Long Residence ILR - Continuity broken?

[Lawful10yearilr]

Hello all,

I am inquiring about my lawful 10 year continuous residence.

My brief immigration history as follows:

1, Entered the U.K as a student on 07/09/2006 valid until 31/12/2007.

2.Applied for further student extension. Granted from 18/12/2007 to 31/01/2009.

3.Applied for further student extension. Granted from 15/01/2009 to 31/01/2010.

4.Applied for further extension as PSW on 27/01/2010 by post. Granted from 09/03/2010 to 09/03/2012.
Applied for Tier 1 Dependent partner from home country on 12/03/2012. Granted from 27/03/2012 to 16/06/2012.

5.Applied for further leave to remain as Tier 1 dependent partner. Granted from 06/06/2012 to 16/06/2015.


6.Applied for ILR as Tier 1 dependent partner on 21/05/2015. Refused on 07/01/2016. Decision letter received on 14/01/2016. AR applied on 27/01/2016. AR decision dated 23/02/2016 received by post on 25/03/2016. Original decision maintained. My wife (main applicant) applied for JR and the original decision was overturned in JR and she has been granted ILR last week. My name was not included in JR to be able to apply for Tier 2.

7. Voluntary departure from the U.K. on 22/03/2016 to home country within 28 days from AR refusal and applied for Tier 2 General on 23/03/2016 - within 28 days. Granted from 11/04/2016 to 14/04/2019.

Travelled back to the U.K. on 22/04/2016.

My questions are:

1. Is my lawful stay continuous?

2. If eligible, I am planning to apply for SET LR in Aug/ Sep'16. I already have a LIUK test passed from March'15,is there any validity for it?

3. I have a M.Sc. degree from U.K. Do I need NARIC assessment for English language?

If I am eligible do you see any potential issue/s affecting my application.

Thank you for looking into my topic.

[Abc499]

I'm not expert just sharing my view

Only one thing I've notice which you can reconfirm with expert.
The rules:
Continuous residency is not considered broken if applicant
" departed the UK after the expiry of their leave to remain, but applied for fresh entry clearance within 28 days of that previous leave expiring"

So in your case the expiry date of previous leave might be 23-02-16 when AR decision made. You have applied fresh application on 23-03-16, which is 29th day ! ( 2016 Feb is 29 days )

You can wait, surely seniors will be able to help more clearly.

[Lawful10yearilr]

@Abc499,

You might be right but AR decision letter dated 23/02/16 was received on 25/02/16 by recorded delivery. My understanding is that the 28 day period starts from the day receiving the refusal / decision maintain letter.

On entering UK qualifications NARIC website suggests that "you do not need the visa servicce for UK qualifications."

Further comments / advice from senior members or moderators will be highly appreciated.

Thank you.

[cs95tdg]

I am inquiring about my lawful 10 year continuous residence.

My brief immigration history as follows:

1, Entered the U.K as a student on 07/09/2006 valid until 31/12/2007.
2.Applied for further student extension. Granted from 18/12/2007 to 31/01/2009.
3.Applied for further student extension. Granted from 15/01/2009 to 31/01/2010.
4.Applied for further extension as PSW on 27/01/2010 by post. Granted from 09/03/2010 to 09/03/2012.
Applied for Tier 1 Dependent partner from home country on 12/03/2012. Granted from 27/03/2012 to 16/06/2012.
5.Applied for further leave to remain as Tier 1 dependent partner. Granted from 06/06/2012 to 16/06/2015.
6.Applied for ILR as Tier 1 dependent partner on 21/05/2015. Refused on 07/01/2016. Decision letter received on 14/01/2016. AR applied on 27/01/2016. AR decision dated 23/02/2016 received by post on 25/03/2016. Original decision maintained. My wife (main applicant) applied for JR and the original decision was overturned in JR and she has been granted ILR last week. My name was not included in JR to be able to apply for Tier 2.
7. Voluntary departure from the U.K. on 22/03/2016 to home country within 28 days from AR refusal and applied for Tier 2 General on 23/03/2016 - within 28 days. Granted from 11/04/2016 to 14/04/2019.
Travelled back to the U.K. on 22/04/2016.

My questions are:

1. Is my lawful stay continuous?

2. If eligible, I am planning to apply for SET LR in Aug/ Sep'16. I already have a LIUK test passed from March'15,is there any validity for it?

3. I have a M.Sc. degree from U.K. Do I need NARIC assessment for English language?

If I am eligible do you see any potential issue/s affecting my application.

