ILR 10 years lawful residence and paragraph 39E

Hi everyone,
I entered in the uk September 2009 and applied for extention 29th april 2013 ( in time application). Got refusal june 2018 with appeal right. Appeal right exchused by 12th march 2019. I made flr (fp) application in 19th march and then varied set o application in 5th may 2019. Now 10 years will complete by 27 September 2019. My question is did i break any lawful resident time period during making flr fp application in 19th of March. If i complete without any decision on set o application , is there any chance i can make vary Ilr application .is it 39e will be applicable on my case ? Is it still my 10 years lawful resident chain continue .
Any advice helpful and many thanks for your wonerful platform and help.

No.

Hi Vini

Please see this recent judgement from UT judge regarding 39E.

https://tribunalsdecisions.service.gov. ... 04404-2018

Then try citing this judgment.

Does ANY overstaying rule out settlement after 10 years’ long residence? Confusion after Court of Appeal ruling > Ahmed, R (on the application of) v The Secretary of State for the Home Department [2019] EWCA Civ 1070 (21 June 2019).

Warning: this case is likely to annoy you.

I was told by my solicitor that this (COA)Ahmed is different from UT reported Ahmad case .both are different persons with same name and similar cases in COA.

DEAR VINNY ,Do you think this judgement makes sense ,on one hand judges says ,276 b(v) is freestanding separate points and they say HO guidance is wrong on ILr .

this does not make any sense

The facts
The Applicant (born on 30th January 1983), a citizen of Bangladesh, arrived in the United Kingdom on 23rd August 2002 on a valid student visa (EC). He was granted LTR from 29th July 2002 until 31st October 2005. On 31st January 2006, he was granted further LTR on the same basis valid until 31st January 2007 when his visa expired.

In December 2006, the Applicant visited Bangladesh (to see his mother). Following his return, on 23rd February 2007, the Applicant applied out of time for further LTR. On 19th March 2007, the application was returned as invalid. The Applicant re-submitted the application which was granted on 17th September 2007, with LTR valid until 31st May 2008.

------

How on earth was it possible for this guy to enter the country after his visa was expired on 31st of January. and then to top it he made an invalid application which was returned to him and then resubmitted. THATS NOT AT ALL A PARAGRAPGH 39E CASE. this is overstaying beyond the legal rules. As to claim 39e rules an applicant should be in the country (NOT LEFT) after his visa expires.

I don't understand why the Judge has made a decision confusing 39e further.
This Masum Ahmed decision has ruined everything. it means that "Juned Ahmed" which is awaiting permission would be denied as well. https://casetracker.justice.gov.uk/getD ... d=20182976

The Judge in Masum Ahmed's decision kind of put a full stop on our cases.

Hello all,
i am also in same situation cause of 39e .HO certified mine but not my dependent. she got a appeal right on her flr fp application. so i have send a PAP but no response so planning to lodge JR. unfortunately recent case from coa seems no good.
but i feel as for all 39e cases cant we make a grounds on the 276A as a definition of ''continuous lawfully stay'' . its clearly written on 245AAA, or appendix ecca that lawful stay is unbroken when an application raise 39e rules. even recent judgement of COA mention abt it. As per rules, HO requirement for ILR in different categories can be different depend on individual but definition of ''continuous lawful residence'' or'' 3c'' or ''breach of immigration rule'' etc have to be same for all immigration rule and their policy. it was clearly mention on recent judgement.
COA is bound to give decision on the ground the appellant have raised. if 276B sub par i-v are separate and freestanding and both judgement on ahmeds case says that. what about definition of '' continuity and lawful'' residence mentioning unbroken if 39e applies on various other ilr route. can we argue on that basis?
i have little knowledge abt this ,so i say what i understand after reading the recent judgement, may be i misunderstood it . all gurus, Cattak , Sunny024 , vinny can you please clear it.

i can understand your frustration. even judges seem to be confused on this issue.
if you make an application within 14 days where 39 e should apply to prevent you from becoming an overstayer, if you are not an overstayer then your leave should continue whilst an application is pending or at least you are following the rules.

a similar case, the applicant got permission.
comments below made by this judge makes sense.
A common mistake in many of these cases is that a consideration of the Appellant's situation stops at the point where his Section 3C leave ends. That is, of course, correct at one level. However, where it is necessary to do so, consideration must be given to paragraph 276B(v), which is dealing with continuity of legal residence in relation to an application for "indefinite leave to remain on the ground of long residence", because it is this provision that expressly draws attention to a paragraph 39E application, which may have been made at the end of the Section 3C leave, and where that is the case, proper consideration must be given to this as a separate matter.

