Immigrationboards.com

My case:
Student 10 Yrs Long residence 18 Jan 2002-2012

[u][b]First Gap: 30 June -28 July 2008 28 days[/b][/u]
Date last LTR granted : 30 June 2008
Date application received by Home office 16 June2008 ( 2 weeks before expiry)
Date application rejected : 09 July 2008 ( Name and date of birth were not written at back of Photographs )
Date again application received by H.O: 18 July 2008
Date extension granted :28 July 2008
Date extension granted to : 30 June 2009

[u][b]Second Gap: 30 June 2009-14 Jan 2010 6 Months 14 days[/b][/u]

Date last extension granted to : 30 June 2009
Date application received by Home office : 19 June2009 ( 10 Days before expiry)
Date application Invalid : 10 July 2009
( H.O did not receive my fee as my college fee and home office fee gone through same time through my credit card)
Date again application received by H.O: 15 July 2009
Date application refused : 20 Aug 2009 ( My bank statement was one month old and £990 was due out of £2545 college fee payable in March 2010. 10 Points for fund maintenance were not granted)
Date again application received by H.O: 14 Sep 2009 ( with clean college letter and fresh bank statement)
Date extension granted : 14 Jan 2010
Date extension granted to : 10 Aug 2010

[u][b]Indefinite Application[/b][/u]
My 10 yrs were completed on 18 Jan 2012
Date last LTR granted : 22 June 2012
Date indefinite application (by My solicitor) received by H.O : 20 Jan 2012
Application refused : 10 April 2012 because of above 2 gaps
Home office never replied reconsideration letter sent by my solicitor before 22 June 2012
As per my solicitors advice i filed fresh Indefinite application before 22 June 2012 in order to get right of appeal if refused.
Fresh application received by H.O :13 June 2012
Application refused : 29 Jan 2013 becos same above gaps.

Against refusal an APPEAL is faxed to First Tier Tribunal for Oral hearing on 11/2/2013.
Please consider my case study and advice on out come of hearing.
Thanks a lot
Ash

From the HO:

'Subject to that, continuous residence shall not be considered to
have been broken where an applicant is absent from the United
Kingdom for a period of 6 months or less at any one time, provided
that the applicant has existing limited leave to enter or remain
upon his departure and return.
To benefit from this, an applicant must have valid leave on the
date that they departed the UK and valid leave on the date that
they returned. Please note that this does not have to be the same
grant of leave on departure and return (see Example 2). Nor is it
necessary for the leave to be in the same category (i.e. an
applicant can depart the UK with leave as a student and return with
leave as a work permit holder). As long as the applicant has valid
leave on both the date of departure and the date they return, they
will not have broken continuous residence.'

You were absent for more than 6 months. I think that reset your clock.

I have n't been absent from Uk during these time gap mentioned by H.O. I have been reapplying every time application was rejected or refused.

The first gap is debatable. There is exercisable discretion concerning invalid photographs and subsequent submission of photographs. Moreover, writing on the back of photographs may be non-mandatory requirements. Failing non-mandatory requirements should not have made the application invalid.

The second gap may be more difficult to overcome, if your credit card company had refused payment because you had been over your credit limit. However, the UKBA must prove that the application was invalid.

With respect to second Gap H.O letter said following on 20 Aug 2009:

The secretary of state is not satisfied that you have achived 10 points under appendix C of immigration rules and it has been decided that you have not met the rules to be granted leave to remain under Tier 4 . Therefore you dont satisfy the requirement of immigration rules for this category and it has been decided to REFUSE your application for leave to remain as Tier 4 student migrant under Paragraph 245ZX(d) of immigration rules.

Ash Hafeez wrote:With respect to second Gap H.O letter said following on 20 Aug 2009:

The secretary of state is not satisfied that you have achived 10 points under appendix C of immigration rules and it has been decided that you have not met the rules to be granted leave to remain under Tier 4 . Therefore you dont satisfy the requirement of immigration rules for this category and it has been decided to REFUSE your application for leave to remain as Tier 4 student migrant under Paragraph 245ZX(d) of immigration rules.

are you not covered by 3C ?

Against refusal my solicitor gave reference of Section 3C & 3d act 1971 to Home office but they did not consider it as ongoing application.

Long residence guideline 2013 now allows an out of time application up to 28 days without affecting to ILR on long residence basis.

Ash Hafeez wrote:Against refusal my solicitor gave reference of Section 3C & 3d act 1971 to Home office but they did not consider it as ongoing application.

They consider that Section 3C was not applicable because they had simply declared the in-time application to be invalid.