expiration of existing student visa
21/05/2008 REJECT (Invalid, in time. Applicant has failed to attend her biometric appointment)

30/05/2008 Application Raised (9 days after reject dispatched), Resubmitted
24/06/2008 REJECT (Applicant did not complete new application form. Therefore application is invalid.)

01/07/2008 Application Raised (7 days after reject dispatched), Resubmitted
30/07/2008 GRANT L.T.R.


The 2010 rejected application:

24/08/2010 Application Raised, T4 General Student LTR
31/08/2010 Expiration of existing student visa
09/09/2010 REJECT (Rejected as not complete - mandatory section on application form L17)

24/09/2010 Application Raised (15 days after rejection)
22/10/2010 GRANT L.T.R. (Valid out of time LTR 31/08/2010 raised date 24/09/2010)


It seems to me the 2010 application is ok because of Immigration Rules Part 7, 276B (v) "…and any period of overstaying pending the determination of an application made within that 28 day period." But since the 2008 application was rejected twice, it's not clear to me that this applies.

Can someone offer an opinion, or share experience with a similar set of circumstances where an application was rejected twice (but with each resubmission made well within 28 days of notice of rejection)?

Thanks.

[Princess of Ammi]

a discretion thinking grounds to be legitimate caused aplications to be returned and your back-lodging could be applied if case worker wished or was in very good mode as they have power and authority to apply discretion or a refusal but if decision to refuse your application takes place there wont be no chance of overturn becuase it doesnot fit in or comply to rule concerned for such a grant.

[Dantean]

I am not sure what you are saying. Do you mean the original grant of visas after the rejections in 2008 and 2010 were only granted due to discretion? And therefore the ILR would only be granted if the officer decides to allow it?

I think at least the 2010 grant of leave was well within the rule, so not due to discretion.

[riz1986]

Due to double rejection u r overstayer from 30/04/08 until the LTR was granted on 30/07/08 almost three months....ur LR could be broken n it is solely on the basis of discretion for succeeding on the 10 yr LR basis.

[Zee ali]

I am preparing for an ILR application based on 10 years Long Residence, starting with a tourist visa visit in 2006. I requested a SAR and it brought to light 2 areas of concern with applications for visas which had been rejected, one in 2008 and one in 2010. The one in 2010 is fairly straightforward and I think won't be a problem, but the one in 2008 was rejected twice. I searched extensively through the boards but couldn't find anyone's experience which matched closely.

Here is a timeline of the 2008 applications:

28/04/2008 Application Raised, Student LTR, Form FLR(S)
30/04/2008 Expiration of existing student visa
21/05/2008 REJECT (Invalid, in time. Applicant has failed to attend her biometric appointment)

30/05/2008 Application Raised (9 days after reject dispatched), Resubmitted
24/06/2008 REJECT (Applicant did not complete new application form. Therefore application is invalid.)

01/07/2008 Application Raised (7 days after reject dispatched), Resubmitted
30/07/2008 GRANT L.T.R.


The 2010 rejected application:

24/08/2010 Application Raised, T4 General Student LTR
31/08/2010 Expiration of existing student visa
09/09/2010 REJECT (Rejected as not complete - mandatory section on application form L17)

24/09/2010 Application Raised (15 days after rejection)
22/10/2010 GRANT L.T.R. (Valid out of time LTR 31/08/2010 raised date 24/09/2010)


It seems to me the 2010 application is ok because of Immigration Rules Part 7, 276B (v) "…and any period of overstaying pending the determination of an application made within that 28 day period." But since the 2008 application was rejected twice, it's not clear to me that this applies.

Can someone offer an opinion, or share experience with a similar set of circumstances where an application was rejected twice (but with each resubmission made well within 28 days of notice of rejection)?

Thanks.

Hi

Read this board member case in the link and search his user name and read his posts. He had a ga of 91 days. His case seems like your's his user name is BIGBOY86

http://www.immigrationboards.com/indefi ... l#p1136218

[geriatrix]

Was the intention to not submit biometrics premeditated for some reason?
Did UKV&I send reminder(s) to the applicant to submit biometrics, if that was the procedure then? But the OP "chose" not to submit biometrics even then?
Was there a genuine reason for not submitting biometrics?

[Dantean]

Thanks for the replies.

Was the intention to not submit biometrics premeditated for some reason?
Did UKV&I send reminder(s) to the applicant to submit biometrics, if that was the procedure then? But the OP "chose" not to submit biometrics even then?
Was there a genuine reason for not submitting biometrics?

The answers to the questions are:
There was no intention not to submit biometrics, the applicant wanted to and tried to comply with all requirements.
The applicant received no letter requesting a biometric appointment, and no reminders.
The reason was that the application did not know about this very new requirement and received no information about it.

