39E matter in court of appeal

[Sunny024]

Dear sirs ,
Home office refused my ilr (lr)on 17 November 2017.
Reason HO says that I’m an overstayer since 4th April as my appeals rights were exhausted and my final court of appeal decision came on 4th April 2017.

Time line of my applications :
October 2007 -entered UK as a student
Extended student visas until 2012 without any gaps
March 2012 applied psw visa and was refused in may 2013,challenged the decision and was allowed right to appeal and appeals went on and ended on 4th April 2017 and I was just 5months short of my 10years .
My solicitor advised me to make an intime (14days)application so I applied Flr (lr)on 7th April 2017 and varied it with ILR (lr)on 26 June 2017,submittedbmy biometrics on 15october 2017 and visa was refused on 17 November .

Solicitor says ,HO made an error as I made an intime (14 days )application on 7th April .
Not sure if solicitor is right or HO is wrong ,.dreams are shattered

Please give some advice if anyone has come across a situation like this before .

Regards
Sunny

[zimba]

Your solicitor is wrong. When you exhaust your appeal rights, your section 3C ends and you become an overstayer. Your lawful residence clock also stops there. It is irrelevant that you submitted a new FLR application within 14 days, that period will not count towards long residence

[Sunny024]

Thanks for your response.

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(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.


Last point (iv)says you have 14 days after appeal rights exhausted to make an application to prevent from overstaying . Am I missing something here .?

[zimba]

This paragraph applies to your application being valid but that does not change your status as an overstayer. You have been overstaying since 4th April 2017.
The 39E in fact was applied to your case. Your FLR application (varied to ILR) was accepted as valid as it was made within 14 days of appeal refusal, however you did not have 10 years of lawful residence under SET(LR) and that is why your ILR was refused. It is true that the rules allow such a period of overstaying to be ignored but only if you regularise your leave; for example if instead of FLR, you successfully switched to Tier 2. Then any period of overstaying between April and Nov 2017 would have been ignored and you could have applied for SET(LR) without any issues afterwards.

[Sunny024]

Thanks for your prompt response .

I think it’s time to pack bags!

[Sunny024]

Thanks for your prompt response

[Obie]

I don't think the Home Office was right on this one, even though section 3C dont appear to be engaged, application was made, it would seem, within the concession period I believe. It is clearly worth pursuing.

[Sunny024]

That is what my solicitor says, he has proofs of previous applicants who was granted visas where they had same issues like me ,he says he will use that as evidence in court .
Thanks for your reply sir

[awan123]

That is what my solicitor says, he has proofs of previous applicants who was granted visas where they had same issues like me ,he says he will use that as evidence in court .
Thanks for your reply sir

Hi
My case is similar like you and my appeal will be heard in Jan 2017.
Last year my friend applied for ILR 6 months before completing the 10 years after all his appeal rights were exhausted ( section 3c ended) and he got visa. It is upto case worker how he/she deals with your case.
I have seen couple of posts on this forum where with similar casses won their appeals. So don't give up and fight your case. Also if you please ask your solicitor if there is any evidence he can provide will help me in my case. Thanks

[Sunny024]

Hi
When did you apply for appeal and how long you waited ?I applied two days ago and solicitor said it might take up to one year to get hearing date .
Please let me know how it goes after hearing takes place .
I don't think we can share details here .not sure how to get in touch with you to discuss further ?

[Obie]

Information and law can be shared on open forum so long as it is lawful.

Names of firm or individual at a firm will not be permitted under any circumstances.

[awan123]

Hi
When did you apply for appeal and how long you waited ?I applied two days ago and solicitor said it might take up to one year to get hearing date .
Please let me know how it goes after hearing takes place .
I don't think we can share details here .not sure how to get in touch with you to discuss further ?

Hi,
I lodged appeal in Sep 2016 and will be heard in Jan 2018. Its a long wait. I will update you about my case. You can send me your phone number through private message after completing 20 posts on this forum. Thanks

[CR001]

Hi
When did you apply for appeal and how long you waited ?I applied two days ago and solicitor said it might take up to one year to get hearing date .
Please let me know how it goes after hearing takes place .
I don't think we can share details here .not sure how to get in touch with you to discuss further ?

Hi,
I lodged appeal in Sep 2016 and will be heard in Jan 2018. Its a long wait. I will update you about my case. You can send me your phone number through private message after completing 20 posts on this forum. Thanks

Members are reminded that the PM privilege can be withdraw permanently. Also please remember that everyone on the forum is a stranger and that there are many scammers and spammers who visit the site and post!

[Sunny024]

Hi
When did you apply for appeal and how long you waited ?I applied two days ago and solicitor said it might take up to one year to get hearing date .
Please let me know how it goes after hearing takes place .
I don't think we can share details here .not sure how to get in touch with you to discuss further ?