Sunny024 wrote: ↑

Sat Jul 06, 2019 12:49 am

i can understand your frustration. even judges seem to be confused on this issue.
if you make an application within 14 days where 39 e should apply to prevent you from becoming an overstayer, if you are not an overstayer then your leave should continue whilst an application is pending or at least you are following the rules.

a similar case, the applicant got permission.
comments below made by this judge makes sense.
A common mistake in many of these cases is that a consideration of the Appellant's situation stops at the point where his Section 3C leave ends. That is, of course, correct at one level. However, where it is necessary to do so, consideration must be given to paragraph 276B(v), which is dealing with continuity of legal residence in relation to an application for "indefinite leave to remain on the ground of long residence", because it is this provision that expressly draws attention to a paragraph 39E application, which may have been made at the end of the Section 3C leave, and where that is the case, proper consideration must be given to this as a separate matter.

SO, any news on juniad ahmed PTA case ? heard news about recent pendind case for ut or coa.... that all remaining cases get letter regarding recent COA judjement.what is it?

Cattak wrote: ↑

Fri Jun 28, 2019 8:57 pm

this does not make any sense

The facts
The Applicant (born on 30th January 1983), a citizen of Bangladesh, arrived in the United Kingdom on 23rd August 2002 on a valid student visa (EC). He was granted LTR from 29th July 2002 until 31st October 2005. On 31st January 2006, he was granted further LTR on the same basis valid until 31st January 2007 when his visa expired.

In December 2006, the Applicant visited Bangladesh (to see his mother). Following his return, on 23rd February 2007, the Applicant applied out of time for further LTR. On 19th March 2007, the application was returned as invalid. The Applicant re-submitted the application which was granted on 17th September 2007, with LTR valid until 31st May 2008.

------

How on earth was it possible for this guy to enter the country after his visa was expired on 31st of January. and then to top it he made an invalid application which was returned to him and then resubmitted. THATS NOT AT ALL A PARAGRAPGH 39E CASE. this is overstaying beyond the legal rules. As to claim 39e rules an applicant should be in the country (NOT LEFT) after his visa expires.

I don't understand why the Judge has made a decision confusing 39e further.
This Masum Ahmed decision has ruined everything. it means that "Juned Ahmed" which is awaiting permission would be denied as well. https://casetracker.justice.gov.uk/getD ... d=20182976

The Judge in Masum Ahmed's decision kind of put a full stop on our cases.

actually i guess masum ahmed is considering 10 year from sep 2007 to 2017 , after his invalid application . if that was the case its same as ours situation. still i feel judgement result is dismissed but it raise a lots of question on policy of gudiance on long residency, which seems we r right on 39e but little mess going around ....hope so atleast will sort out soon

Yes junaid Ahmed plus all pending cases on 39e, 276b (v) including me got letter from judge who decided court of appeal matter, he says, now the matter is decided, if you have any further submissions to be made, do it in 14 days.

If submissions goes to same judge its highly likely it will be refused.
My solicitor told me, Coa reported decisions are not bound by its own decisions, other judges can make different judgements on similar matter
Let's see how it goes
Someone should take this matter to supreme court to sort it out but Coa isn't allowing us to go.
Not sure why this is happening.

Sunny024 wrote: ↑

Sun Jul 07, 2019 3:27 pm

Yes junaid Ahmed plus all pending cases on 39e, 276b (v) including me got letter from judge who decided court of appeal matter, he says, now the matter is decided, if you have any further submissions to be made, do it in 14 days.

If submissions goes to same judge its highly likely it will be refused.
My solicitor told me, Coa reported decisions are not bound by its own decisions, other judges can make different judgements on similar matter
Let's see how it goes
Someone should take this matter to supreme court to sort it out but Coa isn't allowing us to go.
Not sure why this is happening.

HELLO SUNNY024, have ur solicitor consider on further submission as ground on recent coa judgement abt defination of'' continuity unbroken when 39e rules applies at other ILR catogries? my solicitor say its a good thing to argue on that bases as well rather than 276 sub i-v . dont know whats gonna happen.

Yes he drafted new grounds ,did you get a letter from COA on this matter because of Ahmed’s case ?

Sunny024 wrote: ↑

Mon Jul 08, 2019 12:03 am

Yes he drafted new grounds ,did you get a letter from COA on this matter because of Ahmed’s case ?

i just lodge jr 2 days ago. havent received any letter.act my dependent is not certified and is in ftt appeal and mine is certified so made a ground on that basis to get in country appeal right. today is her hearing date but judge adjourn the hearing cause mine case is in jr as certified so. i dont understand why judge said to my wife that after 6 weeks, case will heard substantially along with ur main applicant .so lets seen what will happen.