1) Have a read through the long residence guidance: https://www.gov.uk/government/uploads/s ... .0_EXT.pdf
The potential problem area is the one highlighted in red. Looking at the underlined dates, I notice that you returned to your home country before you received your AR decision. And it also appears to have taken over a month for the HO AR decision letter to reach you... You would be covered by Section 3C/D up until the AR Decision date. It would be worth reading through the long residence guidance and some of the examples carefully, to understand where your circumstances would fall.
2) The LITUK test has no expiry date.
3) NARIC assessments are only required for foreign qualifications. So you don't need one.

[Lawful10yearilr]

@cs95tdg,

Thank you for your input.

My apologies as it's a typo error. AR letter received on 25/02/16 and not March. Left the UK on 22/03/16 and applied for Tier 2 on 23/03/16.

[Lawful10yearilr]

@casa,geriatrix, vinny, CR001, noajthan

Any input from Moderators will be highly appreciated.

Thank you..!!

[Lawful10yearilr]

@ Moderators,

I had to create a new username as old username linked to email id is no longer in use due to security reasons.

Any further comments will be very helpful as I am in a process of booking a PSC appointment.

I have been also advice by a immigration adviser that counting of 28 day period start form date of AR decision maintained and not 2 working / calendar days after date of decision.

Thank you.

[cs95tdg]

I have been also advice by a immigration adviser that counting of 28 day period start form date of AR decision maintained and not 2 working / calendar days after date of decision.

If you take a look through page 22 in the linked guidance above, this is what it states.... Point 2 appears to be what's relevant to your case.

The 28 day period of overstaying is calculated from the latest of the:
- end of the last period of leave to enter or remain granted
- end of any extension of leave under sections 3C or 3D of the Immigration Act 1971, or
- the point that a migrant is deemed to have received a written notice of invalidity, in line
with paragraph 34C or 34CA of the Immigration Rules, in relation to an in-time application for further leave to remain.

[secret.simon]

Your Section 3C leave will have expired on the day the AR was declined, not when the letter was received. The 28 days is a grace period for you to receive the letter, recover from the shock, pack, book your tickets, etc.

Abc499 is correct in pointing out that you submitted the T2G application on the 29th day after your Section 3C leave had expired. Whether the caseworker will throw your application out on that or exercise discretion depends on your luck. I personally would think that the caseworker would exercise discretion, but of course, it is by no means certain.

I would not recommend submitting the LR application at a PEO as I think this would need to go to a senior caseworker, which means that it can not be decided at the window. Better to send it by post.

[Lawful10yearilr]

@ cs95tdg,

I think you are right. Can you shed some more light on the below, I found it through couple of immigration website.

How about the Immigration Rules at Appendix AR 2.9(c)(iii) states that an Administrative Review is pending until it is served in accordance with Articles 8ZA to 8ZC of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) (as amended). This provision states that the notice is deemed to have been served, if posted, two business days after the date on which it is sent.

[Lawful10yearilr]

@ secret.simon,

Thank you for suggesting to go via postal route.
My wife went for JR and she has been granted ILR recently. I was not included in JR. Does it make my stay valid or will it have any positive impact on my application?

I was not included in JR but was included as dependent during initial Tier 1 ULR. And AR application.

Please advice.

[secret.simon]

@ cs95tdg,

I think you are right. Can you shed some more light on the below, I found it through couple of immigration website.

How about the Immigration Rules at Appendix AR 2.9(c)(iii) states that an Administrative Review is pending until it is served in accordance with Articles 8ZA to 8ZC of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161) (as amended). This provision states that the notice is deemed to have been served, if posted, two business days after the date on which it is sent.

Good piece of research.

It seems that Section 3C leave may last for two days after the day on the letter or refusal/rejection.

Immigration Rules AR2.9(c)(iii) read with Immigration Rule SN1.9(a)(i)

The underlying law for Immigration Rule SN1.9(a)(i) is Section 4 of SI 2013/1749, that inserts Section 8ZA to 8ZC into SI 2000/1161.

8ZB.—(1) Where a notice is sent in accordance with article 8ZA, it shall be deemed to have been given to the person affected, unless the contrary is proved—
(a)where the notice is sent by postal service—
(i)on the second day after it was sent by postal service in which delivery or receipt is recorded if sent to a place within the United Kingdom;...

