Query about lawful residence

[lala97]

Dear All,

I have a question regarding my eligibility as a candidate for the ILR LR Scheme, this is my immigration history:

- Arrived in the United Kingdom in September 2013 on a tier 4 student visa, and completed the programme in 2015.

- Got admission to a UK university in 2015, and came back to the UK using old my student visa as it had not expired. Applied for a new visa but was rejected on the basis of insufficient maintenance funds. I was able to complete another application (18/11/15) before my old visa expired (23/11/15) and the visa was granted on 28/06/2016.

- Applied for an extension in 2019 as I changed to a master's course and this was granted till 13/08/2020.

- Completed my program in 2020 but was unable to leave as flights to my home country were cancelled. Spoke to my university and was advised that no penalty will be incurred until 31st August. I was told to apply for exceptional assurance if I am unable to leave before then.

- Applied for the exceptional assurance due to the pandemic on 25th August, but didn't hear back until 24th October when I was informed, that my request will not be granted and was asked to leave.

- Left the country (on my own accord) on the 26th of October and came back for a PhD degree on 21st April 2021.

The total number of absences from the UK: 366 days.

The maximum period of absences from the UK: 177 days.

It will be 10 years next year and I was wondering if the pandemic scenario will be seen as a break in lawful residence as my request was rejected and I left only 1 day after getting the reply from Home Office.

[zimba]

Did you apply for a new visa 14 days after leaving the UK in October 2020 ? If not then your lawful residence is broken

[lala97]

Did you apply for a new visa 14 days after leaving the UK in October 2020 ? If not then your lawful residence is broken

No, I didn't.

But I was told that as long as I applied for the exceptional assurance scheme, I will not be seen as an overstayer as flights to my home country didn't resume until October 2020.

This was the home office guidance

If you have overstayed your leave
If your visa or leave expired between 24 January 2020 and 31 August 2020 there will be no future adverse immigration consequences if you didn’t make an application to regularise your stay during this period. However, if you have not applied to regularise your stay or submitted a request for an exceptional assurance you must make arrangements to leave the UK.

[zimba]

Yes that is all good as you would have been protected under Section 3C as long as you had a pending application. The issue is that on the day you left the UK you did not have valid leave as your request for exceptional assurance was rejected two days before that (your section 3C and lawful residence ending due to rejection). If you had valid leave, then you could leave and come back within 6 months as you did and the lawful residence would have been intact. However, if you leave without a valid leave, then you are expected to apply for a new visa within 14 days as per paragraph 39E of the rules to maintain continuous residence.

During the time in which your request for ‘exceptional assurance’ is pending you will continue on the conditions as per your current or most recently expired visa. If you are granted ‘exceptional assurance’ it will act as a short-term protection against any adverse action or consequences after your leave has expired. If conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your ‘exceptional assurance’.

https://www.gov.uk/guidance/coronavirus ... -in-the-uk

Please see the long residence guide: https://assets.publishing.service.gov.u ... gov-uk.pdf

Time spent outside the UK
Gaps in lawful residence

You may grant the application if an applicant:
• has short gaps in lawful residence through making previous applications out of
time by no more than 28 calendar days where those gaps end before 24
November 2016
• has short gaps in lawful residence on or after 24 November 2016 but leave was
granted in accordance with paragraph 39E of the Immigration Rules
• meets all the other requirements for lawful residence

Here is the paragraph 39E of the rules:

39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or
(3) the period of overstaying was between 24 January and 31 August 2020; or
(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021.

[lala97]

Yes that is all good as you would have been protected under Section 3C as long as you had a pending application. The issue is that on the day you left the UK you did not have valid leave as your request for exceptional assurance was rejected two days before that (your section 3C and lawful residence ending due to rejection). If you had valid leave, then you could leave and come back within 6 months as you did and the lawful residence would have been intact. However, if you leave without a valid leave, then you are expected to apply for a new visa within 14 days as per paragraph 39E of the rules to maintain continuous residence.

