ILR Refused on a 5 Months Gap

[AZUK83]

Hi All, i have been a reader on this board for a long time, but writing first time, i have been in UK since 2004 and applied for ILR in 2014 on 10 years basis, which was refused after 6 months due to a gap which happened in 2009.

i was studying in my college since 2007 doing ACCA, and passed 12 exams by 2009, my visa was expiring on 31 March 2009 and i applied for extension on 24th march 2009 a week before expiry, on 11th of April 2009 i received my application as invalid because of my photographs were not right, they gave me an option to re send application but told that now rules have changed since 1 april 2009 so now i needed new documents from my college, however i resent my application with new documents on 23 April 2009 which was refused in june 2009 with a most ridiculous objection that my college did not write in visa letter that on what basis i was given admission in course despite that i was studying the course for 2 years and was in last stages of it which the college wrote in letter, i was not given an appeal right and told to leave within 28 days, i went to many lawyers who told me i hve no option, went to a solicitor who told me he is going to send a new application, which we did and i received my visa in Oct 2009, now when i applied for ILR they have raised that from 11 April 2009 till 2 October 2009, i was here without any statues and my continuous lawful residence was broken.

they gave me a right of appeal which i won and homeoffice was told to review my case by judge, homeoffice again refused my appeal saying we have reviewed and again found no reason that the lawful residence was not broken, they gave me right of appeal again.

now my lawyer has found a letter in my subject assess bureau record dated 11 june 2009, which is the same date of my second refusal student visa, but on this letter i have been been granted the visa, i never received this letter.

now my hearing is on 24th of june 2016 and my solicitor suggests that we have a strong case on that letter as evidence, however i need your input on what should i do in court or has some one had similar story ?

[geriatrix]

On what date did you receive the refusal letter in June 2009?
On what date did you apply again after that (that led to leave being granted in October 2009)?

[AZUK83]

On what date did you receive the refusal letter in June 2009?
On what date did you apply again after that (that led to leave being granted in October 2009)?

Hi I received the refusal on 10 of June 2009 and sent fresh application on 23 of June 2009, which was granted in october

[AZUK83]

On what date did you receive the refusal letter in June 2009?
On what date did you apply again after that (that led to leave being granted in October 2009)?

Sorry the date of letter was 11 June 2009, i received in 17th June and i resent application on 29th of June which was granted in October 2009

[geriatrix]

(v) the applicant 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 leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.

As per my own understanding of this clause above:
Interpretation 1: Had the application you submitted on 23-Apr-2009 been successful, the period between 12-Apr-2009 and the day of the decision (approval) would have been ignored for the purpose of settlement under LR in line with the rule above. But because the out of time application was refused, you remained an oversatyer from 12-Apr-2009 until such time that you were granted leave in October 2009.

Some / many say that the above clause means something different:
Interpretation 2: That no matter how many times an out of time application is refused, as long as you keep on making out of time applications within 28 days of previous refusal, this rule allows all the overstay period to be ignored (and that one may even complete 10 years making such out of time applications repeatedly).

I don't know if any or which of the two interpretations of the given rules is correct one but HO has taken the view that interpretation 1 is the correct one.

[AZUK83]

(v) the applicant 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 leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.

As per my own understanding of this clause above:
Interpretation 1: Had the application you submitted on 23-Apr-2009 been successful, the period between 12-Apr-2009 and the day of the decision (approval) would have been ignored for the purpose of settlement under LR in line with the rule above. But because the out of time application was refused, you remained an oversatyer from 12-Apr-2009 until such time that you were granted leave in October 2009.

Some / many say that the above clause means something different:
Interpretation 2: That no matter how many times an out of time application is refused, as long as you keep on making out of time applications within 28 days of previous refusal, this rule allows all the overstay period to be ignored (and that one may even complete 10 years making such out of time applications repeatedly).

I don't know if any or which of the two interpretations of the given rules is correct one but HO has taken the view that interpretation 1 is the correct one.

So you mean i do not stand a chane

[Obie]

The letter in the bundle was not communicated to you. Therefore I beg to differ with your lawyer, that it will have any weight.

My concern is the last application you made after you were given an appeal right. I believe that period is classified as a period of overstating.

I believe the court can only exercise discretion in light of the whole circumstances of the case. However on a plain reading of the rules, I do not believe you qualify for ILR within the rules.

I wish you all the best though.

What was the basis of the first allowed appeal if I may ask?

[geriatrix]

Obie,

There was no FLR application with right of appeal.

In summary:
----
The first FLR application made on 24-March-2009, in-time, but declared invalid on 11-Apr-2009.
The second FLR application was submitted on 23-Apr-2009, refused on 10-June-2009, without a right to appeal.
The third FLR application was submitted on 23-Jun-2009 which was approved in October 2009 (I believe on 3rd October).

The OP applied for ILR in 2014 assuming he had completed 10 years of legal and continuous stay but was refused (overstay between 11-Apr and 02-Oct) with a right of appeal. The appeal was allowed to the extent that the judge asked UKVI to reconsider the ILR application again. UKVI reconsidered but refused again (same reason) with right of appeal. This appeal is currently ongoing.
----

If I understand you right, you are saying that the OP appears to be an an overstayer from 11-Jun to 02-Oct? Rather than from 11-Apr to 02-Oct because the application on 23-Apr is covered by 276B(v).



And, thanks for responding to my PM on this!

[Obie]

Yes my mistake. Sorry there was no right of appeal, which is correct as the then section 82 did not grant a right of appeal, when a person made an application after their leave had expired.

The June application was made out of time . That is the problem .

Under current rules, there would not have been a problem as as he would have been given a 10 working days period to resolve the photograph issue.

But the rules then, did not provide those procedural steps before an application is declared invalid.

I believe he could argue that if you retrospectively apply those invalidation rules, just like you retrospectively apply the 28 days rule, then he suffered historical unfairness and injustice , by the failure of the SSHD'S refusal to notify him to provide a proper photographs, and in those circumstances discretion ought to be applied to overlook the overstaying.

There was indeed overstaying that occurred which clearly exceeded 28 days.

However if the rules today, had applied then, he would have been fine.

[AZUK83]

Yes my mistake. Sorry there was no right of appeal, which is correct as the then section 82 did not grant a right of appeal, when a person made an application after their leave had expired.

The June application was made out of time . That is the problem .

Under current rules, there would not have been a problem as as he would have been given a 10 working days period to resolve the photograph issue.

But the rules then, did not provide those procedural steps before an application is declared invalid.

I believe he could argue that if you retrospectively apply those invalidation rules, just like you retrospectively apply the 28 days rule, then he suffered historical unfairness and injustice , by the failure of the SSHD'S refusal to notify him to provide a proper photographs, and in those circumstances discretion ought to be applied to overlook the overstaying.

There was indeed overstaying that occurred which clearly exceeded 28 days.

However if the rules today, had applied then, he would have been fine.

So is there any hope for me, i hve been here now for 12 yrs, wht should be my best argument, ad u said tht letter carries no weight wht abt the 10 days rule u mentioned