"visa refused then reapplied and get visa" for IL

[jaberdene]

Hi
Im going to apply ILR based on long residency 10 year rule this September. one of my extension application was supposed to finish on 14-03-2005 so I submitted student application on 11-03-2005 which was in time. And it was refused on 07-04-2005 due to applying short course for more than 2 years. Because of this reason the refusal letter said my right to appeal this decision was limited. The letter didnt mention anything about time limit to reapply or appeal but asked me to inform them of any reason why I think I shud be allowed to stay here. I didnt appeal, but on 12-04-2005 I submitted 2nd application with my reason to stay and changing course length up to 2 years , then finally got 2 years extension on 20-04-2005.

Is this refusal affect my future ILR application or not?
Ive read tons of thread and info but still struggling to find answer. In my case did 3C leave end on the day of the refusal decision or after 10 days from that date?

any advice on it will be very appreciated ,

many thanks
JE

[15Jan]

As far as I understand Section 3C, in your case, it expired on 07/04/05.

The silver lining is for long residence, you are allowed a single GAP of not more than 10 days, so I think you should be OK.

The imp. bit here is to consult a good solicitor and write a good cover letter, quoting the relevant laws/guidance so that CW won't reject your application.

[quantum1]

Hi
Im going to apply ILR based on long residency 10 year rule this September. one of my extension application was supposed to finish on 14-03-2005 so I submitted student application on 11-03-2005 which was in time. And it was refused on 07-04-2005 due to applying short course for more than 2 years. Because if this reason the refusal letter said my right to appeal this decision was limited. The letter didnt mention anything about time limit to reapply or appeal but asked me to inform them of any reason why I think I shud be allowed to stay here. I didnt appeal, but on 12-04-2005 I submitted 2nd application with my reason to stay and changing course length up to 2 years , then finally got 2 years extension on 20-04-2005.

Is this refusal affect my future ILR application or not?
Ive read tons of thread and info but still struggling to find answer. In my case did 3C leave end on the day of the refusal decision or after 10 days from that date?

any advice on it will be very appreciated ,

many thanks
JE

I would advise a solicitor. Long Residency does allow for discretion on a short gap of unspecified duration. Discretion is shown on the gap, if it was the result of an out of time application of 10 days or less. I am not sure if out of time applications are counted from date of expiry of visa or from day section 3 leave ceases. A solicitor would make good arguments to support your case.

[jaberdene]

As far as I understand Section 3C, in your case, it expired on 07/04/05.

The silver lining is for long residence, you are allowed a single GAP of not more than 10 days, so I think you should be OK.

The imp. bit here is to consult a good solicitor and write a good cover letter, quoting the relevant laws/guidance so that CW won't reject your application.

thanks for your advise

[jaberdene]

Hi
Im going to apply ILR based on long residency 10 year rule this September. one of my extension application was supposed to finish on 14-03-2005 so I submitted student application on 11-03-2005 which was in time. And it was refused on 07-04-2005 due to applying short course for more than 2 years. Because if this reason the refusal letter said my right to appeal this decision was limited. The letter didnt mention anything about time limit to reapply or appeal but asked me to inform them of any reason why I think I shud be allowed to stay here. I didnt appeal, but on 12-04-2005 I submitted 2nd application with my reason to stay and changing course length up to 2 years , then finally got 2 years extension on 20-04-2005.

Is this refusal affect my future ILR application or not?
Ive read tons of thread and info but still struggling to find answer. In my case did 3C leave end on the day of the refusal decision or after 10 days from that date?

any advice on it will be very appreciated ,

many thanks
JE

I would advise a solicitor. Long Residency does allow for discretion on a short gap of unspecified duration. Discretion is shown on the gap, if it was the result of an out of time application of 10 days or less. I am not sure if out of time applications are counted from date of expiry of visa or from day section 3 leave ceases. A solicitor would make good arguments to support your case.

thanks for your reply
I have exactly same thought as you.

