Hi Gurus,
let me explain the whole stort as I got the refusal copy of her ILR LR.
Immigration History
On 5 April 2014 you entered the UK with leave to enter as a
Tier 1 partner valid until 30 July 2014.On 5 July 2014 you submitted an in time application for leave
to remain as a Tier 1 dependent partner. On 27 April 2015 your application was refused. On 13 May 2015 you lodged an in time appeal. On 14 June 2015 the appeal was dismissed at first tier. On 12 February 2016 your permission to appeal to first tier was refused and on 17 March 2016 your permission to
appeal to the upper tier was also refused. On 17 March 2016 your appeal rights exhausted.
On 21 June 2016 you submitted an out of time application for leave to remain under the family and private life route. On 26 February 2018 your application was refused with an out of country right of appeal. On 6 March 2018 you lodged an in time appeal in which the outcome of your application was reconsidered. On 23 May 2018 we refused your application with an in country right of appeal. On 26 October 2018 you
submitted an out of time appeal and the outcome of your application was reconsidered. On 16 January 2020 you were granted leave to remain under the family and private life route valid until 16 July 2022.
On 12 July 2022 you submitted an in time application for leave to remain under the family and private life route. On 23 February 2023 you were granted leave to remain valid until 27 August 2025.On 8 April 2024 you submitted an in time application for Indefinite Leave to Remain on the basis of 10 years long
residency.
Reasons you do not qualify for a grant of indefinite leave to remain
On 8 April 2024 you made an application for indefinite leave to remain on the basis of meeting the requirements of paragraph 276B of the Immigration Rules and on the basis of your family and private life in the United Kingdom under the Immigration Rules.Your application has been considered under the Immigration Rules, including the partner and private life rules and the basis of exceptional circumstances, which can be viewed on gov.uk at the following address:
www.gov.uk/government/collections/immigration-rules
Your application has been considered on the basis of your long residence under Paragraph 276B of the Immigration Rules.
Paragraph 276B
276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in
the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence
in the United Kingdom.
(ii) having regard to the public interest there are no reasons
why it would be undesirable for him to be given indefinite
leave to remain on the ground of long residence, taking into
account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations
and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person’s behalf; and
(iii) the applicant does not fall for refusal under the general
grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –
(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or
(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.
276A. For the purposes of paragraphs
276B to 276D
(a) “continuous residence” means residence in the United Kingdom for an unbroken period, and for these purposes a period 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 in
question has existing limited leave to enter or remain upon their departure and return, but shall be considered to have been broken if the applicant:
(i) has been removed under Schedule 2 of the 1971 Act, section 10 of the 1999 Act, has been deported or has left the United Kingdom having been refused leave to enter or remain here; or
(ii) has left the United Kingdom and, on doing so, evidenced a clear intention not to return; or
(iii) left the United Kingdom in circumstances in which he could have had no reasonable expectation at the time of leaving that he would lawfully be able to return; or
(iv) has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an institution other than a prison (including, in particular, a hospital or an institution for young offenders), provided that the sentence in question was not a suspended sentence; or
(v) has spent a total of more than 18 months absent from the United Kingdom during the period in question.
(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain, except this cannot include
time with entry clearance or permission under Appendix V:
Visitor, Appendix Short-term Student (English language), or
Appendix Temporary work – Seasonal Worker; or
(ii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) “lawful residence” does not include time spent on immigration bail (including time spent with temporary admission and temporary release)
Section 3c
The purpose of section 3C leave is to prevent a person who makes an in-time application to extend their leave from becoming an overstayer while they are awaiting a decision on that application and while any appeal or administrative review they are entitled to is pending. Home Office Published guidance on Leave extended by section
3c states:
When section 3C applies
This section explains when a person’s leave is extended by
section 3C of the Immigration Act 1971. Pending decision on
application
A person will have section 3C leave if:
• they have limited leave to enter or remain in the UK
• they apply to the Secretary of State for variation of that leave
• the application for variation is made before the leave expires
• the leave expires without the application for variation having
been decided
• the application for variation is neither decided nor
withdrawn
Consequently, where an application is submitted or attempted to be submitted after the expiry of a period of lawful leave, it is deemed to be “out of time” and does not engage section 3C.
Consideration
Consideration has been given to your immigration history listed above and all evidence submitted along with your application dated 8 April 2024. We are satisfied that you have held lawful leave from your
entry into the UK on 5 April 2014 until 17 March 2016 when your appeal rights exhausted this being a period of 1 year, 11 months and 12 days and from 16 January 2020 when you were granted leave to remain under the family and private life route until date of consideration this being a period of 4 years, 5 months and 10 days.
We are not satisfied that you have held continuous residence in the UK as described in paragraph 27B(i)(a) as you have a break in lawful leave from 17 March 2016 when your appeal rights exhausted until 16 January 2020 when you were granted leave to remain under the family and private life route. It is considered that your lawful leave has been broken at this point.
For the reasons outlined above, your application for indefinite leave to remain on the grounds of long residence is refused as you have failed to meet the requirements of the Immigration Rules under Paragraph 276D with reference to Paragraphs 276B(i)(a) of the Immigration Rules.
A consideration has been given to whether your circumstances are exceptional or significantly compelling to warrant discretion being exercised in your favour to grant you settlement on an exceptional basis.
You have not provided any reasons why your application of 21 June 2016 was submitted out of time therefore there is nothing to be considered.
You are currently on a route to settlement on the basis of your family life as a partner for which you currently have extant leave remaining until 27 August 2025.
In line with Section 55 of the Borders, Citizenship, and Immigration Act 2009, you can legitimately remain in the UK following refusal of this application without any adverse effects to your children’s welfare given you have extant leave to remain.
It has not been evidenced that your circumstances are so exceptional to warrant you being issued settlement at this time rather than satisfying the above requirements under the rules or to be issued settlement prematurely rather than progressing through the probationary period of your current
leave category.
It is not deemed refusal of this application negatively affects your ability to remain in the UK.
Please note, you are not required to leave the UK as a result of this decision as you have valid leave to remain valid until 27 August 2025.
Should you wish to remain in the UK after this date you should make an appropriate charged application to do so. The earliest you should apply is 28 days before your current leave expires.
----------------------------------------------------------------------------------------------------
My questions:
Below are the dates during this case:
FTT REFUSAL 9 FEB 16
UT REFUSAL 4 MAR 16
UT REFUSAL 17 MAR 16
JR SUBMITTED 4 APR 16
JR REFUSAL 24 MAY 16
1- Has she broken the 3C after JR refusal ?
2- As she is on a partner route from 2020 is that mean she only can apply for ILR in 2030 ? or is there any way out for early ILR ?
3- If she was to apply for ILR in 2030 how the holidays will be counted? from 2020 - 2023 she was out of UK max 60 days but in 2024 she went abroad for 167 days from 23 June 24 - 9 Nov 24. Now we are planning to go abroad say 10 June 2025 for 60 days can she go ? will it effect on her 2030 application?
Regards
Ashak
