LONG RESIDENCE APPLICATION REFUSED DUE TO "GAP"

[Imani]

Hi,

I came to the UK on 02/05/2000 and have been here since. I was a student for 7 years (2yr A levels, 4 yrs Uni and 1 yr Masters). I then applied for IGS in person at Croydon on the 31/12/07 which was valid until 31/12/08. All previous applications had been done on time with no issues. I then applied for Tier 1 Post Study Work on 20/11/08 and this was where the trouble started.

My PSW application was refused on maintenance only as i had i had 4 occasions where i had less than £800 in my account but had the required amount on date of application. I received the decision on 24/12/08 less than a week to the visa expiry date. I was given the option to appeal which i didn't take as i discovered i had my saving account i could have also used, so i decided to reapply and asked proving both the original accounts i sent and savings account on the 27/12/08 which the home office received on the 29/12/08. Unfortunately for me, the application was returned on 24/01/10 as invalid as the forms had changed and i hadn't realised this. The decision was made on the 22/01/09. At this point, i then used a solicitor and sent another application which the home office claim was received on 30/01/09. This "out of time" application was approved and in their letter dated 02/03/09, i was advised " i had now been given a total of 24 months leave under a combination of IGS and PSW" as the visa was given until 31/12/09.

I then proceeded to apply for Tier 1 General in 10/09 which was approved till 10/12. I made this application myself and there is a section on the form that asks if you have stayed in the UK beyond your stay, i answered no as i believed i had 3C leave while the application that was invalid was been considered and subsequent application was then granted.

I then applied for ILR under long residence in 04/10 and picked up the special delivery yesterday advising me i had a gap of "32 days" from 31/12/08 till 30/01/09 and was refused under paragraph 276D with reference to 276B(i) a. I was advised i cannot appeal the decision as i am not required to leave the UK. The 2 page decision letter had no date, no name for the person that made the decision on behalf of the secretary of state, was full of errors such as

1. The letter stated i applied for T1 HSM programme but the application i made was PSW which i would have expected they would have on their record.

2. The letter stated i had 32 days out of time between 31/12/08 - 30/01/09. Clearly going by their own record that should be 30 days not 32.

Never seen such an unprofessional letter from the Home Office before.

My issues now are as follows.

1. I believe a wrong decision has been made as i am now being penalised for a "gap" which was overlooked previously with the PSW visa. I applied for a year visa and only given 9 months as the date of approval was 03/09 for an application made 01/09 their own letter stated i had been given 24 months total leave and i had believed this took into account the 3C leave, why are they overlooking that now?

2. With regards to the original application, where i was refused just for maintenance, i am wondering if i may have a case with regards to the recent Pankina Judgment as i would have been approved with regards to maintenance.

3. I want to reapply and probably will use the same solicitor i used previously (except he is expensive) with all the evidence i have and wouldn't mind being a test case in a possible Judicial review as i believe it is time someone did something regarding long residence applications if they refuse to accept a pre protocol letter. I will have to include a bit more of my personal life as i didn't in my ILR application as i assumed the Home Office will at least check their own records. I have siblings and parents here, I am married and expecting in a few weeks time and i would like something to be done.

4. I do not believe it is fair for me to have to wait till 2014 to apply for ILR when the rules are likely to have changed again anyway.

Has anyone come accross anything similar? that would be very helpful. Thought to share my experience so it can benefit others.

Sorry for the very long post.

[Beige]

I think you may have a bit of difficulty if you go the route of blaming the UKBA for the gap. From your post, the gap itself seems to be your fault. It was your responsibility to make sure that the application form you used the second time round was the correct one especially as they sent your application back to you while your IGS visa was still valid. Also, the fact that they chose to grant you the PSW visa in the end does not overule the fact that between 31/12/08-30/01/09 you were not in the UK lawfully.

[sam_lam15]

Imani, sorry to hear about your case being refused,
as I understand, you do have a gap, but it should be from 22/01/09 to 30/01/09, you should argue about it, ask for a review/reconsideration or make a complaint.

I have also pm you, please check your message box.

[Imani]

I think you may have a bit of difficulty if you go the route of blaming the UKBA for the gap. From your post, the gap itself seems to be your fault. It was your responsibility to make sure that the application form you used the second time round was the correct one especially as they sent your application back to you while your IGS visa was still valid. Also, the fact that they chose to grant you the PSW visa in the end does not overule the fact that between 31/12/08-30/01/09 you were not in the UK lawfully.

I do not dispute the invalid application decision. That was the correct decision. It was human error on my part as i resent the previous application out of panic as i was aware my visa was soon to expire. Anyone can make a mistake just like whoever sent me the decision letter made mistakes on the letter with their facts.

My argument is, during the period in question, i wasn't folding my arms and doing nothing. I had made attempts to stay within the rules.

[Imani]

Imani, sorry to hear about your case being refused,
as I understand, you do have a gap, but it should be from 22/01/09 to 30/01/09, you should argue about it, ask for a review/reconsideration or make a complaint.

I have also pm you, please check your message box.

Thanks for your reply.

Your above statement in bold is my main issue. As no decision was made until 22/01/09, I believed I had 3C leave under the same conditions as my previous visa IGS. I got the invalid decision letter 2 days later which is irrelevant. If there was a gap at all, it should have been between 22/01- 30/01. My solicitor advised he posted it on the 28/01 but home office records show 30th even in the SAR file. Regardless, the gap shouldn't have been more that 8-9 days. If this is wrong, then i guess we will need more clarity on what 3C and 3D leaves cover.