[15Jan]

Hi
Im going to apply ILR based on long residency 10 year rule this September. one of my extension application was supposed to finish on 14-03-2005 so I submitted student application on 11-03-2005 which was in time. And it was refused on 07-04-2005 due to applying short course for more than 2 years. Because if this reason the refusal letter said my right to appeal this decision was limited. The letter didnt mention anything about time limit to reapply or appeal but asked me to inform them of any reason why I think I shud be allowed to stay here. I didnt appeal, but on 12-04-2005 I submitted 2nd application with my reason to stay and changing course length up to 2 years , then finally got 2 years extension on 20-04-2005.

Is this refusal affect my future ILR application or not?
Ive read tons of thread and info but still struggling to find answer. In my case did 3C leave end on the day of the refusal decision or after 10 days from that date?

any advice on it will be very appreciated ,

many thanks
JE

I am not sure if out of time applications are counted from date of expiry of visa or from day section 3 leave ceases.

As far as I can understand, Section 3C leave starts from the date of expiry and ceases on the date of approval, so, if we take the same logic forward, in case of rejection, Section 3C would cease on the date of rejection(provided there is no appeal).

Other's are most welcome to add on this.

[jaberdene]

thanks all,

presumably there are many people has this kind of similar issues in this forum as well as in another forum. so we should find the correct answer here.
And I am trying to answer it myself. It might be correct or might be WRONG. please judge on it

as for my case I didnt appeal, so my 3C leave ended on the date of refusal decision which is 07/04/2005. I submitted 2nd application on 12/04/2005 and It means I overstayed 5 days since my 3C leave ended. The Immigration Rule says (see the link below) overstay starts from the 3C leave end date if I have one. So, those 5 days overstay is 5 days gap in my 10 years. Also obviously out of time application is made due to the overstaying.

Taking everything into account I could say
1. Have I got a short gap? -> YES from 07/04/2005 to 12/04/2005.
2. is the gap is created through making one single previous
application out of time? -> YES.
3. is the gap less than 10 days? -> YES (5 days)

therefore I think this one single gap can be used as discretion in long residence ILR application (see link below)

so please comment on this pleeeeese.


3C description.( from long residence guidance, page 19)
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
Section 3C extends leave when a person with leave to enter or remain makes an in-time
application, that is one made before their leave expires, but their leave expires before a
decision on that application is reached. If a person has 3C leave, and their application is
refused, 3C leave continues until their appeal rights are exhausted. Section 3C only applies
to in-time applications.


Single gap in lawful residence (from long residence guidance, page 15)
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
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.

Immigration Rules described overstay as follow
http://www.ukba.homeoffice.gov.uk/polic ... roduction/

"Overstayed" or "Overstaying" means the applicant has stayed in the UK beyond the latest of:

(i) the time limit attached to the last period of leave granted, or

(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971,

[cs95tdg]

You may want to keep an eye on the following post which is around a similar topic. The OP there may post his/her findings after getting legal advice to determine the best course of action.

http://www.immigrationboards.com/viewto ... highlight=

http://www.immigrationboards.com/viewto ... ht=#655892

[jaberdene]

As far as I can understand, Section 3C leave starts from the date of expiry and ceases on the date of approval, so, if we take the same logic forward, in case of rejection, Section 3C would cease on the date of rejection(provided there is no appeal).

Other's are most welcome to add on this.

3C continues until the day on which decision is made. Decision could be approval or refusal. hope it helps you out.

click link below to see the pharagraph underneath (Page 2 of the document)
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

3C automatically extends the leave of a person who has made an application for
further leave to remain during a period of extant leave. Technically, the leave is
"treated as continuing".

Section 3C then prevents such an applicant becoming
an overstayer during the period in which their application for a variation of leave
remains UNDECIDED and, thereafter, while an appeal against any refusal could be
brought or is pending.

