Has my continuous residence been broken?

[Shogun75]

Can anyone or guru help on the following?

On 28/06/2006, I submitted FLR(S) in person at a PEO - This was rejected because University admission letter was more than 1 month old.

My visa expired on 30/06/2006.

On the 19/07/2006 I sent a postal application with a fresh University admission letter.

On the 03/08/2006, the HO returned my application because they couldn't take the payment and gave me 28 days to resubmit it otherwise the application will be invalidated. I resent the file with front & back copy of my Credit Card and the payment was collected on the 07/08/2006.

On the 24/08/2006, the HO returned my application again, because they could not read "Start & End Day" of my University Course on my supporting documents (a lot of them!!). They gave me 28 days to resubmit it otherwise the application will be invalidated. I resent the file on the 25/08/2006 pointing out the reference of my University letter "Start & End Day". The University is DFES recognised and within Top 20 of UK League Table.

The HO granted student visa on the 10/10/2006. The Home Office archived obtained through SAR shows a copy of FLR(S) form received by them on the 20/07/2006, VALIDATED by charging team on 03/08/2006 and VALIDATED by Caseworker on 24/08/2006.

I never received any letter at any moment during the application process saying my application was INVALID. There is also no mention of INVALID anywhere on the copy of the archived FLR(S) form and no fees were ever refunded.

Now the HO is refusing my 10-years ILR because they said I've got a single gap between the 30/06/2006 and 10/10/2006. Is that correct? Has anyone experienced something like that? I submitted the 10 years ILR on 18/06/2013 as a variation of a Tier 1 (General) Appeal.

[sheraz7]

According to UKBA long residence guideline an application can be out of time up to 28 days and these 28 days even starts from the notice of invalidity but in relation to an in-timely made application. I think because you made application on 19/07/2006 which was out of time that is why they may not take into their consideration.

Out of time applications made on or after 9 July 2012 (page 21)

Applicants for an extension of stay or ILR must not have overstayed by more than 28 days on the date of application. The 28 day period of overstaying is calculated from the latest of the:
end of the last period of leave to enter or remain granted
 end of any extension of leave under sections 3C or 3D of the Immigration Act 1971, or
 the point that a migrant is deemed to have received a written notice of invalidity, in line with paragraph 34C or 34CA of the Immigration Rules, in relation to an in-time application for further leave to remain.

[Shogun75]

Thanks a lot Sheraz7,

This is really confusing!!
I did read that document as well, but the full chapter states:

Out of time applications made on or after 9 July 2012
Applicants for an extension of stay or ILR must not have overstayed by more than 28 days on the date of application. The 28 day period of overstaying is calculated from the latest of the:

 end of the last period of leave to enter or remain granted
 end of any extension of leave under sections 3C or 3D of the Immigration Act 1971, or
 the point that a migrant is deemed to have received a written notice of invalidity, in line with paragraph 34C or 34CA of the Immigration Rules, in relation to an in-time application for further leave to remain.

I did make my ILR application on the 18 June 2013, i.e. after the 09 July 2012 whilst on Section 3C as a variation of a Tier 1 (G) appeal. However, on page 17, the same document states:

Gap(s) in lawful residence
You may grant the application if an applicant:
 has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days, and
 meets all the other requirements for lawful residence.

I never received any notice of invalidation but rather a letter from the Home Office urging me to send additional documents within 28 days otherwise the application will be invalidated.

Any thoughts?

[quantum1]

I think the home office made a mistake. Your date of application was 19/07/2006 which is 19 days out of time and should be allowed. Your application would have been invalid, had you not made the necessary corrections within the stipulated 28 days. But since you did, the status of your application became valid.

While the Ukba is correct in saying you were an overstayer btween 30/06/2006 and 10/10/2006, such a gap is waived if it was due to an application made up to 28 days out of time. I think you should write to them to correct their mistake. Its an obvious error.

[Shogun75]

Thanks Quantum1,

The gap was the main reason for refusing the 10 years ILR, the other reason was that I made a fresh application whilst under Section 3C. That is fine because I've now included the ILR variation in the Grounds of Appeal.

I hope the Home Office will not withdraw the appeal and craft other refusal reasons at last minute which will trigger the whole appeal process again and costs etc...

