URGENT ADVICE NEEDED ON 10 YEAR ILR

[rogerdoger]

Dear All,

I came to UK on 24 Dec 2000. I am applying for ILR under 10 year rule before the end of January 2011 (my current leave runs out on 30 Jan 2011).

I have received my SAR file today from Home Office. All the data seems to be in order, except for 1 thing.

During 2005, my visa was expiring on 20 May 2005. I posted the application on the same day i.e. 20 May 2005 using royal mail next day service. I understand posting on the day of visa expiry is acceptable. However, the real concern is not this.

I forgot to sign the enclosed cheque. As a result in the SAR documents I received I can see on 26 May 2005 my case was rejected and it has notes/minutes saying .. Form is valid but application returned because no fee is paid.

I received the returned documents along with a letter giving me 28 days to send the missing items.

I did manage to send them another cheque within the time frame, however, and this is very unfortunate, that my cheque bounced.

They received my cheque around 6 June 2005 and in the SAR file I can see a decision made on 22 Jun 2005 , it was same as above, form is valid but application returned due to reason NO FEE PAID (chq rejected by bank)

Subsequently, I received another letter giving me 28 days to resend the form along with correct payment. This time I sent them the fee using Postal Orders.

In the SAR file I can see, the fee/docs were received on 30 Jun 2005 and case outcome is GRANT and dated 23 Aug 2005.

What concerns me and why I have told you this whole story is the following:

1- In the SAR in case record sheet for the date 23 Aug 2005 when the leave to remain was granted, there is a note saying "Application valid but out of time by 41 days"

Question: Given the circumstances above, is it safe to assume, a gap has occurred and the ILR clock has been reset in 2005?

2- What about the 28 days given to me on each occassion to provide the missing docs, and on each occassion I have provided them with the docs within 28 days. Can this argument be used to say that, actually the ILR clock has not been broken?

Other than this issue, there is nothing of concern in my SAR. Time is running out quickly, any response on this issue will be highly appreciated.

Thanking you in anticipation.

Roger

[rogerdoger]

Dear all,



After my first post I have been doing a lot of reading around my case. I would be interested to find out your views if the following are reasonable arguments or not.

Information on section 3C looks really promising to me. I understand for section 3C to be applicable the application must be in-time. Given that my LTR (levae ot remain) was expring on the same day when I posted the application i.e. 20 May 2005 it should be considered in-time, right? Therefore, the application on which the Grant decision (dated 23 aug 2005) is made, should be considered a variation of the original application. If so, the ILR clock is not deemed to have been broken right?

On the other hand there is an argument that the requirement in section 3C for in-time application means a 'valid' application - and as my application had a cheque without signature, therefore it is considered invalid application. Hence, any subsequent applications will not be covered under 3C.

Having said that, I could not find a specific requirment of an application being 'Valid' in the legislative text for this provision. An extract is presented below:

I am not sure which argument is stronger, is this case complex enough to involve professional legal help and would it be out of order for me to ask to give me an estimate of the legal costs to be reasonably expected?


Appendix:

3C Continuation of leave pending variation decision E+W+S+N.I.(1)This section applies if—

(a)a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b)the application for variation is made before the leave expires, and

©the leave expires without the application for variation having been decided.

(2)The leave is extended by virtue of this section during any period when—

(a)the application for variation is neither decided nor withdrawn,

Source: http://www.legislati...k/ukpga/1971/77

[vinny]

Under what category were you applying at that time?

[rogerdoger]

the application was on form FLR (s) .. tier 4 subsequently replaced .. international student

[vinny]

Consequences of failing to pay the fee specified for an application

16(1) Subject to paragraph (2), where an application to which regulation 3, 4, 11, 12, 13, 14, 15 or 16 refers is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee.

(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.

(3) The Secretary of State may treat an application referred to in paragraph (2) as withdrawn if, having written to inform the person who made the application that the specified fee has not been provided, that fee is not provided within 28 days of the letter having been posted.

[rogerdoger]

Consequences of failing to pay the fee specified for an application

16(1) Subject to paragraph (2), where an application to which regulation 3, 4, 11, 12, 13, 14, 15 or 16 refers is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee.

(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.

(3) The Secretary of State may treat an application referred to in paragraph (2) as withdrawn if, having written to inform the person who made the application that the specified fee has not been provided, that fee is not provided within 28 days of the letter having been posted.

Dear Vinny,

Thanks for your reply. Point 2 looks promising as what I understand from it is if the application is made before 21st May 2007, it shall be considered valid even if the specified fee is not paid.

I have taken the opportunity to search for similar cases in case law to find a precedent. I have come accross a Forrester case, this lady sent her application and her cheque bounced and HO decided to reject her application and deport her. The case went to court. Perhaps you would know more about it. Here is the link i found with details about the case.

http://www.newzimbabwe.com/pages/immigr ... 18968.html

In view of above, how much chance in percentage do you think my application have/?

