need advice

JSR · Post by **JSR** » Sat Jun 02, 2012 8:56 pm

I m on tier 1 visa now . after 3 month I will be applying for ILR under the long stay catagoery. my question is .. one year before when i applied for my tier 1 visa they refused me first time . on refuse letter they gave me two option one was I could appeal against their decission or I could make a fresh application within ten days...I made fresh application within 4 or 5 days and I got the tier one visa for two year. I question is ,am i overystayer those 5 days they gave me on my refuseal letter . is it going to affect on my next application ILR under the ten years catagoery .... please let me know ... I am a bit tense at the moment ....

cs95tdg · Post by **cs95tdg** » Sat Jun 02, 2012 9:10 pm

1) What immigration category were you in the UK before your first Tier 1 application, and what was the expiry date of your leave to remain at the time?

2) What date did you submit your subsequent Tier 1 application after the initial Tier 1 rejection?

JSR · Post by **JSR** » Sat Jun 02, 2012 9:33 pm

ok I was in tier 1 post study visa .my post study visa finished on .12 february 09 and I submitted tier 1 general application on 9 feb 09 .. which was on time .. they rufused me on the basis of my previous earning and refused me on 30 march 09 . they gave me 10 days to appeal or make a new application . I made a fresh application on 03 april 09 which was within 4 days .... My question is that 10 days they gave me was liegal. pls let me know

cs95tdg · Post by **cs95tdg** » Sat Jun 02, 2012 10:16 pm

As your original leave to remain expired on 12/02/2009 and your second Tier 1 application was submitted on 02/04/2009, the gap would appear to be more than the 10 days you mention. My understanding is that if you had appealed the original Tier 1 rejection, then you would have been protected by Section 3C of the Immigration Act 1971 as the initial Tier 1 application was submitted in-time (09/02/2009).

But as it was a new application you submitted the second time & not an appeal my understanding is that you would have broken your continuous lawful residency.

I will however leave this for someone else to confirm or correct if my interpretation of the rules is incorrect.

Either way you may find the following guidance helpful & informative:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Post by **vinny** » Sun Jun 03, 2012 1:38 am

You may be able to argue that leave was extended by Section 3C/3D, until it lapsed (8).

Post by **geriatrix** » Sun Jun 03, 2012 2:06 am

vinny wrote:You may be able to argue that leave was extended by Section 3C/3D, until it lapsed (8).

But both 3C(4) and 3D(4) restrict an applicant from making a new application (?)

Post by **vinny** » Sun Jun 03, 2012 2:07 am

Yes. However, 3C/3D lapses after 10 days, if no appeal is made?

Post by **geriatrix** » Sun Jun 03, 2012 2:31 am

So, if Section 3C/3D does not allow a new application to be made, then the new application submitted on 03-04-09 cannot be considered as an in-time application.

The only way UKBA could have assessed his application was to treat it as an out-of-time application. And because he was under Section 3C from 12-02-09 to 10-04-09, the only way an application submitted on 03-04-09 would be considered out-of-time is if his leave was deemed to have expired on 12-02-09 itself. Under this premise, the application was more than 10 days out-of-time.

On the other hand, had he submitted a new application within 10 working days from 10-04-09 (the day section 3c leave lapsed), he could have argued that the out-of-time application was within the 10 day limit (as allowed under long residence) - exactly as you have suggested.

Post by **vinny** » Sun Jun 03, 2012 2:44 am

Or they may have deemed that the new application was made immediately after Section 3C/3D had lapsed? I don't think that they can ignore that Section 3C/3D was in force at some point, as a valid in-time application had initially been made?

Post by **geriatrix** » Sun Jun 03, 2012 2:55 am

Possibly yes, if the date of application, as defined in 34G is ignored.
My arguments were on the basis that there is no discretion regarding 34G.