Is that scenario possible? That Gap thing was completely unexpected I don't know what else they can turn up with on whatever hidden details of the Immigration Rules I've over looked.

Thanks again!!

[rdin]

The HO granted student visa on the 10/10/2006. The Home Office archived obtained through SAR shows a copy of FLR(S) form received by them on the 20/07/2006, VALIDATED by charging team on 03/08/2006 and VALIDATED by Caseworker on 24/08/2006.

I never received any letter at any moment during the application process saying my application was INVALID. There is also no mention of INVALID anywhere on the copy of the archived FLR(S) form and no fees were ever refunded.

H Shogun75, Does the SAR mention about the break in continuous residence? Or does it mention someting like "out of time by X days" ???

[Shogun75]

Hi rdin,

The SAR does mention "Out of Time by 2mths" on the 24/08/2006. But not "break in continuous residence". What does that mean?

[ajek01]

Can anyone or guru help on the following?

On 28/06/2006, I submitted FLR(S) in person at a PEO - This was rejected because University admission letter was more than 1 month old.

My visa expired on 30/06/2006.

On the 19/07/2006 I sent a postal application with a fresh University admission letter.

On the 03/08/2006, the HO returned my application because they couldn't take the payment and gave me 28 days to resubmit it otherwise the application will be invalidated. I resent the file with front & back copy of my Credit Card and the payment was collected on the 07/08/2006.

On the 24/08/2006, the HO returned my application again, because they could not read "Start & End Day" of my University Course on my supporting documents (a lot of them!!). They gave me 28 days to resubmit it otherwise the application will be invalidated. I resent the file on the 25/08/2006 pointing out the reference of my University letter "Start & End Day". The University is DFES recognised and within Top 20 of UK League Table.

The HO granted student visa on the 10/10/2006. The Home Office archived obtained through SAR shows a copy of FLR(S) form received by them on the 20/07/2006, VALIDATED by charging team on 03/08/2006 and VALIDATED by Caseworker on 24/08/2006.

I never received any letter at any moment during the application process saying my application was INVALID. There is also no mention of INVALID anywhere on the copy of the archived FLR(S) form and no fees were ever refunded.

Now the HO is refusing my 10-years ILR because they said I've got a single gap between the 30/06/2006 and 10/10/2006. Is that correct? Has anyone experienced something like that? I submitted the 10 years ILR on 18/06/2013 as a variation of a Tier 1 (General) Appeal.

Hi Shogan

Did HO return all documents back on the 03/08/2006? Or they had just asked the missing docs to resubmit?

Same question for 24/08/2006 refusal? - did HO return all docs back, and so you had to resubmit all docs on 25/08/2006?

Because if HO takes 03/08 or the 24/08 application as new application and not the continuation of 17/07 application, then they may be right saying out of time by more than 28 days.

In other words, 17/07 application was out of time by 17 days ( which is within 28 days). But since you resubmitted all docs on the 03/08, HO took that application as a new application and that application was out of date by 34 days.

Important point is whether the 03/08 application was a continuation of 17/07 application...

[Shogun75]

Can anyone or guru help on the following?

On 28/06/2006, I submitted FLR(S) in person at a PEO - This was rejected because University admission letter was more than 1 month old.

My visa expired on 30/06/2006.

On the 19/07/2006 I sent a postal application with a fresh University admission letter.

On the 03/08/2006, the HO returned my application because they couldn't take the payment and gave me 28 days to resubmit it otherwise the application will be invalidated. I resent the file with front & back copy of my Credit Card and the payment was collected on the 07/08/2006.

On the 24/08/2006, the HO returned my application again, because they could not read "Start & End Day" of my University Course on my supporting documents (a lot of them!!). They gave me 28 days to resubmit it otherwise the application will be invalidated. I resent the file on the 25/08/2006 pointing out the reference of my University letter "Start & End Day". The University is DFES recognised and within Top 20 of UK League Table.

The HO granted student visa on the 10/10/2006. The Home Office archived obtained through SAR shows a copy of FLR(S) form received by them on the 20/07/2006, VALIDATED by charging team on 03/08/2006 and VALIDATED by Caseworker on 24/08/2006.