[vinny]

You posted your (initial) valid application in-time.

They sent you letters requesting payment. You replied to each of their letters within 28 days respectively. They eventually accepted payment and approved your application.

Therefore, they apparently did not consider your application to be withdrawn.

Perhaps you can argue that section 3C remained in force throughout, while the application was under consideration. Hence, there was no gap?

[rogerdoger]

Dear Vinny,

Your posts have given me a lot of confidence and I think it is backed by the legislative text, guidlines and case precedent. I hope and wish the case officer sees the things from same view point as you explained above. It costs a lot of money but I guess I still need some solid legal representation. Or at least one of the immigration solicitor can help me draft a letter to UKBA explaining the basis on which my application should be successful. The discussion above can provide a strong basis for this sort of letter, I think.

Regards,

Roger

[rogerdoger]

Dear Vinny I just wanted to thank for your help as I have received my passport back from HO - the ILR is stamped 01 March 2011. I posted the application on 24 Jan - so it took exactly 5 weeks.

Subsequent to our discussions I drafted a letter myself explaining what we discussed on this forum. Couldn't have done this without your help.

Regards,

Roger

You posted your (initial) valid application in-time.

They sent you letters requesting payment. You replied to each of their letters within 28 days respectively. They eventually accepted payment and approved your application.

Therefore, they apparently did not consider your application to be withdrawn.

Perhaps you can argue that section 3C remained in force throughout, while the application was under consideration. Hence, there was no gap?

[kkmj]

Could you pls tell how did you draft your covering letter?

I have a similar situation of payment failure once in my visa application in 2005.

Thanks.

[rogerdoger]

Could you pls tell how did you draft your covering letter?

I have a similar situation of payment failure once in my visa application in 2005.

Thanks.

Here is the letter, feel free to modify it according to your circumstances.

Case Officer
UK Border Agency
SET (O)
Indefinite Leave to Remain
PO Box 591
Durham
DH1 9FS

22 January 2011


Dear Sir / Madam,

Why the ILR should be granted

I was pleased to receive the SAR file couple of days ago. The SAR was requested in order to help me fill out the application for ILR under long (10 years) residence category. I am satisfied that this application is pretty strong. However, there is a slight concern.

In the SAR file the documents show that during 2005, when an extension to leave to remain was granted in August 2005, a note was made in the Case Record Sheet that ‘application valid but out of time by 41 days’. I suspect that there may be an argument that because the application was out of time, therefore, a gap has occurred in the qualifying period for the ILR for long residence.

I would like to argue that the note made in the case record sheet contains an error of judgment and therefore, the application was not out of time by 41 days hence, the ILR should be granted.

Background

During 2005 my LTR was expiring on 20 May 2005. I posted my application on the same day via next day delivery. Home Office receives application on 21 May 2005. However, as I forgot to sign the cheque accompanying the application, I am given 28 days to resend the application with correct payment.

I manage to send the application back with another cheque that Home Office receives on or around 6 June 2005. But this time, and this is very unfortunate, that my cheque bounces. Subsequently Home Office again gave me 28 days to resend the application with correct payment. This time I send the application with postal orders and I am granted the LTR in August 2005.

Why the application was not out of time

After discovering the above note in the SAR I engaged in extensive research around my case. I have spoken to immigration advisors and lawyers who have advised that my case is pretty strong and a letter of explanation should suffice.





Basis of argument

There are 3 main areas of the argument.

Firstly, the application for an extension in the LTR as a student is categorised as a regulation 4 application. As mentioned in the Immigration and Nationality (Cost Recovery Fee) Regulations 2007.
Source: http://www.legislation.gov.uk/uksi/2007 ... ion/4/made

Secondly, it has been specified in law, what the consequences should be if an applicant does not include the appropriate payment with his application.

It is mentioned in the subsection 2 of regulation 16 of the Immigration and Nationality (Cost Recovery Fee) Regulations 2007 that,

(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.
Source: http://www.legislation.gov.uk/uksi/2007 ... on/16/made

Therefore, I have been assured as my application was made before 21st May 2007 it should be considered as having been validly made.

Lastly, if we accept the application was validly made in May 2005 then the period between May 2005 and August 2005 should be covered under Section 3C. As I posted the application before my LTR expired, I responded within 28 days on both occasions when Home Office required me to and subsequently Home Office accepted my application and granted LTR in August 2005. Therefore, Home Office did not consider my application to have been withdrawn and the application on which LTR was granted was not judged to be a fresh application but rather a variation of the original application that was made in May 2005.

In light of above I am hopeful that you would see the strength of this argument and would disregard the note about application being out of time by 41 days altogether when making your decision whether to grant ILR.