During the time in which your request for ‘exceptional assurance’ is pending you will continue on the conditions as per your current or most recently expired visa. If you are granted ‘exceptional assurance’ it will act as a short-term protection against any adverse action or consequences after your leave has expired. If conditions allowed you to work, study or rent accommodation you may continue to do so during the period of your ‘exceptional assurance’.

https://www.gov.uk/guidance/coronavirus ... -in-the-uk

Please see the long residence guide: https://assets.publishing.service.gov.u ... gov-uk.pdf

Time spent outside the UK
Gaps in lawful residence

You may grant the application if an applicant:
• has short gaps in lawful residence through making previous applications out of
time by no more than 28 calendar days where those gaps end before 24
November 2016
• has short gaps in lawful residence on or after 24 November 2016 but leave was
granted in accordance with paragraph 39E of the Immigration Rules
• meets all the other requirements for lawful residence

Here is the paragraph 39E of the rules:

39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn, abandoned or lapsing; or
(3) the period of overstaying was between 24 January and 31 August 2020; or
(4) where the applicant has, or had, permission on the Hong Kong BN(O) route, and the period of overstaying was between 1 July 2020 and 31 January 2021.

Thanks for the explanation but can an exception be made in the event that flights were unavailable to leave the country until 26th October as the rejection was made under short notice. or should I have applied for another exceptional assurance despite the rejection even though I had purchased the earliest available ticket to leave the country ?

[zimba]

Your problem is that you failed to apply within 14 days for a new visa when you left. If you applied within 14 days for a visa and returned within 6 months, you would have been fine.

If your case for exceptional assurance was strong enough, UKVI should have granted you exceptional assurance which they did not. This means they believed you could have left the UK but you possibly did not make the effort. I remember in the summer of 2020 flights were pretty much happening (I flew to Europe in September 2020). You probably had to try to get back home before visa expiry via third countries, etc. Instead, you chose to apply for exceptional assurance and risk becoming an overstayer if refused

[lala97]

Your problem is that you failed to apply within 14 days for a new visa when you left. If you applied within 14 days for a visa and returned within 6 months, you would have been fine.

If your case for exceptional assurance was strong enough, UKVI should have granted you exceptional assurance which they did not. This means they believed you could have left the UK but you possibly did not make the effort. I remember in the summer of 2020 flights were pretty much happening (I flew to Europe in September 2020). You probably had to try to get back home before visa expiry via third countries, etc. Instead, you chose to apply for exceptional assurance and risk becoming an overstayer if refused

Thanks for the help. I sent an email to the CoronaVirus Exceptional Assurance Team explaining what had happened and I was granted the exceptional assurance and told I didn't break lawful residence.

Also, I don't come from a European country, Nigeria had banned flights until mid-September, and airlines were selling tickets but these flights did get cancelled and not refunded. Hence, why I waited till October to avoid any cancellations and issues as I could not financially afford to buy 2 tickets.

[lala97]

Dear all,

I have a question about lawful residence.

I entered the country in 2013 with a student visa valid from 02/09/13 till 23/11/15. I was then offered a place at university after my alevels so I had to switch my visa which I applied in August 2015 (I was in the UK then). This was rejected on the grounds of insufficient maintenance funds and I was asked to report to Croydon UKVI for possible deportation on 3/11/15 despite having valid leave till 23/11/15. I reported and explained my situation. I was not detained but advised to leave voluntarily. But I explained that I planned on making an in time application before my leave expired as I am a student at a university. I was then told to go to the Sheffield reporting centre next week.

I made an in time application on the 18/11/15 and was granted leave on 26/06/2016 due to delays and incorrect rejection of the 2nd application which was resolved by the Home office and backdated to the previously mentioned date. Do any of these periods qualify as temporary admission as I had valid leave and subsequently made an in time application ?

[CR001]

I have merged your topics.

In 2022, you were already advised your continuity of residence was broken.

