Can I apply for ILR ?

[NikitaM]

Hello Everyone,
I came to UK first time in September 2007 on Work permit, but I switched to Tier 1 on 13 August 2009. which expired on 13 August 2012.

I applied for extension before that but yesterday I got a letter from UKBA that it has been refused since I submitted my bank statements which was more than 30 days old.

Now I am eligible for ILR (being more than 5 years in UK), I wanted to ask can I apply for ILR now.

According to 245CD(i), The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

My 28 days will be considered from yesterday (when I received the letter) or from 13 August 20012 ?
My assumption was that it has to be considered from yesterday otherwise if 28 days are considered from 13 August, then I cant make any other application and have to leave the country.

Thanks in advance
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[NikitaM]

I have read somewhere that :

From 1 October 2012 any application made by an overstayer will be considered under the new overstayer rules, regardless of when that application was made, because the rules in force at the date of decision apply subject to any transitional provisions.

In calculating whether a person has overstayed by a period of 28 days or less the end point is the date of application, not the date of determination. Guidance to applicants and caseworkers to be amended to make this clear.

Could anyone tell me whether I am eligible to make any new application to UKBA or not ?

[geriatrix]

I believe you can, but

If you wish to take this step - to apply for settlement - suggest that you do it with professional assistance given the fact that your eligibility to settlement rests on section 3c leave and, in absence of any mention of section 3c in PBS settlement policy guidance, the caseworker dealing with your application may not be able to figure out if section 3c leave can be counted in the qualifying residential period and may refuse you because of his own ignorance.

Do note that an out of time application for settlement, if refused, will not get a right of appeal .... so may be the end of the road for you ... more the reason to do it right first time itself.

Best if you can submit the application (be it leave to remain for settlement or extension) within 10 days of receiving the refusal.