T1 Ent to ILR - strange situation

[ilruk84]

Dear All,

I am writing this on behalf of my cousin who varied his T1 Ent to ILR on the basis of 10 years which got refused. Below is his history and reason for refusal and his current situation,

- Came to UK in Oct 2006 on Student Visa
- Applied for extension on time in Oct 2007 for student visa and successfully granted
- Applied for another student visa extension on time in with valid visa in November 2009 but application sent back as rejected as payment was declined and he got the application back on 16th December
- Applied again in January 2010 1st week (he cant remember exact date as he doesn't have the posting receipt) and visa was granted on 10th Feb 2010
- Applied for PSW in time application in May 2011 and visa was granted for two years
- Applied for Entrepreneur visa within UK in May 2013 no news on application after that
- Varied his application from Entrepreneur to SET ILR in October 2016 as he completed his 10 years
- Refusal received on August 23rd 2017 with right of Appeal

Now the refusal says that in December 2009 his visa was rejected and from 16th December to 10th Feb he didn't have the valid visa so he passed 28 days time period as per home office record they received the application on 18 January 2010.

He has lodge the appeal but lost it case he went to JR which is currently pending, but here comes the strange part last month he received a letter from HO that his for T1 Ent is still pending because of complexity (dont have exact wording) which he thought could be sent to him by mistake so he ignored it but this Monday (14th Oct 2019) he received a call from case worker saying that they are still looking into this T1 Ent case which is pending and will contact him in due course so he told the CW about his whole situation and in reply CW said he not aware of of that and their system is still showing case in pending. After the conversation ended he called HO number to confirm and they said yes his case for T1 Ent is still pending.

Now we are not sure how this can be possible our understanding was that once case is varied your previous application is withdrawn and HO will consider your new application is this not true? Does anyone has any knowledge on any other similar kind of situation?

My cousin has spoken to his solicitor and he is suggesting him to withdraw his appeal and apply for fresh ILR application, he is saying that to vary it again by saying to HO that because his T1 Ent is pending they want to vary it to 10 years ILR again which I am not agreeing to because if HO finds out that his case was varied in past and he appealed on it and now he has withdrawn it he is over stayer hence he cannot vary it.

Any thoughts from anyone will be appreciated as this whole thing is very confusing?

Many Thanks

[zimba]

The refusal for ILR is correct as an application rejected as invalid is as if it was never made so his continuous residence seems broken. He had no valid leave between the expiry date of his student visa in late 2009 until 10th Feb 2010. If that gap is larger than 28 days, the lawful residence is broken.
Also you cannot have two pending applications. So given he sent an ILR and it was processed, this was variation of the pending Tier 1E application. He has to assume the Tier 1E case was withdrawn when he applied for ILR. HO will make this assumption about his case if they check the records and realise their mistake

[seagul]

- Applied for another student visa extension on time in with valid visa in November 2009 but application sent back as rejected as payment was declined and he got the application back on 16th December
- Applied again in January 2010 1st week (he cant remember exact date as he doesn't have the posting receipt) and visa was granted on 10th Feb 2010

Around 2008 when UKBA was formed with the merger of Border immigration agency & UK visas they started returning back the applications as invalid if the application is made on wrong version/form and/or made for wrong category, wrong format of photographs, fee cannot be deducted etc. Usually invalid applications aren't protected by section 3C despite submitted before expiry but in those days the UKBA used to give the options to apply back after correction within 28 days of receipt which in most cases keep maintained the section 3C. In op's case I think it shouldn't be a refusal rather his application had returned back as invalid and if he has that decision letter then he should also have been advised to apply back within 28 days. If that was the case then maybe ops continuous residence might not have broken.

[zimba]

That is incorrect. Regardless on what UKBA asked them to do, an invalid application was an invalid application. This was settled in the supreme court

[seagul]

It might be incorrect or irrelevant according to today's long residence guidance because it doesn't happens now as the postal applications can't be made. But there was a discretion which used to be asked in this situation which was mostly be exercised if that happens once during 10 years. If anyone here who was a long residence until 2010 then he must knew it. If I can recall then one moderator called Sushmedhta used to have pretty good knowledge over similar matters and if he is reading that then may confirm it. I personally know a lot who succeeded in getting UKBA's discretion in exact situation because other than that they kept maintaining their legal residence. Also when the application used to be returned as invalid then the option of reapplying within 28 days used to be given.

[ilruk84]

As per my cousin he didn't have any reason to delay the application and he reapplied in 1st week of January on 8th or 9th but he doesn't have any proof of postage.

So when he got the rejection Home office didn't have him chance to resend the payment details instead they rejected his application. The reason for payment to decline was that bank needed to block his card as they found suspicious transition from other part of the world and we think during the same time HO tried taking the money hence it got declined.

But my cousin recently called the bank and they have confirmed him in writing that there was no request from HO for transition for the money and it was only from his side thinking that bank might have tried to take the money and because his account was freeze for couple of days hence payment was decline.

His current solicitor/barrister has filed on JR on that basis that it was originally HO fault because there was no request for transition. At same time he is now saying to withdraw the case and apply for fresh SET LR application which I dont think is good idea which Zimba has also confirmed that HO will realise the system error soon and he will become overstayer if go for this option.