BC questions

[shahzebsaeed]

Arrived: 24/12/2005
Left 2 weeks later to complete studies and came back July 2006
Student dependant

Main applicant visa extention was rejected in 2009 which affected my visa too, we appealed until we received final refusal letter in 11/11 and left subsequently within the 1 month time frame.

I got married and came back to UK in June 2012 on EEA FP and I am now have PR for almost 2 years so going for BC.

Few questions:

Original date of entry? Will it be 23/12/05 or should I put 28/06/12 when I came back on EEA FP? There was less than 6 months gap between the time I went back and came bsck to UK

I was working on record until I received final rejection letter as appeals process took its time, would that be considered against me for good character test?


Thanks

[Amber]

So when your appeal decision was a refusal you became an overstayer? If so, you’ll have to wait at least 10 years from that date.

[shahzebsaeed]

So when your appeal decision was a refusal you became an overstayer? If so, you’ll have to wait at least 10 years from that date.

Are you sure about this? First time I am hearing this, I didnt break the law....the appeal was my right and when the appeal didnt come in my favour I left?

[shahzebsaeed]

So when your appeal decision was a refusal you became an overstayer? If so, you’ll have to wait at least 10 years from that date.

Are you sure about this? First time I am hearing this, I didnt break the law....the appeal was my right and when the appeal didnt come in my favour I left?

In-time application refused, appeal right exercised, refusal
decision upheld
The migrant had leave until 1 March 2015 and submitted an application for further
leave on 26 February 2015. The application was refused on 31 July 2015. The
migrant exercised their right of appeal and on 1 October 2015 the court upheld the
refusal decision. No onward appeal was made.
In this case the migrant’s leave was extended during the period:
• their application was awaiting determination
• they could have brought an appeal against the refusal decision
• their appeal is pending
Therefore, the migrant began overstaying on 16 October 2015, based on:
• appeal determined on 1 October 2015
• adding 14 days while an in-time onward appeal could be brought gives 15 October 2015

Found this on caseworkers guidance

[Amber]

Yes, if you overstayed you’ll have to wait 10 years from that date.

[shahzebsaeed]

Yes, if you overstayed you’ll have to wait 10 years from that date.

My point as per guidance that would not be overstaying though? I just copied the guidance in the post above

[Amber]

Good character guidance? Link please.

[shahzebsaeed]

Good character guidance? Link please.

https://assets.publishing.service.gov.u ... s-v8.0.pdf

I am talking about the fact that you stated it will be classed as overstaying as per this doc it doesnt, the good character part doesnt even come into the question yet.

[Amber]

Overstaying under the good character requirement not a grace period for making a subsequent application is what matters.

[shahzebsaeed]

Overstaying under the good character requirement not a grace period for making a subsequent application is what matters.

What does that mean?

Good character guidance states


Overstaying
Prior to 24 November 2016, migrants were permitted a grace period of 28 days after the expiry of any leave during which they could make a further application to renew
their leave without being penalised as an overstayer.

Changes to the Immigration Rules on 24 November 2016 abolished this 28-day grace period, and now provide for current overstaying to be disregarded only in a very limited number of scenarios. Otherwise it is a ground for refusal.

For further information see applications from overstayers.
Where a person overstayed at some point in the 10 years prior to an application for
citizenship, discretion to overlook this breach will normally only be considered if it is
the sole adverse factor weighing against the person’s good character; and
• the person’s application for leave to remain was made before 24 November
2016 and within 28 days of the expiry of their previous leave, or
• the person’s application for leave to remain was made on or after 24
November 2016, and the application did not fall for refusal on the grounds of
overstaying because an exception under paragraph 39E of the Immigration
Rules applied, or
• the period without leave was not the fault of the applicant, for example where
it arose from a Home Office decision to refuse which is subsequently
withdrawn or quashed or which the courts have required the Home Office to
reconsider.
For information on dealing with breaches of conditions see liability to administrative
removal.

[Amber]

You never made a subsequent successful application within 28 days, did you?

Simply because paragraph 39E applies in your circumstances, that does not mean you are not an overstayer or that your status is regularised. You are still an overstayer – in fact, it is precisely an exception for overstayers. That paragraph 39E applies only means the fact you are currently an overstayer will be overlooked when considering certain requirements of the Rules.

[shahzebsaeed]

You never made a subsequent successful application within 28 days, did you?

Simply because paragraph 39E applies in your circumstances, that does not mean you are not an overstayer or that your status is regularised. You are still an overstayer – in fact, it is precisely an exception for overstayers. That paragraph 39E applies only means the fact you are currently an overstayer will be overlooked when considering certain requirements of the Rules.

I was given the right to appeal withing 28 days which I did

[shahzebsaeed]

You never made a subsequent successful application within 28 days, did you?

Simply because paragraph 39E applies in your circumstances, that does not mean you are not an overstayer or that your status is regularised. You are still an overstayer – in fact, it is precisely an exception for overstayers. That paragraph 39E applies only means the fact you are currently an overstayer will be overlooked when considering certain requirements of the Rules.

Does the exception not apply for applications made before 2016? Mines was way back in 2009

[AnotherUUID]

I might be wrong but I think the OP makes a very good point wrt the caseworker guidelines for overstaying under section "In-time application refused, appeal right exercised, refusal decision upheld".

It appears the example given in the above section exactly matches the OP's case. If these guidelines are taken on face value based on what's written, then OP's original leave to remain was automatically extended during the entire appeal process until 14 days after the final court ruling. If the OP left the UK within 14 days of the date of decision, then should not be considered as having overstayed as per the guidelines above which explicitly state that an applicant becomes an overstayer once the 14 day grace period after the final ruling has lapsed.

You say you left the UK on 11/11/2009 a result of the final ruling. What was the date of the final decision?

[shahzebsaeed]

I might be wrong but I think the OP makes a very good point wrt the caseworker guidelines for overstaying under section "In-time application refused, appeal right exercised, refusal decision upheld".

It appears the example given in the above section exactly matches the OP's case. If these guidelines are taken on face value based on what's written, then OP's original leave to remain was automatically extended during the entire appeal process until 14 days after the final court ruling. If the OP left the UK within 14 days of the date of decision, then should not be considered as having overstayed as per the guidelines above which explicitly state that an applicant becomes an overstayer once the 14 day grace period after the final ruling has lapsed.

You say you left the UK on 11/11/2009 a result of the final ruling. What was the date of the final decision?

I will have to look through the documents for the exact date but I know for sure we booked the flights well within the time frame given to us to leave the country, precisely not to be an overstayer so I am very confident that we left in time.

[Amber]

Once the appeal decision was received you no longer have valid leave under section 3(c) or (d).