Indefinite leave based on long residence and appeal in court

[saeedh]

Hello,
my 10 years period is going to be completed in one week time. Currently i am awaiting for permission from first tier tribunal to approach upper tribunal almost 6 months. i met with my solicitor last week to discuss long residence application and he said to me that new rules says that now 28 days period of submitting application before 10 years completion has been reduced to 14 days. He also has told me that first i have to write to tribunal to withdraw my appeal and once i have received confirmation from court that my appeal has been withdrawn then i can send long residence application along with this case withdrawal confirmation with in 14 days. i am bit confused because before it was like i just need to inform court that i want to withdraw my case and then can send my long residence indefinite leave application.

Please share information if someone is sending long residence application or have sent recently.

Regards
Saeed

[CR001]

The 28 days before qualifying has not changed.

The 14 days is regarding submitting a new app or appeal after a visa has expired already or applying for AR.

[KAL C]

I hope the period of his new application or appeal pending is counted as his or her lawful residence in the UK as far as he or she made the application within 14 days of the conclusion of his or her AR or Appeal and he or she has not exhausted all the his appeal rights in the UK

[CR001]

I hope the period of his new application or appeal pending is counted as his or her lawful residence in the UK as far as he or she made the application within 14 days of the conclusion of his or her AR or Appeal and he or she has not exhausted all the his appeal rights in the UK

It is ONLY counted if there is a favourable outcome of AR or the appeal.

[Obie]

Hello,
my 10 years period is going to be completed in one week time. Currently i am awaiting for permission from first tier tribunal to approach upper tribunal almost 6 months. i met with my solicitor last week to discuss long residence application and he said to me that new rules says that now 28 days period of submitting application before 10 years completion has been reduced to 14 days. He also has told me that first i have to write to tribunal to withdraw my appeal and once i have received confirmation from court that my appeal has been withdrawn then i can send long residence application along with this case withdrawal confirmation with in 14 days. i am bit confused because before it was like i just need to inform court that i want to withdraw my case and then can send my long residence indefinite leave application.

Please share information if someone is sending long residence application or have sent recently.

Regards
Saeed

The Lawyer is wrong and is misleading you. A long residence application is considered as a Human right application, and can be made even when an appeal is pending, so there is no need to withdraw it.

[saeedh]

Thanks for your help but i am still confused.

According to Case worker notes

The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal

A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application this basis. Under sections 3c and 3D, it is not possible to submit an application while an appeal is outstanding. However, the can submit further grounds to be considered at appeal.

If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the long residence application and refund the fee. You must create a file or sub-file and mark it 'PRIORITY' . You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.

Page 22 of 43 Published for home office staff on 24 November 2016

can someone explain please

[Obie]

Home Office are clearly confused.

Page 8 of this guidance appears to reflect the current and correct position in light of the changes done to section 120 of the Nationality Immigration Asylum and Nationality Act 2002.

The guidance includes application made under 276B (Long Residence) as application that could be lodged whiles an appeal is pending, as such application are classisifed as a Human Right Claim.

Therefore the Long Residence Guidance is a bit contradictory. However if you apply, you will have noting to lose. It can be argued against them, that you are making a Human Right claim by virtue of 276B, which is covered in their guidance, and therefore Section 3C does not preclude you from advancing it.

[archie_virgoian]

Thanks for your help but i am still confused.

According to Case worker notes

The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal

A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application this basis. Under sections 3c and 3D, it is not possible to submit an application while an appeal is outstanding. However, the can submit further grounds to be considered at appeal.

If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the long residence application and refund the fee. You must create a file or sub-file and mark it 'PRIORITY' . You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.

Page 22 of 43 Published for home office staff on 24 November 2016

can someone explain please

I had the same case like you and will share my experience in case it guides you. I was on DLR and had an appeal date and was waiting for my appeal. Like you while waiting for appeal i completed my 10 years. My solicitor served Statement of Additional Grounds under section 120 of 2002 Act that i have completed lawful 10 years of residence in UK and my case should be considered under paragraph 276B of the immigration rules as i had already lodged an appeal which was before the first tier tribunal, i was unable to submit a fresh application.

Since you have right to make amendment in your case and my solicitor used that right so at my hearing in court my appeal was heard on 10 years long residence basis. Judge did ask me for all my 10 years history and thankfully i had all scanned extracts of my passports and visas so for judge to establish that i have completed my 10 years lawfully, was not a problem. My appeal was allowed and granted ILR (LR).

Bit extra for your Info regarding making fresh application while waiting for hearing/appeal:

There was an issue with making new application while i was waiting for appeal hearing as my barrister pointed out during hearing to judge that home office rules are contradictory when it comes to making new application for ILR whilst waiting for appeal hearing. He pointed out to judge that Home office rule says "The person may complete 10 years lawful residence whilst they are awaiting outcome of an appeal and submit an application on this basis. Under section 3C and 3D it is not possible to submit a new application while an appeal is outstanding. However, applicant can submit Further Grounds to be considered at appeal."
so according to this rule if i had withdrawn my appeal and submitted new application, my immigration clock would have gone to zero (that was agreed by home office rep as well in front of judge in court).

