Im still in shock ( 3C leave)

[jaberdene]

Application for visa extension was made 10/04/2009 (the leave ended on 15/04/2009). It was in time , valid application and refused 15/05/2009. no appeal was brought. Instead , I reapplied on 22/05/2009 and granted new leave on 30/05/2009.
Ive asked severel times over forums when 3C leave might have ended in my case? Then alot people said it ended on the day the application refused which is in my case 15/05/2009. Today I asked it from UKBA through email and received completely different answer. He said as my application refused and no appeal was brought so the 3C leave is not counted as lawful. Even he said I had long gap from 15/04/2009 to 30/05/2009. Therefore my ILR of long residence application will unlikely be successful. SHOCK.

any comment on this please

See below wat he sent to me.
3c leave is the provision that entitles an applicant (when an in time application is made) to remain in the UK until such time as the application is decided. If the decision is to refuse then it is deemed that the applicants leave ended when their last period of leave was valid until, in your case this was 15/04/2009.

[Greenie]

Which department did you email? Whoever replied is talking complete nonsense. If this were true then anyone who makes a postal application which is refused and who doesn't appeal would end up overstaying for over 28 days. The law does not distinguish between successful and unsuccessful applications when it comes to 3c leave. In the scenario you mention, where you are refused with a right of appeal, but you don't appeal, section 3c leave expires with your deadline to appeal, e.g. Usually 10 working days after receipt of the decision.

[wpilr_nov12]

This is the available document on 3C/3D. http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Header 8, para 3 (page 5) explicitly states "If no appeal is brought in time, leave to remain which is extended by 3C or 3D will
lapse. If an out of time appeal is accepted by the Tribunal, leave is extended until the
appeal is finally determined, withdrawn or abandoned", without specifying if the leave lapses after the extended 3C leave+10 days (which is referred to in para 2 of the same section of the document), or at the date when the 'visa' expires.

[jaberdene]

Which department did you email? Whoever replied is talking complete nonsense. If this were true then anyone who makes a postal application which is refused and who doesn't appeal would end up overstaying for over 28 days. The law does not distinguish between successful and unsuccessful applications when it comes to 3c leave. In the scenario you mention, where you are refused with a right of appeal, but you don't appeal, section 3c leave expires with your deadline to appeal, e.g. Usually 10 working days after receipt of the decision.

Ive sent to this email address. SettlementOpsPolicy@homeoffice.gsi.gov.uk

found it from this forum.

I still cant beleive I received such answer.

[wpilr_nov12]

Which department did you email? Whoever replied is talking complete nonsense. If this were true then anyone who makes a postal application which is refused and who doesn't appeal would end up overstaying for over 28 days. The law does not distinguish between successful and unsuccessful applications when it comes to 3c leave. In the scenario you mention, where you are refused with a right of appeal, but you don't appeal, section 3c leave expires with your deadline to appeal, e.g. Usually 10 working days after receipt of the decision.

Ive sent to this email address. SettlementOpsPolicy@homeoffice.gsi.gov.uk

found it from this forum.

I still cant beleive I received such answer.

I would write a followup query, mentioning the specific clauses in my earlier mentioned 3C document.

[jaberdene]

Which department did you email? Whoever replied is talking complete nonsense. If this were true then anyone who makes a postal application which is refused and who doesn't appeal would end up overstaying for over 28 days. The law does not distinguish between successful and unsuccessful applications when it comes to 3c leave. In the scenario you mention, where you are refused with a right of appeal, but you don't appeal, section 3c leave expires with your deadline to appeal, e.g. Usually 10 working days after receipt of the decision.

Ive sent to this email address. SettlementOpsPolicy@homeoffice.gsi.gov.uk

found it from this forum.

I still cant beleive I received such answer.

I would write a followup query, mentioning the specific clauses in my earlier mentioned 3C document.

Below is 1st email I recieved from him

Dear XXXXXX,

Having looked more closely at your records the period in question is 29 days. As this is in excess of the permitted 10 days it is unlikely that an application for settlement under the 10 long residence rules would be successful.