I never received any letter at any moment during the application process saying my application was INVALID. There is also no mention of INVALID anywhere on the copy of the archived FLR(S) form and no fees were ever refunded.

Now the HO is refusing my 10-years ILR because they said I've got a single gap between the 30/06/2006 and 10/10/2006. Is that correct? Has anyone experienced something like that? I submitted the 10 years ILR on 18/06/2013 as a variation of a Tier 1 (General) Appeal.

Hi Shogan

Did HO return all documents back on the 03/08/2006? Or they had just asked the missing docs to resubmit?

Same question for 24/08/2006 refusal? - did HO return all docs back, and so you had to resubmit all docs on 25/08/2006?

Because if HO takes 03/08 or the 24/08 application as new application and not the continuation of 17/07 application, then they may be right saying out of time by more than 28 days.

In other words, 17/07 application was out of time by 17 days ( which is within 28 days). But since you resubmitted all docs on the 03/08, HO took that application as a new application and that application was out of date by 34 days.

Important point is whether the 03/08 application was a continuation of 17/07 application...

Hi ajek01,

The HO did send all the documents back to me including a HO Red Sticker with the Case worker addess and desk number on it to be return to the "right" person. Somethin like HST something if I remember. The HO said in the letter that if I don't resubmit within 28 days then the application will be invalidated and I will have to submitt a fresh application which could affect my Right of Appeal.

I've never received any letter saying that my application was invalid. I think on the 03/08/06 they made a processing "mistake" which prevented them from collecting the payment. On the 24/08/06, they requested documents which had aready been sent to them. I just think the HO had different agenda other than processing my application objectively because of my dependants who had just won an appeal to join me in the UK provided I'm issued with a new Resident Permit.

[ajek01]

Hi shogan

I suppose, there is another way to know, if 03/08 was a continuation of 17/07 ( correct me, if I am wrong).

When you applied on 03/08, you had received an acknowledgement letter? If the reference number on 03/08 application is same as the previous application's (17/07) reference number...this may suggest a continuation

Ajek

[Shogun75]

Hi shogan

I suppose, there is another way to know, if 03/08 was a continuation of 17/07 ( correct me, if I am wrong).

When you applied on 03/08, you had received an acknowledgement letter? If the reference number on 03/08 application is same as the previous application's (17/07) reference number...this may suggest a continuation

Ajek

Ajek,

I received only one aknowledgement letter after the 17/07/06 and that was it!! The HO reference number which was on the acknowledgement letter was the same as that used in the HO letter on the 03/08/06 and on the 24/08/06.

However, I received another letter on the 31/08/06 asking me to send further information, e.g. all my qualifications and certificates since I entered the UK 4 years erlier, my accommodation arrangement with my new University (I was living on the large rural Univesity Campus) as well as my employment contract showing "contracted hours". I sent the document where I could and pointed hem to the relevant information where not available from me. It was quite surprising because some of the certificates had already been submitted in previous application for extension.

Furthermore, I received another letter on the 03/10/06 asking me the days of my final exams at the university in the current academic year etc.. and I just asked the University student officer to deal with them...Because that was clearly an harassment and the University was very unhappy about it. I was so stressed out, unable to focus on my studies which cost huge amount of cash.

Th HO letters dated 31/08/06 and 03/10/06 used a different HO Reference number. Actually, the HO reference on them was that of my previous leave expiring on the 30/06/06 and which I used to sponsor my family to come over. Hence, the reason why I'm maintaining that the HO agenda was to scrutinise my application and to ensure I'm a genuine student who hasn't breached the conditions of his stay. Once they received all documents they sent me the resident permit on the 10/10/06. On the SAR they wrote: "we can confirm the applicant is a serious and genuine student and therefore we're granting him FLR(S) until 31/10/07".

[ajek01]

My understanding is, HO only changes reference number once an application is dealt with. Seems like they kept 03/08 application as a continuation of the 17/07 application (at least, the reference number suggests so).

What does your solicitor say about the HO decision?

Any thought Seniors/ Gurus as to why this case was not covered by 34C (out of date application up to 28 days)?

Or, it is an error from HO?