I will also check my PM. quite new to this site so not sure how it works. lol

PS: Cant seem to use some buttons yet such as bold, italic etc oh well.

PS: @ sam-lami15. I have now sent you a PM.

[geriatrix]

PS: Cant seem to use some buttons yet such as bold, italic etc oh well.

Because of incorrect settings you had chosen in your profile (under preferences). I have changed them - so you should be able to, now.


regards

[Imani]

PS: Cant seem to use some buttons yet such as bold, italic etc oh well.

Because of incorrect settings you had chosen in your profile (under preferences). I have changed them - so you should be able to, now.


regards

Thank you Sushdmehta.

On a more serious note, i would like your input. I know you are a "guru" in certain matters.

Do you think i have any chance at all with a re-applicaton/review?

[sam_lam15]

Imani,
but, what was the timescale like in your ILR application, ??
when did you send it and how many weeks had you waited ??
and I know you said there wasn't even a name on your ILR refual letter,
but was there a place name at all, such as Croydon, Liverpool, Sheffield ?
thank you!

[geriatrix]

Imani,
but, what was the timescale like in your ILR application, ??
when did you send it and how many weeks had you waited ??
and I know you said there wasn't even a name on your ILR refual letter,
but was there a place name at all, such as Croydon, Liverpool, Sheffield ?
thank you!

Is this relevant to the query? Or is it an attempt to seek information you need and therefore do not mind interrupting an ongoing discussion on a specific issue?

Please refrain from doing so.



regards

[geriatrix]

On a more serious note, i would like your input.

Settlement under the long residence category isn't something I have a good understanding of, but here's my honest opinion based on my limited understanding of the rules and the information provided by you:

• Section 3C only applies where an application for extension of stay is made before the expiry of the person's leave and the leave expires before the application for variation has been decided;
• Its effect is to extend the leave and any conditions attached to it while the application is neither decided or withdrawn, while an in-country appeal could be brought, or, while an appeal is pending;
• Section 3C does not apply if an application is refused before substantive leave expires;
• Section 3C does not apply where a person's limited leave has already expired at the time of the application.

1. Section 3C would have come into play only if you had appealed the decision received on 24/12/2008. This said, I must add that it is surprising that you were given the right to appeal when you still had one week valid leave - this is another reason why Section 3C didn't come into play. Anyhow, but as you never appealed but reapplied (afresh), the Section 3C protections does not apply.
2. Section 3C protection does not apply to your application received by UKBA on 29/12/2008 because invalid applications do not enjoy such privileges (AFAIK). And by the time you became aware of this (24/01/09) you had no valid leave to remain the UK (technically an overstayer).
3. Section 3C does not apply to application received by UKBA on 30/01/09 because it was an out-of-time application.

Therefore I agree with others that between the period between 01/01/09 and 30/01/09 you did not have any legal right to be in the UK, hence your ILR clock was reset - for any type of in-country application for settlement that does not include period of illegal stay in the UK as valid.

It is unfortunate that the application submitted on 29/012/08 turned out to be invalid. Had that been refused for any other reason, you would have been given the right to appeal .. and therefore an option of being protected under Section 3C. Unforunately, didn't happen.

The bottomline is that is the applicant's responsibility to ensure that he submits a valid application in-time. That is when legal provisions like section 3C come to the rescue of the applicant. Unfortunately, ignorance or mistakes cannot be used to claim innocence or blame UKBA.

As for Pankina judgement, the policy document doesn't state anything about applicants who were refused on maintenance funds (only), were given the right to appeal but decided not to (appeal). Check with UKBA / consult your solicitor.




regards

[ramsilr77]

hi Imani,

my ILR got rejected similar circumstances because of a gap of 20days but mine was not a long residency , I have applied on 5 years stay and I dont have the right to appeal because I have visa until 2012. we have written a correspondence to home office but no reply yet, thinking to go for judicial review as one of the member won the similar case with Judicial review.

please i have seen and heard people with similar problem , so please share any success stories.

Regards
Rams

[bb21]

Imani, sorry to hear about your situation.

The home office have made a mistake, however according to the IDI, your gap is actually more than the caseworker stated, being between 31/12/2008 and 02/03/2009, the day your new leave was granted, totalling 60 days if I did my maths correct. See Example 5 on page 15 of the IDI document.

Like others have said, the judge (or whoever will be sitting the Judicial Review) will find it difficult to blame UKBA for your second application being invalid, as reminders to check that the application form is the current version is pretty prominent on the UKBA/IND website. 3C leave unfortunately only extends if an "in-time" application has been made. See page 11 of IDI. It does not specifically say "in-time valid" application but the general consensus is that this is what is implied. I don't have the relevant detailed paperwork relating to 3C leave to hand, but I'm sure someone will be able to check if the keyword valid is implied.

Sorry about the bad news. It does sound very harsh after so many years of waiting.

[Imani]

Just a quick update.


I have now received my ILR last week tuesday after my lawyer successfully challenged the home office decision to refuse to grant me ILR due to the "gap" in a previous application. (pls read first post for case history). He asked for a reconsideration in August which he got no reply to. Earlier this month, he resent a pre action letter to the judicial review dept giving them 14 days to reply or take the case to the high court and surprise they posted back my passport with ILR before the 14 days was up. The only thing is i gave birth to my daughter first week of October so she just missed out on automatic citizenship.

My post is just to encourage anyone who has been refused ILR due to a geniune error in a previous application for which the home office may be able to use descretion to challenge the decision but please seek legal advise first.

Thanks to all that took time to view and respond to this topic.