Dear all - readers/visitors of the forum as well as moderators.
I am writing to seek some advice and insight on my complex immigration matter. It is quite a long read and I apologise in advance.
Immigration History:
• I arrived in the United Kingdom on 26 August 2007 with leave to enter as a student until 31 October 2009.
• On 16 October 2009, I submitted an in-time application for LTR as a Tier 4 General Student, leave was granted until 15 October 2012.
• On 05 October 2012, I submitted an in-time application for LTR as a Tier 4 General Student, leave was granted until 23 January 2014.
• On 22 January 2014, I submitted an in-time application for LTR as a Tier 4 General Student, leave was granted until 13 October 2014.
• On 13 October 2014, I submitted an in-time application for LTR as a Tier 4 General Student, leave was granted until 30 January 2019
• On 02 August 2017, I submitted an in-time premium service application for Indefinite Leave to Remain on the basis of Long Residency, this application was refused with a right of appeal on 02 August 2017.
- On 16 April 2017, I lodged an appeal which was later dismissed at a first tier hearing on 29 June 2017. Appeal rights were exhausted on 16 July 2018.
- I still had valid leave till 30 January 2019 so I let it go.
• On 30 January 2019, I re-submitted an in-time postal application for Indefinite Leave to Remain again on the basis of Long Residency, this application was also refused with NO RIGHT of appeal on 28 June 2019.
Reason for Refusal dated 02 August 2017:
622 days total absences in the last 10 years from 26 August 2007 - 02 August 2017 (> 540 days allowed absence). Secretary of State not satisfied that I met the requirement of paragraph 276D with reference to paragraph 276B(i)(a) and 276A.
Reason for Refusal dated 28 June 2019:
Reason was same as previous refusal and under paragraph 353 of the immigration rules was deemed as a REPEAT APPLICATION rather than a fresh claim, on the basis that my human right claims was previously considered and refused, hence no right of appeal. No discretion was exercised because most of my absences were holidays to my home country (Nigeria).
As at the date of decision, I had accrued 11 years & 10 months of leave based on the wording from my refusal letter (due to section 3C leave), but HO failed to consider the extra time spent in the U.K which would have reduced my absences.
• No criminal record/Convictions, deception and no more than 180 days in a 12 month period.
Further Steps:
• After the most recent refusal, and with no right of appeal, my solicitor advised to apply for Judicial Review (JR). Before issuing JR, I submitted a pre-action protocol letter (PAP) on 25 July 2019 and decision was maintained by HO on 26 July 2019.
• JR application was then issued on 30/09/2019.
• Permission refused on papers on 29/10/2019.
• Renewed for Oral hearing and was listed for hearing at the Upper Tribunal on 22 November 2019. Permission granted to proceed with application for Judicial Review.
• Signed consent order received on 16 December 2019, withdrawing the decision of 28 June 2019, and agreeing to make a new decision within 3 months. Sealed on 18 December 2018.
Questions regarding my pending application:
1) As HO as now agreed to reconsider my in-time application of 30 January 2019, which was refused when 3C was engaged, do I still have 3C leave as of today?
2) Will the act of 3C leave extend my continuous Residence for the purpose of Set (LR)?
3) Have I become an overstayer at any point?
4) As of the date of the sealed consent order, and counting 10 years backwards from then, I would have been out of the country for less than 540 days which was the main reason for the two refusals. Will HO consider this whilst being under 3C leave on the date of decision any time from now?
*Note: Not eligible for any other routes such as FLR(FP) or Tier 2.
Essentially, what do you think my chances are in getting my ILR approved? I would appreciate any useful advice or opinions so I can have a back-up plan. Thanks for your help.
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