[lala97]

But the home office said it was not broken as my leave that expired in 13/08/2020 was extended till 26/10/2020 under the COVID assurance scheme (which I applied for) which is when I left the country meaning I left with valid leave and entered with valid leave. This was written in the SAR report

[CR001]

- Applied for the exceptional assurance due to the pandemic on 25th August, but didn't hear back until 24th October when I was informed, that my request will not be granted and was asked to leave.

- Left the country (on my own accord) on the 26th of October and came back for a PhD degree on 21st April 2021.

So what you stated previously wasn't the truth??

You also previously stated you applied for exceptional assurance AFTER your visa had already expired, so you were already an overstayer from the date your visa expired on 13th August 2020 when your exceptional assurance request was refused.

[lala97]

My other question is about the updated guidance regarding short term stay visas. Do visa extensions qualify under that, this was an extension of 2nd tier 4 visa and it was valid for 11 months and 10 days and was not an English language program but completion of final year at university? Does this break lawful residence ... Typically it should be granted for more than 12 months based on course end date (June 2020) and added 4 months - October 2020 but the expiry days given to was 13/08/2020

[lala97]

- Applied for the exceptional assurance due to the pandemic on 25th August, but didn't hear back until 24th October when I was informed, that my request will not be granted and was asked to leave.

- Left the country (on my own accord) on the 26th of October and came back for a PhD degree on 21st April 2021.

So what you stated previously wasn't the truth??

You also previously stated you applied for exceptional assurance AFTER your visa had already expired, so you were already an overstayer from the date your visa expired on 13th August 2020 when your exceptional assurance request was refused.

The exceptional assurance scheme didn't start until after my visa expired, there was a blanket policy extending with expired leave from may 2020 till 31st August 2020. If you were unable leave before 31st August 2020 you should apply for the assurance which I did on the 26th August

[CR001]

You should have applied BEFORE your visa expired, like most visa holders did.

[lala97]

It was not available then

The scheme was not open to the public for them to apply for it or better still it didn't exist. It was introduced the week before the end of the break period 31st August 2020

[lala97]

You should have applied BEFORE your visa expired, like most visa holders did.

Home office guidance then
The latest guidance states that visa holders whose leave expires between 24 January 2020 and 31 August 2020 can stay in the UK until 31st August 2020 without any penalty. Those who are not able to do so by 31 August 2020 may request additional time to stay, also known as ‘exceptional assurance’, by contacting the coronavirus immigration team (CIT)

[zimba]

The home office has clarified that 'exceptional assurance' was only introduced to protect people from adverse action or consequences while staying in the UK during COVID restrictions but it was NOT a grant of any form of leave to remain. So any time spent under it will not be lawful residence in the UK. This makes sense as if you qualified for any new visa or extension you would have applied for that rather than an 'exceptional assurance'

[lala97]

The home office has clarified that 'exceptional assurance' was only introduced to protect people from adverse action or consequences while staying in the UK during COVID restrictions but it was NOT a grant of any form of leave to remain. So any time spent under it will not be lawful residence in the UK. This makes sense as if you qualified for any new visa or extension you would have applied for that rather than an 'exceptional assurance'

Yeah I know about that and I have ensured that the days spent using COVID assurance where made up on my current visa ... So I am applying later than when my 10 years is due. The main issue is that lawful residence is not broken and I am protected from any immigration penalties based on the case notes which reads "In line with UKVI covid assurance guidance, those whose leave expired between 24th January 2020 and 31st
August 2020 have been given assurance that there will be no future adverse immigration consequences
providing they make arrangements to leave the UK" and I left the UK.

The guide for ilr applications from August 2022 which reads
"If the applicant’s permission to stay expired between 24 January 2020 and 31
August 2020, they may have overstayed. You do not have to seek evidence of the
reason for any overstaying during this period. Any overstaying during this period
must be disregarded in line with paragraph 39E of the Rules"

[meself2]

The main issue is that lawful residence is not broken and I am protected from any immigration penalties

Being protected from immigration penalties is not the same as having lawful residence.