Case Precedent

One of the advisors mentioned a case precedent of R (on the application of Teisha Forrester) v SSHD [2008] EWHC 2307 (Admin), decided by Mr Justice Sullivan. Although the case facts differ somewhat but the underlying payment issues are very similar.

I am married and have significant private life ties in the UK after having lived lawfully for more than 10 years. Therefore, I feel it would be disproportionate to reject my application for ILR on the basis of a single out of time application, which is disputed as well on the basis of above arguments.

Good Character

I would like to take this opportunity to mention that I am of a good character. I have never been in trouble with the law or otherwise during my entire stay in the UK. I would be grateful if in view of above you can grant me the ILR.

Thanking you in anticipation.


Yours faithfully,


Roger

[kkmj]

I really appreciate your help!

[Loveislovely]

Could you pls tell how did you draft your covering letter?

I have a similar situation of payment failure once in my visa application in 2005.

Thanks.

Here is the letter, feel free to modify it according to your circumstances.

Case Officer
UK Border Agency
SET (O)
Indefinite Leave to Remain
PO Box 591
Durham
DH1 9FS

22 January 2011


Dear Sir / Madam,

Why the ILR should be granted

I was pleased to receive the SAR file couple of days ago. The SAR was requested in order to help me fill out the application for ILR under long (10 years) residence category. I am satisfied that this application is pretty strong. However, there is a slight concern.

In the SAR file the documents show that during 2005, when an extension to leave to remain was granted in August 2005, a note was made in the Case Record Sheet that ‘application valid but out of time by 41 days’. I suspect that there may be an argument that because the application was out of time, therefore, a gap has occurred in the qualifying period for the ILR for long residence.

I would like to argue that the note made in the case record sheet contains an error of judgment and therefore, the application was not out of time by 41 days hence, the ILR should be granted.

Background

During 2005 my LTR was expiring on 20 May 2005. I posted my application on the same day via next day delivery. Home Office receives application on 21 May 2005. However, as I forgot to sign the cheque accompanying the application, I am given 28 days to resend the application with correct payment.

I manage to send the application back with another cheque that Home Office receives on or around 6 June 2005. But this time, and this is very unfortunate, that my cheque bounces. Subsequently Home Office again gave me 28 days to resend the application with correct payment. This time I send the application with postal orders and I am granted the LTR in August 2005.

Why the application was not out of time

After discovering the above note in the SAR I engaged in extensive research around my case. I have spoken to immigration advisors and lawyers who have advised that my case is pretty strong and a letter of explanation should suffice.





Basis of argument

There are 3 main areas of the argument.

Firstly, the application for an extension in the LTR as a student is categorised as a regulation 4 application. As mentioned in the Immigration and Nationality (Cost Recovery Fee) Regulations 2007.
Source: http://www.legislation.gov.uk/uksi/2007 ... ion/4/made

Secondly, it has been specified in law, what the consequences should be if an applicant does not include the appropriate payment with his application.

It is mentioned in the subsection 2 of regulation 16 of the Immigration and Nationality (Cost Recovery Fee) Regulations 2007 that,

(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.
Source: http://www.legislation.gov.uk/uksi/2007 ... on/16/made

Therefore, I have been assured as my application was made before 21st May 2007 it should be considered as having been validly made.

Lastly, if we accept the application was validly made in May 2005 then the period between May 2005 and August 2005 should be covered under Section 3C. As I posted the application before my LTR expired, I responded within 28 days on both occasions when Home Office required me to and subsequently Home Office accepted my application and granted LTR in August 2005. Therefore, Home Office did not consider my application to have been withdrawn and the application on which LTR was granted was not judged to be a fresh application but rather a variation of the original application that was made in May 2005.

In light of above I am hopeful that you would see the strength of this argument and would disregard the note about application being out of time by 41 days altogether when making your decision whether to grant ILR.

Case Precedent

One of the advisors mentioned a case precedent of R (on the application of Teisha Forrester) v SSHD [2008] EWHC 2307 (Admin), decided by Mr Justice Sullivan. Although the case facts differ somewhat but the underlying payment issues are very similar.

I am married and have significant private life ties in the UK after having lived lawfully for more than 10 years. Therefore, I feel it would be disproportionate to reject my application for ILR on the basis of a single out of time application, which is disputed as well on the basis of above arguments.

Good Character

I would like to take this opportunity to mention that I am of a good character. I have never been in trouble with the law or otherwise during my entire stay in the UK. I would be grateful if in view of above you can grant me the ILR.

Thanking you in anticipation.


Yours faithfully,


Roger

I am very impressed, with the person who wrote this letter, I wish I had seen it much earlier, congrats on receiving your ILR.

Loveislovely