am i eligible 10 year stay with Gap

[sukhisin]

i have one query regarding my immigration history ( 10 year legal stay).

I came to UK in feb 2003 , i still have valid visa till march 2015( Tier 1 entrepreneur)
All except 1 applications for extension are in time, and all are granted,

I have problem with one application for extension which was out of time and messed up .
in 04Dec 2008 i have applied visa for post study work in time ( visa was valid till 31 dec 2008),
In jan28 2009 i have withdrawn my application from home office.
And reapply on 05Feb2009 for student visa. but application was refused on 05Nov 2009.
i did not get right of appeal, UKBA said its out of time application,i went for JUDICIAL Review
on 18NOV2009, then HOME Office accepted to reconsider my application on 15Jan2010( For the application for student visa made on dated 05feb2009)
Home Office granted visa on 24Jan2010 till 30 Nov 2010( For the application for student visa made on dated 05feb2009)

Now my question If i apply for settlement next year after completing 10 years
Am i eligible ?
like i made above mentioned application out time more 10 days , was refused and no right of appeal ,
is this time when i withdrawn application will be legal stay till JAN28, 2009,

I will be very thankful to you, if you let me know Am i eligible for 10 year legal stay.
and if any or solution possible
Thanks a lot

[geriatrix]

Did UKBA ask you to fill up a new application form and pay the fees again, when they agreed to reconsider your application subsequent to the notice of pre action protocol.

If not, then I believe you do meet the requirements.

It all depends on from when UKBA considers you an overstayer - from 01-Jan-09 or 28-Jan-09.

Technically, you had extant leave (under section 3C) until 28-Jan-09 (the day you withdrew your application) and an application made on 05-Feb is less than 10 days out-of-time.

[sukhisin]

Did UKBA ask you to fill up a new application form and pay the fees again, when they agreed to reconsider your application subsequent to the notice of pre action protocol.

If not, then I believe you do meet the requirements.

no i did not filled any new application, on letter from judicial review said that they will reconsider application made on DATED 05FEB2009, i got sar report
it saying application date 05feb2009 and visa granted on 24 JAN2010.
thanks a lot for your time and information

[geriatrix]

I think you should be okay.

[sukhisin]

I think you should be okay.

After that visa i have applied 3 times visa application ( all in time and between legal valid leave) and none of them i filled the section which saying"
are you ever overstay" and never they either told me i am overstayed on
particular time.

any more advice ? any other information you like to give me

Thanks a lot again for your time and quick reply
Thanks again

[Greenie]

Sushdmehta i would be interested to know why you think the op will be ok. Do you think that by agreeing to reconsider the application they necessarily accepted that it was in time? I am not sure how this can be the case if the op withdrew his application and then applied after his leave expired.

Sukhisin on what basis did the ukba originally refuse the student application and on what basis did they agree to reconsider?

[geriatrix]

My opinion is based on the understanding that OP had section 3C leave until 28-Jan-09 and made an out-of-time application on 05-Feb-09 (which is within 10 working days from 28-Jan-09).

That he was granted Tier 4 leave (and not discretionary leave or leave outside the immigration rules) on the basis of the very application that he submitted on 05-Feb-09. He wasn't asked to make a new application or pay again.

But yes, if UKBA argues that he has been an overstayer since 01-Jan-09, then the above will not apply.

It all depends on from when UKBA considers you an overstayer - from 01-Jan-09 or 28-Jan-09.

[Greenie]

Sorry yes i overlooked that he applied within 10 days of withdrawing the application. I would agree that he had 3c leave until 28 Jan 09.

[sukhisin]

Sushdmehta i would be interested to know why you think the op will be ok. Do you think that by agreeing to reconsider the application they necessarily accepted that it was in time? I am not sure how this can be the case if the op withdrew his application and then applied after his leave expired.