Basically, the fact that you didn't not have valid leave doesn't count against you (hence the protection), but it doesn't count in your favor (as lawful residence) either.

You yourself quoted:

You do not have to seek evidence of the
reason for any overstaying during this period. Any overstaying during this period
must be disregarded in line with paragraph 39E of the Rules

Which means "we're not going to care if you overstayed due to that", not "we make it lawful residence".

[zimba]

You are also applying under the long residence rule which requires you to have lawful and continuous residence for 10 years to qualify. Staying in the UK without a visa means you probably (if there was no pandemic) would have not been able to continue your lawful residence. COVID did not stop people from making new applications for leave to remain. You simply were only given protection to stay temporarily until the restrictions were over, you were not granted lawful residence or leave to remain. That would have happened naturally if you properly extended your leave by applying for a new visa. The fact that you did not, suggests you were not normally eligible to be granted a new visa and were expected to leave the UK

[lala97]

The main issue is that lawful residence is not broken and I am protected from any immigration penalties

Being protected from immigration penalties is not the same as having lawful residence.

Basically, the fact that you didn't not have valid leave doesn't count against you (hence the protection), but it doesn't count in your favor (as lawful residence) either.

You yourself quoted:

You do not have to seek evidence of the
reason for any overstaying during this period. Any overstaying during this period
must be disregarded in line with paragraph 39E of the Rules

Which means "we're not going to care if you overstayed due to that", not "we make it lawful residence".

I also said I know this and I have made up for the time spent in that period on my current visa. My interpretation is that continuous residence is not broken as it is not regarded as an overstay.

[lala97]

The main issue is that lawful residence is not broken and I am protected from any immigration penalties

Being protected from immigration penalties is not the same as having lawful residence.

Basically, the fact that you didn't not have valid leave doesn't count against you (hence the protection), but it doesn't count in your favor (as lawful residence) either.

You yourself quoted:

You do not have to seek evidence of the
reason for any overstaying during this period. Any overstaying during this period
must be disregarded in line with paragraph 39E of the Rules

Which means "we're not going to care if you overstayed due to that", not "we make it lawful residence".

I also said I know this and I have made up for the time spent in that period on my current visa. My interpretation is that continuous residence is not broken as it is not regarded as an overstay.

You are also applying under the long residence rule which requires you to have lawful and continuous residence for 10 years to qualify. Staying in the UK without a visa means you probably (if there was no pandemic) would have not been able to continue your lawful residence. COVID did not stop people from making new applications for leave to remain. You simply were only given protection to stay temporarily until the restrictions were over, you were not granted lawful residence or leave to remain. That would have happened naturally if you properly extended your leave by applying for a new visa. The fact that you did not, suggests you were not normally eligible to be granted a new visa and were expected to leave the UK

Long residence allows for absence from the UK for up to 6 months. If the pandemic was not a thing, I would have left and made a new visa application for my program that was starting early next year (within the 6 months threshold) but due to travel restrictions in my country, travelling back was not an option then.

Also note that post study visa didnt exist then.

I was eligible for a new student visa but I could only make the application - 3 months to start of the programme, hence why applying for a new visa before my old one expired was not an option for me. The only option for me was to leave and I couldn't hence the covid assurance protection.

[zimba]

For now, there is nothing from the home office that suggests the 'exceptional assurance' will be considered lawful residence. Unless this changes, the default view will be that the period of 'exceptional assurance' in which no leave was granted may not count as lawful residence for the purposes of the immigration rules.

[zimba]

UPDATE on exceptional assurance and long residence: indefinite-leave-to-remain/ilr-10-years ... l#p2154234

[lala97]

UPDATE on exceptional assurance and long residence: indefinite-leave-to-remain/ilr-10-years ... l#p2154234

An update - https://www.gov.uk/government/publicati ... 20an%20end

The period doesn't count towards lawful residence but continuous residence is not broken, I applied for my ILR much later with the additional period I overstayed. This application has also been on hold as caseworkers were waiting for this guidance. I think I should be fine