Application refusal

[FOX]

I just wanted to know whether it is true that after you get a refusal to vary leave(i.e If you had a valid visa applied in time to vary e.g student visa) then you automatically become unlawful as far as the immigration rules are concerned.Does this automatically 'stop the clock' in calculation of the 10 year rule i.e if the appeal was made in time?What does legal as opposed to lawful mean? do they have the same meaning?Plse help I'm confused.

[Jeff Albright]

They were planning to introduce a new rule, which would make your stay unlawful while awaiting a decision or an outcome of your appeal, if either or both of them are unsuccessful in the end. However, this is not in force yet.
If your eventual appeal is successful then all the time you were waiting for it counts as a legal residence and will be included in your 10 year qualifying period.
Legal=lawful

[FOX]

Thanx Jeff,
You have said that the period will be counted as lawful IF the appeal finally succeeds.My question is, I'm i lawful (legal) whilst awaiting for the outcome?

[Jeff Albright]

Your stay is legal as long as an appeal is pending.
If it is unsuccessful you will either choose to leave the UK within "n" number of days or appeal again. If you appeal again your stay is again legal whilst it is being considered. If your final appeal is successful all the time you were waiting will be taken for a legal residence. If it is unsuccessful it will still be treated as legal residence but you will have to leave the UK and your 10 year clock will be reset.

If you are within your current Leave to Remain whilst appealing you will continue to amass your days for the 10 year time qualifying period. If your current leave expires and you are still appealing, you will still be legal=lawful but if your final appeal fails, any time spent outside your current leave to remain will not qualify for the 10 year requirement. If, however, your final appeal is successful all this time will automatically be included into these 10 years.

Say you have spent 6 years in the UK, your FLR was refused on the 6th year and you appeal. Your appeal takes 2 years to decide and it is successful in the end. Then 6 + 2 = 8 qualifies for the 10 year rule. In 2 years time you simply send the SET(O) and get your ILR.
Say you have spent the same 6 years in the UK and your FLR was refused. You appeal and get dismissed. You appeal again and get dismissed again. You lodge a human rights claim as your final appeal and that is rejected too. You are required to leave the UK. By that point you have spent in the UK 11 years. Whilst you have always been lawful, in fact, in terms of the 10 year requirement, you have only amassed 6 years but not 11 so you cannot apply for the ILR. You leave the UK, successfully apply for the EC, come back and start all over again.
I hope it is clear now. Best of luck!

[FOX]

Thanx Jeff,
I fully understand your explanation but find it difficult to leave the UK after 10 years of 'lawful' residence i.e with dismissed appeals.The contribution i've made is great and have severed ties with country of origin.Don't you think that it would be rediculus if for example i applied using form (SETO) for ILR and not granted even outside the immigration rules?

[Jeff Albright]

The IND rarely uses "common sense" when considering applications. Furthermore, the "common sense" does not apply to much of the UK legislation including the immigration rules.
Therefore, you need to explore the existing rules other laws that make them work for you.
One of the things you need to do is to consult an expert immigration lawyer to obtain advice on what provisions under the Rules and outside the Rules may be available to you in order to make an application for further leave to remain basing on the length of your residence in the UK. The intelligent approach and an application outside the rules that takes into account the length of your residency, your ties with the UK, your age, your circumstances, etc. may be successful.

[FOX]

Hi Jeff,
I came across the following info. regarding making an application while an appeal is pending.It seems that i was entitled to make ILR 10 year rule in the old instruction because my appeal was still pending and hence still 'lawful'.My lawyer made a fresh application based on length of residence and article 8 and it has been 13 months with no replies from HO.Have a look at this:
IDI Sep/06 CH1 SECT5 – SECTIONS 3C AND 3D OF THE IMMIGRATION ACT 1971 (AS AMENDED)
The 2002 Act further amended Section 3C as described in this instruction.
11.2 Decisions to curtail or revoke leave to remain
Where a decision to curtail or revoke leave to remain was made before 31 August 2006 the decision did not take effect while an appeal could be brought or was pending by operation of section 82(3) of the Nationality, Immigration and Asylum Act 2002. This is of similar effect to leave being statutorily extended under section 3D. However, under section 82(3) as a decision did not take effect it was possible for extant leave to expire while an appeal was pending. Also, where a decision did not take effect because of section 82(3),it was possible to make an application to vary leave to remain while an appeal was pending.