Sukhisin on what basis did the ukba originally refuse the student application and on what basis did they agree to reconsider?

hi, they refused visa saying that the college was not on DIUS Register on 05NOV2009, as i read on my SAR report, after i filled JR , then after that
they said college is now a Bona Fide Instituation, so JR will not stand and they
will reconsidered the case." the applicant was refused for non-bona fide college. however the college is now considered a GREEN college" this was also written in SAR Report (GCID- Case record sheet)

i have SAR Report (GCID- Case record sheet) which stating that
application date 05FEb2009, outcome date 24JAN2010, expiry date visa NOV2010, case outcome GRANT L.T.R.

i will be very thankful for your advice, if you need more information, please let me know

[kya1104]

Hi, Im quite new to this forum, but leaving this message just in case it could be of little help. I cant disclose too much of my current situation, but similar to urs. Ive got a month gap in my 12 year stay and still struggle with applying for ILR (the gap occurred while appyling for visas and I was a dependent).

to ur question, i dont think it does matter for you being able to get visas after this whole issue from 2008 to 2009. Ive got two different visas after my gap and my solicitor tells me that issueing visas and granting ILR is whole different matter. However, in my case, it seems that my gap, which actually means illegal stay of one month, is in their system, as in one occassion, immigration officer questioned me of this gap at the airport.

In my opinion, I would advise you to go with solicitor, as Im in touch with mine all the time. Hope any of my comments would be helpful, as I know how desperate this can be.

[geriatrix]

There is a difference between a "6 week gap" and a "gap less than 10 working days". The former is not allowed under long residence but the latter is, subject to the condition that there is just one such gap.

[geriatrix]

sukhisin,

Do you remember how you requested for withdrawal of your application (phone / post/ email etc.)?
If by post, was it on 28-Jan-09 or before?
If before, do you know what date?

[sukhisin]

sukhisin,

Do you remember how you requested for withdrawal of your application (phone / post/ email etc.)?
If by post, was it on 28-Jan-09 or before?
If before, do you know what date?

Thanks for your reply.
The letter i have received from UKBA for withdrawn application dated 28JAN2009,

i have applied for withdrawal by post more than 10 days ago,
in SAR immigration history report stated that application withdrawn on 28.01.2009, date of request received 27/01/2009.

I have also SAR (GCID Case Record Sheet)
which stated that application made 04DEc2008
case type T1 HS-post study-LTR
case outcome withdrawn
outcome date 28JAN2009

Please advice me with your experience, if you need more information let me know, thanks again.

so which date they will consider, the date UKBA withdrawn or date i have posted my request for withdrawal of application

[geriatrix]

i have applied for withdrawal by post more than 10 days ago,

That could be a potential problem if UKBA retained proof of posting (the envelope you posted the withdrawal request in). As per my calculation, date of posting before 23-Jan-09 makes you ineligible. If so, this could be a potential problem if UKBA retained proof of posting (the envelope you posted the withdrawal request in).

Where an applicant who is not travelling makes a clear, unambiguous request for consideration of the application to be discontinued, section 3C leave will terminate on withdrawal of the application. If such a request is ambiguous, clarification that the application is being withdrawn should be sought. It should be accepted only once a clear, unambiguous request has been made in writing. Where such notification is given by post, the date of postage is when the application is withdrawn and section 3C leave ends on that date.

[sukhisin]

The letter i have received from UKBA for withdrawn application dated 28JAN2009,

i have applied for withdrawal by post more than 10 days ago,
in SAR immigration history report stated that application withdrawn on 28.01.2009, date of request received 27/01/2009.

I have also SAR (GCID Case Record Sheet)
which stated that application made 04DEc2008
case type T1 HS-post study-LTR
case outcome withdrawn
outcome date 28JAN2009

Please advice me with your experience, if you need more information let me know, thanks again.

so which date they will consider, the date UKBA withdrawn or date i have posted my request for withdrawal of application[/quote]

[geriatrix]

The policy (and perhaps the relevant law as well) states that the date of posting of withdrawal request is the date of withdrawal. Not the date of receipt of such request.

The question is whether UKBA has retained the proof of posting. If they have, then they will be able to prove that your out-of-time application was not within the 10 working days period (that the concession allows). If they don't have the evidence, then you'll be fine.

