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I have a situation here which is unique for me. after submitting my 2nd application which is out of time but made within 28 days overstaying i am coming to fill my 10 years. my question is if i touch that line while the decision is still pending will that be counted as continuous residency if I vary the application for ILR based on long residency. please gurus comment

Please gurus specially vinny and amber comment

You may vary any application until a decision is made.

Thx amber. But my query is will that time after the 2nd application be counted towards long residency if a decision isn't made provided it was within 28 days?

Yes it should be fine.

Thx amber

Mate Tanvir 1985th,

i am on the same situation now as you were. could you please update me, if fresh application by withdrawing the appeal counts towards a long residency.

I will appreciate it mate if you could reply to my question.

regards
Robeenson`1

robeenson12 wrote:Mate Tanvir 1985th,

i am on the same situation now as you were. could you please update me, if fresh application by withdrawing the appeal counts towards a long residency.

I will appreciate it mate if you could reply to my question.

regards
Robeenson`1

yes it does

No you cannot vary any application.

When you made your 2 application, Section 3C had elapsed, therefore you cannot vary anything.

A new application will have to be made.

The 28 day concession is not derived from section 3C

The application date remains the date of the original application and not the date of the variation. You will need to consider this when deciding if you benefit from section 3C leave and determining any appeal rights.

Aside from the above, the OP made a new application as an overstayer, albeit he was permitted to do so, as the overstay was less than 28 days.

He cannot vary that application. That is my only point of contention. I am pretty much content with everything else.

Section 3C is irrelevant for a variation insofar as 34A of the rules is satisfied.

Amber wrote:The application date remains the date of the original application and not the date of the variation. You will need to consider this when deciding if you benefit from section 3C leave and determining any appeal rights.

I understand that is the UKBA view of variation, but there is not backing for it it law.

See Section 3C

In section 3C, the first application is considered a variation, and it mentioned in sub paragraph 5 , that nothing in Sub paragraph 4 prevent an application under sub paragraph 1(a) from being varied.

So where this view of UKBA originates from is beyond me.

If they are correct, which i believe they are not, then a student who applies for leave, and then marries a British Lady, will be unable to vary his leave to a spouse of a setled person, because at the time of the application, he was not married to the British lady.

This will be absurd, and will go against all the principle and policy behind variation, which is to all the whole circumstance of a person to be look at in one go before a decision, so as to prevent multiple decision and possibly many appeal.

I think i will live this for another thread.

Amber wrote:Section 3C is irrelevant for a variation insofar as 34A of the rules is satisfied.

I think we are talking about different things here.

34A seems to deal with application made before or after a person's extant leave expires.

Section 3C(5) , is where the power for an applicant to change their original application into something else, derives.

That power only exist if a person had leave to remain, before they made their application, ( Which is usually called vary as well) as you are essentially doing that, either by requesting an extension of your visa or applying under a different category.

Yes, two different things, OP can vary just means no appeal rights as leave had expired but will still be accepted as within 28 days of leave expiration. Hence SET(LR) needs to be perfectly completed.

Well i fully agree with that.

A full fee will need to be made for the new application.

So gurus can I vary or not?

Yes.

I believe you may be able make a new application , but not vary the current one, as you currently have no leave to vary.

You have no section 3C or an extant leave.

The normal meaning of the English word vary, seem to mean changing something from one form to another.

You are currently an over stayer who has made an application within a concessionary period provided in the rules.

I accept fully that an application can be made, but I see nothing that can be varied, as someone cannot vary an over stayer status into another.

I believe you may be able make a new application , but not vary the current one, as you currently have no leave to vary.

You have no section 3C or an extant leave.

The normal meaning of the English word vary, seem to mean changing something from one form to another.

You are currently an over stayer who has made an application within a concessionary period provided in the rules.

I accept fully that a new application can be made, but I see nothing that can be varied, as someone cannot vary an over stayer status into another.

Obie wrote:I believe you may be able make a new application , but not vary the current one, as you currently have no leave to vary.

You have no section 3C or an extant leave.

The normal meaning of the English word vary, seem to mean changing something from one form to another.

You are currently an over stayer who has made an application within a concessionary period provided in the rules.

I accept fully that a new application can be made, but I see nothing that can be varied, as someone cannot vary an over stayer status into another.

His new application will be rejected if apply after 28 days since his 3c ends.

U have limited option now

Follow amber advise to vary the application.

As amber said date of 2nd application counts not the variation date.

U need to make a choice now

If i am in your shoe i follow Amber advise.

As obie advise of new application is straight refusal but amber advise can give u some chance to get visa and if refuse u have strong case if u put JR.

Best of luck

When he made the second application he did not have any leave to remain, either Section 3C or an Extant leave, si he cannot vary. He was an over stayer when he made the 2nd application.

He was permitted to apply, as the rules allow him to apply provided his overstaying was less than 28 days.

However he is not permitted from varying that application that he made when he was an over stayer.

Obie wrote:When he made the second application he did not have any leave to remain, either Section 3C or an Extant leave, si he cannot vary. He was an over stayer when he made the 2nd application.

He was permitted to apply, as the rules allow him to apply provided his overstaying was less than 28 days.

However he is not permitted from varying that application that he made when he was an over stayer.

2nd application date counts not the variation date.

2nd application should be within 28 days so he applied within HO rules any variation should be ok as date of application counts not the date of variation

With second application, there was no Section 3(C) as he was an overstayer, so the OP cannot vary anything. That is how i understand the law, and the UKBA policy.

I am of the view that your point is logical in a sense, but failed to appreciate that the second application the OP made, was made at a time when he did not have any leave. In those circumstance i beg to differ with you.

Your view is not only inconsistent with the law, but with UKVI policy aswell.

[b]Conditions of Variation[/b] wrote:However,section 3C(5) of the 1971 Act allows an applicant with 3C leave to vary their
application at any time before it is decided. This means they can ask for their application to
be considered on different grounds to their original application.
You must check CID to see if an applicant has an outstanding application and whether
3C leave is in effect. If they have, you will need to establish if the applicant wishes the new form
to be considered as a variation of the grounds upon which their original application was made.

Obie the UKVI (click) does not sate that you can only vary an in-time application. It merely confirms that a variation may not have appeal rights, depending on whether the original application was in time or not.