JSR · Post by **JSR** » Sun Jun 03, 2012 9:59 pm

but My argument is I made a in time valid application and I was legally staying untill 30 march they sent me refusal. from 30 march to 9 april I m legal to stay . I didnot want to make new application on my own they gave me choice either appeal or make a new application . it was on their letter . they state that on the refusal letter ... I kept the letter in safe for future reference . if they would have treat my 03-04-09 application as a new application they would have rejected me because My leave to remain finished on 12-02. i don't know why they gave me option to make a new application . if they would not give me the option I wouldn't make a new application .. I would have appealed,,if I wouldn't have choice . why the treat me speciallly . `just let you know they refused me for a very little silly thing ... they could have contracted me rather then refuse... on letter they said they very satisfy with my document ..

Post by **geriatrix** » Tue Jun 05, 2012 3:46 am

Making an out-of-time application under PBS is possible. And the immigration rules allow out-of-time PBS application to be assessed and approved if the applicant meets the PBS requirements. But, approval of an out-of-time application does not mean that any time spent in the UK as an overstayer becomes legal.

That UKBA suggested then that you could make a new application did not necessarily mean that any such application would be treated as "in-time". It seems that you acted on that assumption.

quantum1 · Post by **quantum1** » Wed Jun 06, 2012 1:37 pm

sushdmehta wrote:So, if Section 3C/3D does not allow a new application to be made, then the new application submitted on 03-04-09 cannot be considered as an in-time application.

The only way UKBA could have assessed his application was to treat it as an out-of-time application. And because he was under Section 3C from 12-02-09 to 10-04-09, the only way an application submitted on 03-04-09 would be considered out-of-time is if his leave was deemed to have expired on 12-02-09 itself. Under this premise, the application was more than 10 days out-of-time.

On the other hand, had he submitted a new application within 10 working days from 10-04-09 (the day section 3c leave lapsed), he could have argued that the out-of-time application was within the 10 day limit (as allowed under long residence) - exactly as you have suggested.

It would depend on what is actually meant by the phrase "in time application". Does it mean: with valid leave, or it means: before the time stated on a visa endorsement has passed. I would suggest it means the latter thereby making "in time" distinct from "with valid leave".

The reason is that it is not in anyway possible for someone to make an "in time" application after the date on the endorsement has passed. Any applications made after this date and considered to be "in time" will always have "raised by" dates prior to the expiry date of the endorsement and are treated as continuations of previous applications or variations of existing applications. The other fact is that the phrase makes reference to a specific deadline. They also use this specific phrase instead of "with current leave". They are IMHO distinct.

The definition of "out of time" is to be understood to be opposed to that of "in time", meaning "not in time". I therefore do not think section 3C should be relevant in considering whether an application is raised "in time" or "out of time". This makes sense from an operational perspective, in that the only dates UKBA has ready access to are the dates the application is sent and the expiry dates endorsed in the passport. It should be noted that the discretion reffered to in the guidance is for applications made within 10 days "out of time" instead of "after cessation of leave".

I do not know of any judgements were the definitions have been clearly defined therefore this is just my opinion. I do not know of other people who have been is such a position and have either been successful or unsuccessful in their applications.

ashiec · Post by **ashiec** » Sat Jul 14, 2012 5:28 pm

can a professional please confirm that the 10-day allowance given to this gentleman (author of this topic) was considered LEGAL stay and therefore it wont affect his long residency!?

I AM IN THE SAME SORT OF POSITION MYSELF and i need to know?

Maliksabour · Post by **Maliksabour** » Sun Jul 15, 2012 2:06 pm

JSR wrote:I m on tier 1 visa now . after 3 month I will be applying for ILR under the long stay catagoery. my question is .. one year before when i applied for my tier 1 visa they refused me first time . on refuse letter they gave me two option one was I could appeal against their decission or I could make a fresh application within ten days...I made fresh application within 4 or 5 days and I got the tier one visa for two year. I question is ,am i overystayer those 5 days they gave me on my refuseal letter . is it going to affect on my next application ILR under the ten years catagoery .... please let me know ... I am a bit tense at the moment ....

HI, I am in same kind of situation
I have gap of one months because of invalid application,
Would you please share your experience or advice you have taken form any Lawyer regarding your application,

Regards
Malik

prova · Post by **prova** » Sun Aug 12, 2012 4:14 am

i have same problem too . could anyone help me with exact information please .

Maliksabour · Post by **Maliksabour** » Wed May 01, 2013 10:25 pm

Today I have received the approved application of ILR from HO with family

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