Ajek

[tsl]

do u have the letter when they first send u the letter of invalid application

[Shogun75]

do u have the letter when they first send u the letter of invalid application

They never sent me any letter of invalid application.
They just wrote a letter saying that they were unable to get the payment and therefore I should resend the payment withing 28 days otherwise the aplication will be invalidated.That was on the 03/08/06.

The same on the 24/08/06, but for another reason. There has never been any letter of invalidation because I met their requirement within the 28 days stipulated so they never had to invalid the application or send me any letter of invalidation

[vinny]

The application sent on 19/07/2006 was probably not invalid because you responded within 28 days to each query, as requested. However, it was out of time as it was after 30/06/2006, by 19 days.

[ann771]

The application sent on 19/07/2006 was probably not invalid because you responded within 28 days to each query, as requested. However, it was out of time as it was after 30/06/2006, by 19 days.

Hi Vinny, I have been following this post. The situation is very confusing and I am afraid but your reply has added a bit more confusion. I thought since Shogun applied within 28 days, he gets covered under 34C, but why did the HO refuse his ILR application based on continuity break?

Thanks
Ann

[vinny]

Perhaps they were wrong to refuse.

[Shogun75]

The application sent on 19/07/2006 was probably not invalid because you responded within 28 days to each query, as requested. However, it was out of time as it was after 30/06/2006, by 19 days.

Hi Vinny, I have been following this post. The situation is very confusing and I am afraid but your reply has added a bit more confusion. I thought since Shogun applied within 28 days, he gets covered under 34C, but why did the HO refuse his ILR application based on continuity break?

Thanks
Ann

I've requested a SAR again and received it a couple days ago. The situation is very annoying because the Data Unit wrote to me that: "Although, they are aware of the existence of the records related to that period on the Home Office databases, they made all "reasonable" efforts to retrieve them but were unable to do so and therefore they consider those records as "lost"...

Basically, they made decisions to reject an in-time application 3 times (i.e. 27/06/06, 03/08/06 and 24/08/06). The UKBA is telling me now in February 2014 that their memo, records and "true" underlying reasons why they returned my June 2006 application are "lost". This looks very fishy to me and at some point I may have to query that further. That's maybe the reason why the HO seems to be so cavalier in refusing my applications including FLR(S) in 2006 & 2007, FLR(IGS) in 2008, Tier 1 (G) in (2010 & 2013) and 10-year ILR in 2013. In all cases either the decison is reconsidered and granted by more senior staffs or a Judge allows the appeal until now. Also Section 47 removal directions were withdrawn by HO themselves on their own initiative.

I think I might be naive in believing solicitors who advise me that "Each application is treated on its own merit, the burden of proof is on the applicant and the decisions are made on balance of the probabilities". It's clearly not the case, and the HO seems to be looking for reasons to reinforce previous refusals. Caseworkers don't seem to question the validity and reasons for previous refusals and just carry on refusing. I would have understood if the HO were suspecting breach of conditions, misrepresentation or criminal records. Hoever, their refusal reasons are always on technicalities, e.g. Combination of documents inappropriate, format of documents etc...It's extremely frustrating.

No solicitor I work with apparently understand what's going on. I also note on this forum the careful and conditionl reply by vinny e.g. "probably not invalid". At least, I've got some kind of visibility of the HO internal process thanks to SAR.

Also, my understanding is that a notification of "invalid" application should have been made on "ICD.3676" I've never received such document. The letter on the 03/08/06 was drafted on form "ICD.2272A" and the letter on the 24/08/06 was drafted on "ICD.2276".

I hope those Home Office "ICD" documents make sense to some of the gurus and senior contributors on this forum. My First Tier tribunal hearing is in 3 weeks (i.e. more than 1 year after the Tier 1(G) application made on 11/03/13), I'll communicate the outcome to this forum. I'm looking forward to have the whole issue behind me and focus on other stuffs in life.

[vinny]

The application on 19/07/2006 was probably valid due to The Immigration and Nationality (Cost Recovery Fees) Regulations 2007) and The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2006.

[Shogun75]

The application on 19/07/2006 was probably valid due to The Immigration and Nationality (Cost Recovery Fees) Regulations 2007) and The Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2006.

woaaah!!!

