Lawful Residence

[FOX]

If you had made an 'intime' application to vary leave and leave was refused then given a right to appeal.Is the period of pending appeal considered as lawful residence?Can you qualify as a lawful resident for example on 10 year rule if this appeal is pending and have been in UK for more than 10 years ?

[HHH99]

as long as you have made an in time application and the appeal is allowed then yes all that time will be considered as legal, However the appeal has to be allowed and a visa needs to be endorsed on your passport. I went through the same thing and still managed to get my ILR

[FOX]

as long as you have made an in time application and the appeal is allowed then yes all that time will be considered as legal, However the appeal has to be allowed and a visa needs to be endorsed on your passport. I went through the same thing and still managed to get my ILR

HHH99,
Thanx for your reply.I had my appeal dismissed in the first hearing and granted for reconsideration by the high court.The question is, do i have to wait until i get a second hearing to see whether the appeal will be allowed in order to be lawful or assume that my current residence which is 'treated as continuing'hence lawful and eligible for ILR under 10 years rule?Would the HO consider that the period of pending appeal was legal and grant the ILR regardless of whether the appeal will be allowed or dismissed?

[John]

The instructions given to IND staff include :-

CONTINUATION OF LEAVE WHILE AN APPEAL IS PENDING

Paragraph 17 of Schedule 4 to the 1999 Act provides for leave to have effect while an appeal under section 61 or section 69(2) is pending. If an application is made in-time, if the application is refused and if the refusal is appealed, the original leave and any conditions attached to it will have effect from when the appeal is lodged until the appeal is finally determined.

A person whose leave is continuing under paragraph 17 is not entitled to apply for a variation of leave to enter or remain. Any application made should be treated as "out of time", unless it falls for consideration at the appeal under the one-stop procedure (usually because it involves an asylum or human rights claim - see chapter 12, section 2). There is no right of appeal against the refusal of an out of time application that falls outside the one-stop rules.

Leave continuing under paragraph 17 is to be disregarded in calculating whether, for the purposes of section 61 (or section 69(2)), a person may be required to leave the UK within 28 days as a result of a decision.

So yes your leave is still in force, the last visa is "treated as continuing", however you are prevented from making a new application .... such as a 10-year application for ILR.

If you eventually win the appeal then you will be able to make a 10-year application ... if you eventually lose, you won't ... is my reading of the guidance notes.

[FOX]

The instructions given to IND staff include :-

CONTINUATION OF LEAVE WHILE AN APPEAL IS PENDING

Paragraph 17 of Schedule 4 to the 1999 Act provides for leave to have effect while an appeal under section 61 or section 69(2) is pending. If an application is made in-time, if the application is refused and if the refusal is appealed, the original leave and any conditions attached to it will have effect from when the appeal is lodged until the appeal is finally determined.

A person whose leave is continuing under paragraph 17 is not entitled to apply for a variation of leave to enter or remain. Any application made should be treated as "out of time", unless it falls for consideration at the appeal under the one-stop procedure (usually because it involves an asylum or human rights claim - see chapter 12, section 2). There is no right of appeal against the refusal of an out of time application that falls outside the one-stop rules.

Leave continuing under paragraph 17 is to be disregarded in calculating whether, for the purposes of section 61 (or section 69(2)), a person may be required to leave the UK within 28 days as a result of a decision.

So yes your leave is still in force, the last visa is "treated as continuing", however you are prevented from making a new application .... such as a 10-year application for ILR.

If you eventually win the appeal then you will be able to make a 10-year application ... if you eventually lose, you won't ... is my reading of the guidance notes.

Thanx John,
Does this mean that if i made the 10 year application now it will automatically be refused or there will be some consideration done?

[John]

I believe that for the reasons are already stated a 10-year application made before you hear the result of the appeal will be bound to fail.

will be some consideration done?

Yes, to see whether you qualify to make a 10-year application, and the conclusion IMHO is that you will fail that test.