SAR report refers to "date of receipt" which becomes irrelevant if they have the proof of posting. But if they do not have the proof of posting, then they will be unable to claim or prove that you posted your letter before 23-Jan-09.

Should we assume that since your SAR report does not mention anything about the date of posting of withdrawal of application it essentially means that UKBA doe not have any of evidence of it? I don't know.

[sukhisin]

The policy (and perhaps the relevant law as well) states that the date of posting of withdrawal request is the date of withdrawal. Not the date of receipt of such request.

The question is whether UKBA has retained the proof of posting. If they have, then they will be able to prove that your out-of-time application was not within the 10 working days period (that the concession allows). If they don't have the evidence, then you'll be fine.

SAR report refers to "date of receipt" which becomes irrelevant if they have the proof of posting. But if they do not have the proof of posting, then they will be unable to claim or prove that you posted your letter before 23-Jan-09.

Should we assume that since your SAR report does not mention anything about the date of posting of withdrawal of application it essentially means that UKBA doe not have any of evidence of it? I don't know.

I have checked the SAR , i found the copy of letter that i have sent to them for withdrawal application dated 14 jan2009,the letter sent to UKBA Durham address, then i think they forward to Sheffield UKBA,
so it make more than 10 days gap? or still i will be ok?
like i said the letter was dated 14jan2009 , i must be posted it on 15 jan2009 for withdrawal .

can they not use Discretion for breaks in lawful residence in this case?
like it written in guidance
Discretion for breaks in lawful residence

It may be appropriate to use discretion if an applicant:
 has a single short gap in lawful residence through making one single previous application out of time by no more than 10 calendar days, and
 meets all the other requirements for lawful residence.
You can use your judgement in cases where there may be exceptional reasons why a single application was made more than 10 days out of time. For example, exceptional reasons can be used for cases where there is:
 a postal strike
 hospitalisation, or
 an administrative error made by the UK Border Agency.


i will be very thankful for your advice and suggestion


sushdmehta any advice or suggestion please

[sukhisin]

The policy (and perhaps the relevant law as well) states that the date of posting of withdrawal request is the date of withdrawal. Not the date of receipt of such request.

The question is whether UKBA has retained the proof of posting. If they have, then they will be able to prove that your out-of-time application was not within the 10 working days period (that the concession allows). If they don't have the evidence, then you'll be fine.

SAR report refers to "date of receipt" which becomes irrelevant if they have the proof of posting. But if they do not have the proof of posting, then they will be unable to claim or prove that you posted your letter before 23-Jan-09.

Should we assume that since your SAR report does not mention anything about the date of posting of withdrawal of application it essentially means that UKBA doe not have any of evidence of it? I don't know.

I have checked the SAR , i found the copy of letter that i have sent to them for withdrawal application dated 14 jan2009,the letter sent to UKBA Durham address, then i think they forward to Sheffield UKBA,
so it make more than 10 days gap? or still i will be ok?
like i said the letter was dated 14jan2009 , i must be posted it on 15 jan2009 for withdrawal .

can they not use Discretion for breaks in lawful residence in this case?
like it written in guidance
Discretion for breaks in lawful residence

It may be appropriate to use discretion if an applicant:
 has a single short gap in lawful residence through making one single previous application out of time by no more than 10 calendar days, and
 meets all the other requirements for lawful residence.
You can use your judgement in cases where there may be exceptional reasons why a single application was made more than 10 days out of time. For example, exceptional reasons can be used for cases where there is:
 a postal strike
 hospitalisation, or
 an administrative error made by the UK Border Agency.


i will be very thankful for your advice and suggestion


sushdmehta any advice or suggestion please

sushdmehta any advice or suggestion please

[quantum1]

I think you should be fine. As you say the outcome date for your withdrawal is 28 January I would assume that this is the date they consider the application withdrawn and your section 3C leave ended. Your gap in lawful residence is quite large though, at almost a year. This might cause issues. I suggest you consult with a solicitor before your application.