Hi,
I lodged appeal in Sep 2016 and will be heard in Jan 2018. Its a long wait. I will update you about my case. You can send me your phone number through private message after completing 20 posts on this forum. Thanks




That’s a vey long wait like 16 months ,very unusual ,why it took so long to get a lower tribunal date .
Let’s stay in touch

Thanks

[akas83]

Dear sirs ,
Home office refused my ilr (lr)on 17 November 2017.
Reason HO says that I’m an overstayer since 4th April as my appeals rights were exhausted and my final court of appeal decision came on 4th April 2017.

Time line of my applications :
October 2007 -entered UK as a student
Extended student visas until 2012 without any gaps
March 2012 applied psw visa and was refused in may 2013,challenged the decision and was allowed right to appeal and appeals went on and ended on 4th April 2017 and I was just 5months short of my 10years .
My solicitor advised me to make an intime (14days)application so I applied Flr (lr)on 7th April 2017 and varied it with ILR (lr)on 26 June 2017,submittedbmy biometrics on 15october 2017 and visa was refused on 17 November .

Solicitor says ,HO made an error as I made an intime (14 days )application on 7th April .
Not sure if solicitor is right or HO is wrong ,.dreams are shattered

Please give some advice if anyone has come across a situation like this before .

Regards
Sunny

One of my friends had a similar situation, I think the HO made a mistake as your FLR application was pending when you completed 10 years, so it means you have completed 10 years lawfully. Just get a good lawyer and you should win the appeal. Hope this helps

[Sunny024]

Thanks ,I varied my flr and submitted ILR but decision was taken after completing my 10years

[Sunny024]

Hi
When did you apply for appeal and how long you waited ?I applied two days ago and solicitor said it might take up to one year to get hearing date .
Please let me know how it goes after hearing takes place .
I don't think we can share details here .not sure how to get in touch with you to discuss further ?

Hi,
I lodged appeal in Sep 2016 and will be heard in Jan 2018. Its a long wait. I will update you about my case. You can send me your phone number through private message after completing 20 posts on this forum. Thanks




That’s a vey long wait like 16 months ,very unusual ,why it took so long to get a lower tribunal date .
Let’s stay in touch

Thanks

Dear swan,
Do you have any update on your hearing ?

[sanshah]

Hi Sunny 024!
I have exactly in the same situation like u varied my Flr fp file to LR. Which got refused and given right of appeal. Whats up with ur case ?

[Sunny024]

Hi Sunny 024!
I have exactly in the same situation like u varied my Flr fp file to LR. Which got refused and given right of appeal. Whats up with ur case ?

Hi
Sorry to hear about your case.
I have hearing in August .
Could you elaborate your case ..?

[sanshah]

My Tier 1 G got refused on 25 May 2017 and so as my Admin Review which came out negative on 4th of July 2017, i was 2 months short of 10 years LR, my solicitor advised me to file FLR FP to cover these 2 months, when i reached my 10 years period i varied my FLR Fp to LR on 31 Aug 2017. Bio met was done in Oct, mid of dec HO send me the similar questionnaire and requested the same financial documents which they already asked me to send when i applied ILR through tier 1 G anyways I did send all these requested docs and questionnaire in early jan 2018, within 2 weeks HO send me the refusal letter which was stated as I do not qualify for 10 years LR beacuse my current application is out of time. Well basically they said I am not covered under section 3c, they did accept the time from my first entery in Uk which was on 22 sep 2007 to 4th july 2017 when my admin review got rejected. Even though my FlrFp application was within the 14 days but still HO did not consider that and they call it out of time application. I got refusal under 276 i and given right of appeal.

[Obie]

They are correct that you did not have section 3C, but they were wrong to say long residence was broken.

[Sunny024]

Dear Obie ,
10 years rule says ,you need to have continues leave until you reach qualifying period. If 3c is broken that means your continuity is gone.does it mean home office has done a mistake and there's a chance of winning the case in court then?
My solicitor said we made in time application and HO is wrong .

[Obie]

It is a bit hard to makes sense of your appeal, but i wish you all the best with it.

[Sunny024]

Sanshah ,
What do you think the chances are ?i appealed in November 17 and got hearing in aug 18.long waiting times , solicitor says it's just a matter of time until you get your ilr ,HO was wrong etc . Not sure who to believe and what's the future is

[sanshah]

My solicitor is also pretty much optimistic about my case, but i m not sure, i think its their job and source of earning thats why they have to show some positivity towards clients cases. Case workers sitting in HO are not daft they must be well aware of all the rules. Anyways on the positive side I heard some cases were in the favor of applicants once they get right of appeal or go through JR, there is little bit of hope when applicants case presented in front of honourable judge, it all depends how strong is the bundle of evidence and how strong the arguments are. To be honest i am very confuse, if according to my case worker I m not covered under section 3c so on what basis i have been given right of appeal, I dont have any deception on my case not any other allegations its just 3c and out of time application. What was in his mind which allowed him to give me right of appeal and on what basis he thinks i can fight my case...