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Dear All,

Please I'm desperately in need of the right advise. I applied for ILR under the Tier 1 General Migrant in June 2016 and my application was on hold till September 2018 when I completed my 10 years stay in the UK so my solicitor at the time advised he would write a pre-action protocol letter in order to pressure HO to make a decision on my application (I'm not sure why he did not advise to immediately switch to 10 year application, but I guess that's another story and there's no point crying over that spilled milk now). In December 2018 they made a decision and refused my application under the paragraph 322(5) and 245CD(b) of immigration rules so we submitted Admin Review, which was also refused in January 2019 where they gave me 2 weeks to leave the UK or I would be detained and removed. I did not file in for Judiciary Review so within the 2 weeks I was given I submitted my 10 years Set(LR) application but the confusing part is that my solicitor said I'm no longer legally allowed to work in the UK so under the employment section he filled in unemployed for me. This has been disturbing me and I simply can't get my head round it so I sought advise from another solicitor who said I'm still legally allowed to work since I submitted my Set(LR) application within the 2 weeks of my refusal. My understanding was that solicitors should know better but I have conflicting opinions from 2 different lawyers and I'm not sure which is right. Please could someone kindly advise whether I'm still allowed to work or not under the circumstances described above?

Many thanks in advance
Ambee

Your solicitor is correct. Your section 3C protection ended when you applied for a new application which makes you an overstayer and so you are not allowed to work. This is how it works: you apply in-time for an application (BEFORE your visa expiry) and wait for a decision. In the meantime the visa runs out and there is no decision yet, so as per immigration act section 3C provision, your lawful stay and conditions of your most recent visa continues until you get a decision. If you are refused, you are either given option for administrative review or appeal and as long as you follow those your section 3c continuous. However if you fail to overturn the decision when AR is refused or you exhaust all your appeal rights or if you choose to apply for a new application, then section 3C protection comes to an end and so you become an overstayer at that point.

While you can apply for a new application (out-of-time) within 14 days of becoming an overstayer BUT you remain an overstayer and have no right to work. The mistake in your case is that you should have varied the Tier 1G application to long residence when you were eligible. Remember that refusal under 322(5) also means that your long residence very likely will be refused too !

Thank you for your response Zimba, that really clarifies my doubts.

Hi All,

Please I'm desperately in need of the right advise.

I initially applied for ILR under the Tier 1 General rule which was refused on general grounds after which I submitted an in-time admin review which was also refused. At the time of refusal I had completed 10 years legal stay in the UK so I submitted a fresh in-time application under 10-year long residence route after my AR refusal. My 10-year long residence application was also refused on 20 Sept based on the same ground/reason my initial application was refused and I was given 14 calendar days to appeal the decision. My solicitor confirmed to me on Thursday 3rd Oct that he has submitted my appeal and I should get a letter in a couple of days to pay £140 for the court hearing, however I was surprised to receive a letter dated 1st Oct which says "NOTIFICATION OF GRANT/VARIATION OF IMMIGRATION BAIL TO A PERSON DETAINED OR LIABLE TO BE DETAINED" on 2 conditions:
1. You are NOT allowed to work
2. You must REPORT to an immigration official in the last week of October and every 4 weeks after that date until further notice

I quickly called my solicitor to find out what the letter was all about and he said there is nothing to worry about as it is just the standard letter HO sends out after the admin review refusal so I should make sure I take a copy of the appeal hearing payment request letter (well I'm now hoping I get it) to show them when I attend the immigration bail appointment.

As far as I'm aware I am not an over-stayer as my 10 years long stay is still valid but I'm worried because I'm not sure if my solicitor's information is correct as I've heard about cases where solicitors mess people up so I wanted to ask here the true meaning of this letter and whether I have anything to worry about or not.

Many thanks in advance
A.

You seem to be in denial despite the fact that you have been an overstayer as pointed out by your solicitor and as I explained above. You did NOT apply in-time for ILR and you were an overstayer since then. You also do NOT have 10 years of lawful stay. You are now also subject to removal and must report to HO as instructed. Follow up with the appeal and report as instructed

Hi Zimba,

Thank you for your response. Maybe I didn't understand when or how someone becomes an overstayer so can you shed more light on that? When my AR was refused HO said I must tell them within 14 days if I have reasons to stay in the UK that were not part of my recent application, which I did by submitting an in-time Set(LR) application. Secondly, how do I not have 10 years lawful stay if I applied under the 10 year rule in-time and my application was accepted? I'm confused and just want some more clarifications on why I received this letter if I have applied to appeal my refusal in good time.

Thanks
A.

I explained it very clearly above in Feb. You can apply within 14 days but that does not mean you are not an overstayer as your section 3C ends. In-time means applying when you still have valid visa

Hi Zimba,

Thank you for your response. My initial thought was that the new application only ends my section 3C and not make me an overstayer since I submitted an in-time Set(LR) application within 14 days of the previous refusal. Sorry I had to read through your previous answer to understand how I became an overstayer so that clarifies that now. But I'm not sure what you mean by "I did not apply in time for ILR". When my AR was refused HO said I must tell them within 14 days if I have reasons to stay in the UK that were not part of my recent application, which I did by submitting an in-time Set(LR) application. Why was my application accepted? I'm confused and just want some more clarifications on why I received this letter if I have applied to appeal my refusal in good time.

Thanks
A.

"In-time means applying when you still have valid visa"... I think I get it now. My solicitor messed this all up for me.

Thanks
A.

Just one more question please... what is or are the likely implications of this letter? Is it possible that I can be detained,arrested or forced out of the country when I attend the interview despite having a pending appeal to attend in court? I'm not asking you to tell me what would happen in my case but is it possible from other people's experience in similar scenario?

Thanks
A.

On Section 3C: https://assets.publishing.service.gov.u ... 9.0ext.pdf

Ambee wrote: ↑

Mon Oct 07, 2019 2:53 pm

"In-time means applying when you still have valid visa"... I think I get it now. My solicitor messed this all up for me.

Thanks
A.

You should have varied to SET(LR) before Tier 1 ILR refusal

Ambee wrote: ↑

Mon Oct 07, 2019 3:00 pm

Just one more question please... what is or are the likely implications of this letter? Is it possible that I can be detained,arrested or forced out of the country when I attend the interview despite having a pending appeal to attend in court? I'm not asking you to tell me what would happen in my case but is it possible from other people's experience in similar scenario?
Thanks
A.

You can be detained but HO generally will not seek to remove you until your appeal is concluded.

Hi Zimba,

I get all the points you have helpfully clarified and thanks for that, but you said earlier that “You also do NOT have 10 years of lawful stay”. Please can you clarify how this is so?

Many thanks
A.

Time spent as an overstayer is NOT lawful stay. You need 10 years of LAWFUL stay for ILR. Overstaying will only be discarded if it is between two periods of leave.

indefinite-leave-to-remain/ilr-10-years ... 81021.html

Thank you for your help and the clarifications Zimba... you are a star!

Regards
A.