The first indication there was a problem with the application was the application rejection letter (ICD.3676) dated 21 May 2008. The rejection letter, which was sent to the school which helped submit the application states, "Your client was informed by letter on 29 April 2008 of the requirement to make an appointment to provide their biometric information as part of their application for leave to remain in the United Kingdom. To date our records show that your client has failed to make an appointment within the timescales notified to her in the biometric notification letter, without reasonable explanation. We are therefore returning your client's application as invalid". But a biometric appointment request was never received, and there is no indication in the SAR minute/case notes that a letter requesting biometric appointment was ever sent (subsequent applications show that letter 3749 was sent when the application was received by them). The rejection letter also an X in the boxes for the application must be made using the correct specified form, the application requires the applicant to apply for biometric document and an appointment for biometrics must be made, and oddly a handwritten tick in the box indicating part of the form wasn't filled in, and a tick in the box indicating the application must be signed (it was signed).

It seems a bit complex in this case because 28 April 2008 was the first day of the "pilot" program to require biometrics for all London postcodes, and though the application was signed 24 April 2008, it must have been postmarked 28 April 2008 because that's the "application raised" date. The form used was FLR(S) version 02/2008. 28 April 2008, was also the first day that form 04/2008 came into use.

vinny posted a quote from 34I regarding forms where when a new form comes into use, the old form can be used for up to 21 days after. According to this, that form should be valid. However, the 02/2008 version does not have a section for the new biometric requirements, so there is a potential conflict there.

My theory is that this application must have been one of the first requiring a biometric appointment so a mistake was made and no letter asking for biometrics was sent. Then, by the time the rejection letter was written (21 May) they were more accustomed to the procedures and just assumed the letter had been sent.


As a point of interest, another of vinny's posts quotes Explanatory memorandum, 7.18, which says that if an application is rejected, the 28 day window starts from the date of the rejection rather than when leave expired. If that is the case, then wouldn't the period of overstaying be from 21 May 2008 to 30 July 2008?

[geriatrix]

The explanatory note that you refer to talks about the 28 days window within which an "overstayer" can "submit an application", which then is considered by UKV&I. This does not mean that the stay becomes legal .. you remain an overstayer from the day section 3C leave ends until you are granted leave.

Correction to a mistake I made in my earlier response - You did not become an overstayer on 30-Apr-08 but on the second day of the date of postage of the refusal letter. That is when section 3C leave ceased ... assuming that this bit of the law is not new but existed in 2008 as well!

[Dantean]

Thanks sushdmehta, that's helpful.

You did not become an overstayer on 30-Apr-08 but on the second day of the date of postage of the refusal letter. That is when section 3C leave ceased ... assuming that this bit of the law is not new but existed in 2008 as well!

The second day of the date of postage of refusal letter which was posted 21 May 2008, would be 23 May 2008. So the period of overstaying (assuming law existed) would be from 23 May 2008 to 30 June 2008 (the day before the submission of the successful application), which is 38 days.


I am trying to decide whether a PEO application with no covering letter explanation (not drawing any attention to the problem, as some friends have had ILR granted with similar anomalies without comment) would be a better strategy than a detailed explanation of the complicated situation in a covering letter. Is it better to draw attention to the problem and try to explain it to a PEO caseworker, or just be prepared to answer any questions and save attempts at explanation for the court if it comes to that?

[Dantean]

If the application for ILR is refused based on this out of time period of 38 days, how could it be challenged in court? When the application for ILR is made, there will be existing leave. Does that mean it won't be possible to appeal the decision and it must be challenged by means of Judicial Review?

[geriatrix]

You may appeal if given the right to do so. Else, JR is the only option IMHO ...


Edit: I believe 276B(v) can make your application for settlement possible despite the incidences of 2008.

[Dantean]

Thank you sushdmehta. I did not see the edit of your response until just now. That's encouraging.

I've tried to read the immigration rules Part 7 276B(v) carefully a few times, and it does seem that the language "any period of overstaying pending the determination of an application made within that 28 day period" would apply to the period after the 3C leave from the first application ended, from the date of raising the second application until that application was determined to be invalid. So it seems it would then be considered as 9 days overstaying between rejection of first and raising of second application, then a separate period of 6 days between the rejection of the second and raising of the third and successful application.

(Unless the the word "determination" only applies to deciding a valid application and specifically not to rejecting an application.)

[geriatrix]

I am yet to fully understand the essence of 276B(v) - does it allow the time waiting in determination of an out-of-time (but within 28 days) application which is eventually refused / invalidated to be ignored as well or only those application which are eventually approved?

I pointed it out hoping that it may be of relevance in your case, even though I myself don't fully understand the interpretation of it yet.

[Dantean]

On Set(LR) There is a question about staying beyond your period of leave. If one has an in time application rejected, as mentioned earlier in this thread, with the application being corrected an sent back within 28 days, how should the following question be answered:

D7. Have you ever stayed in the United Kingdom beyond the end of your period of leave?
Yes [ ] provide details below: No [ ]

Would one tick "No" because the time would be ignored, or "Yes" and provide a detailed explanation? Or are they only referring to periods where no in time application was made?

[Dantean]

The ILR was granted in this case. Either it wasn't a problem after all, or it simply wasn't noticed. An immigration advisor recommended answering No to question D7 because it would not have been considered overstaying. I have my doubts whether that is technically correct, but there were no questions asked by the case worker about this issue. I have seen other stories of people being rejected for similar reasons, but in this instance, all went well.