[Jeff Albright]

Yes, your solicitor seems to have made the correct application. No response for 16 months is not surprising.
However, 11.2 applies to someone against who "a decision was made to curtail or revoke leave to remain", which is certainly not the case in your matter. So you appear to be using the reference to the section that does not apply to you.

[FOX]

Hi John,
I came across the new IDI policy instruction on long residence and although i'm not entitled to make the 10 year application ,i think my time spent on appeal will count towards the 10 year Rule.Please read this and comment.

2.2. LAWFUL RESIDENCE
2.2.1 Time spent awaiting the outcome (or appealing against the refusal) of an in-time
application, or appealing against a decision to curtail leave.
Sections 3C and 3D of the Immigration Act 1971 both extend individuals’ leave in
certain circumstances.
Section 3C extends leave where a person with limited leave to enter or remain makes
an in-time application, but their leave expires before a decision on that application is
reached. Where a person has 3C leave, and his/her application is refused, 3C leave
continues until appeal rights are exhausted.
Section 3D of the 1971 Act applies when we curtail somebody’s leave. The curtailed
leave is replaced with 3D leave, which continues until appeal rights are exhausted.
Please see Chapter 1 Section 5 of the IDIs for further information about 3C and
3D leave.
Both 3C and 3D leave count as “existing leave to enter or remain in the UKâ€

[FOX]

Your stay is legal as long as an appeal is pending.
If it is unsuccessful you will either choose to leave the UK within "n" number of days or appeal again. If you appeal again your stay is again legal whilst it is being considered. If your final appeal is successful all the time you were waiting will be taken for a legal residence. If it is unsuccessful it will still be treated as legal residence but you will have to leave the UK and your 10 year clock will be reset.

If you are within your current Leave to Remain whilst appealing you will continue to amass your days for the 10 year time qualifying period. If your current leave expires and you are still appealing, you will still be legal=lawful but if your final appeal fails, any time spent outside your current leave to remain will not qualify for the 10 year requirement. If, however, your final appeal is successful all this time will automatically be included into these 10 years.

Say you have spent 6 years in the UK, your FLR was refused on the 6th year and you appeal. Your appeal takes 2 years to decide and it is successful in the end. Then 6 + 2 = 8 qualifies for the 10 year rule. In 2 years time you simply send the SET(O) and get your ILR.
Say you have spent the same 6 years in the UK and your FLR was refused. You appeal and get dismissed. You appeal again and get dismissed again. You lodge a human rights claim as your final appeal and that is rejected too. You are required to leave the UK. By that point you have spent in the UK 11 years. Whilst you have always been lawful, in fact, in terms of the 10 year requirement, you have only amassed 6 years but not 11 so you cannot apply for the ILR. You leave the UK, successfully apply for the EC, come back and start all over again.
I hope it is clear now. Best of luck!

Hi Jeff,
I came across the new IDI policy instruction on long residence and although i'm not entitled to make the 10 year application ,i think my time spent on appeal will count towards the 10 year Rule.Please read this and comment.

2.2. LAWFUL RESIDENCE
2.2.1 Time spent awaiting the outcome (or appealing against the refusal) of an in-time
application, or appealing against a decision to curtail leave.
Sections 3C and 3D of the Immigration Act 1971 both extend individuals’ leave in
certain circumstances.
Section 3C extends leave where a person with limited leave to enter or remain makes
an in-time application, but their leave expires before a decision on that application is
reached. Where a person has 3C leave, and his/her application is refused, 3C leave
continues until appeal rights are exhausted.
Section 3D of the 1971 Act applies when we curtail somebody’s leave. The curtailed
leave is replaced with 3D leave, which continues until appeal rights are exhausted.
Please see Chapter 1 Section 5 of the IDIs for further information about 3C and
3D leave.
Both 3C and 3D leave count as “existing leave to enter or remain in the UKâ€

[Jeff Albright]

Just to let you know that i have got your email and seen your post. I will reply when I get more time. It has been pretty hectic over here...

[FOX]

Just to let you know that i have got your email and seen your post. I will reply when I get more time. It has been pretty hectic over here...

Jeff,
Please reply to the above posting.