The only thing I find puzzling is that Immigration Rule AR2.9 referenced above refers to two sub-sections of the Immigration Act 1971(sections 3C(2)(d) and 3D(2)(c)) that do not exist. Does that mean that Immigration Rule AR2.9 itself is null-and-void and of no effect (as the relevant section of the underlying Act itself does not exist)? Definitely a question for the lawyers on these forums.

[Lawful10yearilr]

@ secret.simon,

Thank you for gathering more information relevant to AR 2.9 but it appears that is it not applicable any more?

Confuse as UKVI can refuse my application by break in continuous stay by 1 day.!!

I am not sure but is it possible to amend and add my name on JR? Sounds no to me.!!

Any more advice or suggestions..!!

[Abc499]

Confuse as UKVI can refuse my application by break in continuous stay by 1 day.!!

Sorry to intrrupt but writing as very much eager to know the suggestions/ comments from seniours and also interested to see the outcome of this case.

It seems to me that probably there is little bug on the 28 days rules and you will pass through that!

1. they says you need to make the application within 28 days of previous leave expiry.
- by making application within 28 days, it is possible to be an overstayer by maximum 27 days.

2. They says overstaying for 28 days or less will be disregarded.
- to become an overstayer by 28 days you need to apply on 29th day.

So this two is contradictory when application made on 29th day. Because on 29th day application still you are overstayer by 28 days and it will be disregarded !!!

Hope seniours will be able to clarify the status of 29th day application.

[yhm75]

Administrative review decisions are served in accordance with appendix SN of the Immigration Rules. Appendix SN sets out when such decisions are deemed to be served (received).
If the eligible decision is sent by post to an address in the UK, it is regarded as having been received on the second working day after the day on which it was posted, unless there is evidence to prove it was received on a different date.
If the eligible decision is sent by courier to an address in the UK, it is regarded as having been received on the day on which it was delivered unless there is evidence to prove it was received on a different date. The delivery date is the date on which the person signed for the package.
If the eligible decision is sent by post to an address outside the UK, it is regarded as having been received 28 calendar days after the day on which it was posted, unless there is evidence to prove it was received on a different date.
If the eligible decision is sent by email, it is regarded as having been received on the day on which it was sent, unless there is evidence to prove it was received on a different date.
If the migrant claims they received the in UK or overseas decision on a later date, it is their responsibility to show when it was actually received.
.

[yhm75]

this two cases clearly explain 28 days grace period

https://tribunalsdecisions.service.gov. ... 02825-2014


https://tribunalsdecisions.service.gov. ... 35013-2014

[Lawful10yearilr]

@ Abc 499 thank you for your input.

@ yhm75,

Great work for citing some successful JR references which I can always refer for further input.

I had the similar understanding of AR decision served under appendix SN but if AR 2.9 is null and void I am not sure it is to discretion of case worker. Great work though..!! Cheers

[Lawful10yearilr]

To all Moderators, senior members & respected gurus,

Is it possible to add / request UKVI to add or grant ILR to dependent if he was not included in JR but was included in ILR main application and also in AR application. Now through JR main applicant has received her ILR recently.

Is it worth contacting local MP?

Any advice / thoughts will be appreciated..!!

Thank you.

[helpingperson]

As you were dependent and relying on main applicant who has received ILR through JR process, in personal opinion, speak to a good solicitor, you should get ILR.

Had Home Office not refused your wife and yours' first application for ILR, you would both have ILR, now in court your wife has won the case and got ILR, you should be getting same result.

[Lawful10yearilr]

@ helpingperson,

That is also my argument but I am unsure how to approach UKVI for the same? Don't know which department to contact or how to proceed. Is there any contact number or email id for the same?

Any suggestions?

[helpingperson]

Why you not going to solicitors?

If you google, some will even offer free advice and then you can decide from there.

[Lawful10yearilr]

@ helpingperson,

I have contacted couple of solicitors which I consulted during ILR refusal and again their advice differs. Only one said that you can further represent to UKVI and also can request help from your local MP.

Do we have any similar cases on this forum where UKVI has granted the visa.

Moderators, Senior members, Respected gurus please advice as if the above is possible?

Thank you.

[Lawful10yearilr]

Hello All,

Another query;

Can I get an PSC appointment 4 weeks in advance or it has to be 42 days / 6 weeks. Also any advice about which PSC to attend? Croydon / Solihull / Sheffield?

Thank you.

[Lawful10yearilr]

UPDATE..!!!

SET LR approved today at Croydon PSC in just under 2 hours No questions asked..
Thank you all moderators & members..!!

Cheers

[vinny]

Well done! Congratulations!