Sunny024 wrote: ↑

Mon Jul 08, 2019 12:03 am

Yes he drafted new grounds ,did you get a letter from COA on this matter because of Ahmed’s case ?

HELLO sunny024 any new updates on the case abt 39e. my jr is still pending too.

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Follow this link to get regular updates on 39e issue

Sunny024 wrote: ↑

Wed Jul 24, 2019 3:06 pm

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Follow this link to get regular updates on 39e issue

I suggest you read the forum rules on what you are not permitted to post on the forum!!

the HO guidance "Applications from overstayers (non family routes) – version 7.0 Published for Home Office staff on 24 Nov 2016".

There are 2 points I need you guys to read which may be very helpful in our cases

PONIT 1: It also cover LONG RESIDENCY APPLICATIONS

This guidance is for caseworkers who consider applications for further leave to remain made on or after 9 July 2012 by an applicant without valid leave in certain routes.

The routes it covers are:

• all work and study, including the points-based system • visitors • long residency • UK ancestry • most discharged Her Majesty’s (HM) forces

POINT 2: IT ISNOT A GROUND FOR REFUSAL

This section tells you about considering applications where the applicant has overstayed their original grant of leave.

Any applicant who is applying for leave to remain must not have remained in the UK after the expiry of their original grant of leave, on the date of their application. Remaining in the UK after leave has expired is commonly known as overstaying.

The Immigration Rules were amended with effect from 24 November 2016 to abolish the 28 day grace period, under which applications for leave to remain were not refused on the basis of overstaying if made within 28 day of the expiry of leave. The Immigration Rules now provide for current overstaying to be disregarded in a limited number of scenarios but otherwise it is a now a ground for refusal.

First, overstaying will be disregarded if 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 it could not be made in time, provided that the application is made within 14 days of the expiry of leave.

Second, overstaying will be disregarded where the applicant previously made an in-time application, or an application which fell within the first exception above, which was refused and the current application was made within 14 days of:

• the refusal of the previous application for leave • the expiry of any leave extended by section 3C of the Immigration Act 1971 • the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable), • any administrative review or appeal being concluded, withdrawn or abandoned or lapsing

The provision to permit exceptions for overstayers is found in paragraph 39D of the Immigration Rules. This states:

‘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.’ The 14 day consideration period is calculated from the latest of:

• the last day of their latest grant of leave to enter or remain, or • the end of any extension of their leave under sections 3C or 3D of the Immigration Act 1971

HELLO, cattak.
actually the main problem is not the disregard of overstay where 39e rules applies. the main problem is the the amount of time that disregarded(where 39e provision applies) is not counting toward the 10 years qualify period. i guess. but unfortunately, all other route (245aaa, or other category clearly mention that continuity is not broken (and count lawfully) for any application where 39e applies , so similar situation like ours on that category r fine and are continuous, where as in long residency , drafting of same rules is so confused that it make trouble for application like ours.
now, actually it seems both verdicts on ahmeds cases and policy guidance are pole apart and doesn;t match accordingly, so have to wait n see how this issue gonna be resolved. and btw now a days seems like all 39e case, appeal are allowed within ftt, havent seen new case like ours since few weeks/months .. hopefully some gud news will be soon.

any inputs or updates from gurus would have been highly appreciated n helpful , as we r in such limbo situation

Some are refused and some are allowed, I'm attending a Jr hearing on 6th next month, let's see how it ends

Hi Sunny
My JR permission hearing is on 06th too. After Ahamed case (COA June 2019), UT refuses to accept amended grounds in my case, I have hired a top barrister and he is telling we might get refused in UT due to Ahamed now. He thinks we have to fight in COA. Very frustrated, but no choice.

Sunny024 wrote: ↑

Tue Jul 30, 2019 10:53 pm

Some are refused and some are allowed, I'm attending a Jr hearing on 6th next month, let's see how it ends

Hi Sunny
My JR permission hearing is on 06th too. After Ahamed case (COA June 2019), UT refuses to accept amended grounds in my case, I have hired a top barrister and he is telling we might get refused in UT due to Ahamed now. He thinks we have to fight in COA. Very frustrated, but no choice.

GUD LUCK PORTS N SUNNY.. bro's keep updating. hope n best wishes that 6th gonna be gud luk n gud news for u guys n little hope for us as well.