So i would suggest that instead of withdrawing, ask your solicitor to, well before your hearing date, serve Statement of Additional Grounds under section 120 of 2002 Act that you have completed lawful 10 years of residence in UK and your case should be considered under paragraph 276B of the immigration rules. And then at hearing you have to make sure that you evidently proof (through visas issued and no gaps more than 28 days between visas) that you have completed 10 years lawful residence .....oh and not to mention, Life in UK and english test.

Hope this helps you but do have a chat with your solicitor. I have been through this hassle so i understand the pressure and fatigue.

[saeedh]

Thanks for your reply its really useful for me
actually my appeal was heard at first tier tribunal in February last year and decision was against me and then i did apply for permission from first tier tribunal to approach upper tribunal. so to date i am awaiting for first tier tribunal decision regarding granting me permission to approach upper tribunal. i do check with them time to time and its still pending. 10 years going to complete 10th of January.

[saeedh]

Please support

[saeedh]

finally i have got some information to share which shows i think my solicitor is right.

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

What 39E says

Exceptions for overstayers

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

i think solicitor is right i should withdraw appeal form or should wait for 1st Tier tribunal decision to give me permission to approach upper tribunal. once their decision arrives i can then send Long residence application to home office with in 14 days or after receiving withdrawal notice i can send application to home office in 14 days.
in any case i will be protected because of
39 E (iv)

Thanks for your help but i am still confused.

According to Case worker notes

The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal

A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application this basis. Under sections 3c and 3D, it is not possible to submit an application while an appeal is outstanding. However, the can submit further grounds to be considered at appeal.

If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the long residence application and refund the fee. You must create a file or sub-file and mark it 'PRIORITY' . You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.

Page 22 of 43 Published for home office staff on 24 November 2016

can someone explain please

I had the same case like you and will share my experience in case it guides you. I was on DLR and had an appeal date and was waiting for my appeal. Like you while waiting for appeal i completed my 10 years. My solicitor served Statement of Additional Grounds under section 120 of 2002 Act that i have completed lawful 10 years of residence in UK and my case should be considered under paragraph 276B of the immigration rules as i had already lodged an appeal which was before the first tier tribunal, i was unable to submit a fresh application.

Since you have right to make amendment in your case and my solicitor used that right so at my hearing in court my appeal was heard on 10 years long residence basis. Judge did ask me for all my 10 years history and thankfully i had all scanned extracts of my passports and visas so for judge to establish that i have completed my 10 years lawfully, was not a problem. My appeal was allowed and granted ILR (LR).

Bit extra for your Info regarding making fresh application while waiting for hearing/appeal:

There was an issue with making new application while i was waiting for appeal hearing as my barrister pointed out during hearing to judge that home office rules are contradictory when it comes to making new application for ILR whilst waiting for appeal hearing. He pointed out to judge that Home office rule says "The person may complete 10 years lawful residence whilst they are awaiting outcome of an appeal and submit an application on this basis. Under section 3C and 3D it is not possible to submit a new application while an appeal is outstanding. However, applicant can submit Further Grounds to be considered at appeal."
so according to this rule if i had withdrawn my appeal and submitted new application, my immigration clock would have gone to zero (that was agreed by home office rep as well in front of judge in court).

So i would suggest that instead of withdrawing, ask your solicitor to, well before your hearing date, serve Statement of Additional Grounds under section 120 of 2002 Act that you have completed lawful 10 years of residence in UK and your case should be considered under paragraph 276B of the immigration rules. And then at hearing you have to make sure that you evidently proof (through visas issued and no gaps more than 28 days between visas) that you have completed 10 years lawful residence .....oh and not to mention, Life in UK and english test.

Hope this helps you but do have a chat with your solicitor. I have been through this hassle so i understand the pressure and fatigue.

[saeedh]

finally i have got some information to share which shows i think my solicitor is right.

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.

What 39E says

Exceptions for overstayers

39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

i think solicitor is right i should withdraw appeal form or should wait for 1st Tier tribunal decision to give me permission to approach upper tribunal. once their decision arrives i can then send Long residence application to home office with in 14 days or after receiving withdrawal notice i can send application to home office in 14 days.
in any case i will be protected because of
39 E (iv)

[Mokta123]

Hi archie_virgoian,

Could you please tell me who was your solicitors?

Thanks

[CR001]

Hi archie_virgoian,

Could you please tell me who was your solicitors?

Thanks

Members are NOT permitted to post solicitor names or contact details on the forum. Kindly also refrain from digging up older posts. Suggest start your own topic with your circumstances.