2. FIRST APPLICATIONS FOR FURTHER LEAVE TO REMAIN
2.1. Key points
• Section 3C only applies where an application for extension of stay is made before the
expiry of the person's leave and the leave expires before the application for variation
has been decided;
• Its effect is to extend the leave and any conditions attached to it while the application
is neither decided or withdrawn, while an in-country appeal could be brought, or,
while an appeal is pending;

[jaberdene]

You may want to keep an eye on the following post which is around a similar topic. The OP there may post his/her findings after getting legal advice to determine the best course of action.

http://www.immigrationboards.com/viewto ... highlight=

http://www.immigrationboards.com/viewto ... ht=#655892

thanks

[quantum1]

thanks all,

presumably there are many people has this kind of similar issues in this forum as well as in another forum. so we should find the correct answer here.
And I am trying to answer it myself. It might be correct or might be WRONG. please judge on it

as for my case I didnt appeal, so my 3C leave ended on the date of refusal decision which is 07/04/2005. I submitted 2nd application on 12/04/2005 and It means I overstayed 5 days since my 3C leave ended. The Immigration Rule says (see the link below) overstay starts from the 3C leave end date if I have one. So, those 5 days overstay is 5 days gap in my 10 years. Also obviously out of time application is made due to the overstaying.

Taking everything into account I could say
1. Have I got a short gap? -> YES from 07/04/2005 to 12/04/2005.
2. is the gap is created through making one single previous
application out of time? -> YES.
3. is the gap less than 10 days? -> YES (5 days)

therefore I think this one single gap can be used as discretion in long residence ILR application (see link below)

so please comment on this pleeeeese.

What I have been trying to say is that, the length of the gap is not really relevant according to the rules. The gap in your leave is thirteen days, ie you were an overstayer and did not have leave from the 7th to the 20th of April. But this is not important in the construction of the rules. The discretion is offered due to an out of time application made within 10 days.

Taking everything into account you could say
1. Have You got a short gap? -> YES from 07/04/2005 to 20/04/2005.
2. is the gap is created through making one single previous
application out of time? -> Maybe (Might have been two applications)
3. is the gap less than 10 days? -> No (12 days) But irrelevant
4. Is the out of time application within 10 days? -> Maybe

Out of time is not really defined, and this is the issue. Does it mean making an application beyond the latest of:

(i) the time limit attached to the last period of leave granted

(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971

Does it refer to (i) and (ii) or to (i) alone.

There are valid reasons for both arguments. Unfortunately I have not yet come against case law where the term has been well defined. I strongly recommend you speak with a solicitor.

[jaberdene]

What I have been trying to say is that, the length of the gap is not really relevant according to the rules. The gap in your leave is thirteen days, ie you were an overstayer and did not have leave from the 7th to the 20th of April. But this is not important in the construction of the rules. The discretion is offered due to an out of time application made within 10 days.

Taking everything into account you could say
1. Have You got a short gap? -> YES from 07/04/2005 to 20/04/2005.
2. is the gap is created through making one single previous
application out of time? -> Maybe (Might have been two applications)
3. is the gap less than 10 days? -> No (12 days) But irrelevant
4. Is the out of time application within 10 days? -> Maybe

Out of time is not really defined, and this is the issue. Does it mean making an application beyond the latest of:

(i) the time limit attached to the last period of leave granted

(ii) beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971

Does it refer to (i) and (ii) or to (i) alone.

There are valid reasons for both arguments. Unfortunately I have not yet come against case law where the term has been well defined. I strongly recommend you speak with a solicitor.

Thanks for your comment, very appreciated that

(after your comment) I agree with u that my gap was 13 days. But the gap was made through my last application which is out of time. But I managed to make that application within 10 days after my 3C leave ended. Also my first application was in time therefore it didnt make a gap.

Does it refer to (i) and (ii) or to (i) alone.

On the OVERSTAY description it is (i) OR (ii) rather than {(i) and (ii)}, that means it refers to (ii) alone.

Also based on paragraph below, my first original leave can be treated as continuing until the refusal date.

It all may say that only my second out of time application caused the 13 days gap. Still NOT SURE

what you think guys

click link below to see the pharagraph underneath (Page 2 of the document)
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

3C automatically extends the leave of a person who has made an application for
further leave to remain during a period of extant leave. Technically, the leave is
"treated as continuing".

Finally, I will definitely get a legal advice anyway. Just trying to understand and find a solution myself. still get legal advice thats for sure.