If only I had known of this forum 3 years ago, I would have certainly become a British Citizen by now...
I wonder how much of that body of knowledge do HO junior caseworkers have. Because, at the end of the day, that lack of knowledge cost us £000's of Sterling squandered on various legal processes and time taken out of work, e.g. for a Consultant charging daily fees to clients.

I'll redraft my "Grounds of Appeal" with reference to the 2 pieces of legislation you sent.
Initially, my argument to prove the validity of my 19/07/06 application was based on the HO letters "ICD.2272A" and "ICD.2276" received on 03/08/06 and 24/08/06 respectively which requested "to resubmit additional documents in 28 days otherwise the application will be invalidated". I now have 2 pieces of legislation, in addition to the Basnet's case law to substantiate my claims at the hearing. Any additional, argument I'm unaware of is welcomed.

You guy's are Angels. Please, keep it up!!

[Shogun75]

As promised earlier this is an update on my substantive hearing today.

It appears that the HO felt cornered by the 2 pieces of legislation provided by vinny on this forum. Unfortunately, they requested another adjournement (again!!!), in order to have the opportunity to review their decision based on the 2 documents suggested by vinny, the earliest date for the next hearing is 24/06/13. The problem is that it really looks like a vicious cycle because I've been here before. I just think the HO is now abusing the Immigration Rules, something they deport people for. They're abusing the fact that there's always a new Judge at the hearing and they use the same trick over and over again.I think I might need help from my MP. I'll see what happens. I suppose the HO can afford that medicocrity because they are the HO and no one hold them accountable. Pathetic!!

[Bigboy86]

I HAVE A SIMILAR SITUATION AND WOULD REALLY APPRICIATE ALL UR HELP PLZ

My tier 4 visa
From 04/03/2008 to 30/06/2009

i applied before my visa expired as a tier 4 in 2009
AND
home office sent me a letter saying that the card number i provided didnt go through and asked me to send the correct fee with In 28 days BUT THEY SENT ALL MY DOCUMENTS BACK AND ASKED ME TO SEND THE CORRECT PAYMENT WITH UPDATED DOCUMENTS The mistake i made there was i sent the bank statement which didn't have enough money init and home office refused my application and gave me 3 option either i appeal within 28 days or i leave within 28 day or make another application in 28 days.s
I then went to my solicitor and he advised me to resubmit the fresh application which i did within 28 days bec appeal will b more costly and time consuming and got tier 4 visa granted

From 01/10/2009 to 30/10/2012 (took 3 months for all the process)

[Shogun75]

I' not sure if anyone follows this thread but this is an update:

We finally have our appeal heard on the 24 Jun 2014. The appeal was allowed within minutes but since it was a Long Residence and Private application, the Judge said he didn't have the logistic to carry out the CRB checks, the in and out stamps in the passpots or the dates on the previous residence permits. Therefore, he "remitted" back the file to the Home Office (HO) to reconsider their decision, carry those checks and grant ILR accordingly.
However, 2 months down the line I've not still heard about the HO and when my MP contacted them last week to check progress, they said they haven't received the Judge's determination yet and canot proceed without it. This is obviously false because Determinations are sent to all parties within days of the hearing, we received ours on the 3 July 2014. The HO charging team even refunded our Court Fees to us last month as instructed in the same Determination they said "they haven't received yet".

It seems like deliberate waste of time, since there's no time scale.
However, I got no other option than to wait.

[Zaidii]

Thanks for the update shogun, I hope you get your visa soon.
Regards
Zaidi

[Shogun75]

Hi All,

For those following this thread...
The HO has finally granted the ILR.
It was recommended that my UK born dependant should immediately apply for British citizenship.

However, my wife and non-uk born dependants have been granted 2.5 years. I'm not sure what that means but I supposed they didn't qualify under the 10-year Long Residence.

Their historical status is:

1.Student dependants from Oct 2007 to Aug 2008
2.Tier 1 (PSW) dependants from Aug 2008 to April 2011 (After successful Appeal)
3.Tier 1 (G) dependant from April 2011 to Nov 2014 (After Successful Appeal)
4. LTR for 2.5 years since Nov 2014

Hope these will help someone,

Regards,