Regards

Settlement Ops policy.
MR

then I sent him saying my3C leave should end on my refusal day and recieved 2nd email from him.

and Below is 2nd email I recieved from him

Dear XXXXXX,

3c leave is the provision that entitles an applicant (when an in time application is made) to remain in the UK until such time as the application is decided. If the decision is to refuse then it is deemed that the applicants leave ended when their last period of leave was valid until, in your case this was 14/05/2009. Subsequently your latest application is deemed to be 29 days out of time.

I hope this clarifies the matter

Regards

Settlement ops policy
MR

[Tier 4]

This is the available document on 3C/3D. http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Header 8, para 3 (page 5) explicitly states "If no appeal is brought in time, leave to remain which is extended by 3C or 3D will
lapse. If an out of time appeal is accepted by the Tribunal, leave is extended until the
appeal is finally determined, withdrawn or abandoned", without specifying if the leave lapses after the extended 3C leave+10 days (which is referred to in para 2 of the same section of the document), or at the date when the 'visa' expires.

The way you interpreting it, it should say;
If no appeal is brought in time, leave to remain which was extended by 3C or 3D will lapse.

Technically they are correct;
If no appeal is brought in time, leave to remain which is extended by 3C or 3D will laps.

Means you were under protection of 3C leave but will not anymore.

[wpilr_nov12]

Which ....

Ive sent to this email address. SettlementOpsPolicy@homeoffice.gsi.gov.uk

found it from this forum.

I still cant beleive I received such answer.

I would write a followup query, mentioning the specific clauses in my earlier mentioned 3C document.

Please do that, but choose different date. (Ive chosen made-up dates just to get an answer from them, but scene was same like: application made, leave ended, and application refused, no appeal was brought, reapplied within 10 days, and got visa.)

...

...

In the above context, the I would means if I were you, I would do this... not that I am going to do it for you, in case you are waiting for some outcome from me.

[jaberdene]

In the above context, the I would means if I were you, I would do this... not that I am going to do it for you, in case you are waiting for some outcome from me.

Misunderstood sorry, I will do that.
cheers,

[jaberdene]

This is the available document on 3C/3D. http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Header 8, para 3 (page 5) explicitly states "If no appeal is brought in time, leave to remain which is extended by 3C or 3D will
lapse. If an out of time appeal is accepted by the Tribunal, leave is extended until the
appeal is finally determined, withdrawn or abandoned", without specifying if the leave lapses after the extended 3C leave+10 days (which is referred to in para 2 of the same section of the document), or at the date when the 'visa' expires.

The way you interpreting it, it should say;
If no appeal is brought in time, leave to remain which was extended by 3C or 3D will lapse.

Technically they are correct;
If no appeal is brought in time, leave to remain which is extended by 3C or 3D will laps.

Means you were under protection of 3C leave but will not anymore.

you are saying that my leave actually ended on the day the application refused?

[jaberdene]

If no appeal is brought in time, leave to remain which is extended by 3C or 3D will lapse.

it is "IS" rather than "WAS" in the 3C description.

what does the "lapse" mean in this sentence?

is it end, or stop, or ignore, or something else?

[wpilr_nov12]

If no appeal is brought in time, leave to remain which is extended by 3C or 3D will lapse.

it is "IS" rather than "WAS" in the 3C description.

what does the "lapse" mean in this sentence?

is it end, or stop, or ignore, or something else?

Debating linguistics on this forum is going to serve no purpose.

Your question is best answered by UKBA. You can 1. ask them for clarification, or 2. challenge their interpretation. You will need a solicitor to be with you, esp on the second option.

You can slice and dice the law as much as you like here on this forum, and up to the point where someone says something that is particularly suitable to you in your circumstances. But that is neither going to define/redefine any law/regulation/policy.

[jaberdene]

If no appeal is brought in time, leave to remain which is extended by 3C or 3D will lapse.

it is "IS" rather than "WAS" in the 3C description.

what does the "lapse" mean in this sentence?

is it end, or stop, or ignore, or something else?

Debating linguistics on this forum is going to serve no purpose.

Your question is best answered by UKBA. You can 1. ask them for clarification, or 2. challenge their interpretation. You will need a solicitor to be with you, esp on the second option.

You can slice and dice the law as much as you like here on this forum, and up to the point where someone says something that is particularly suitable to you in your circumstances. But that is neither going to define/redefine any law/regulation/policy.

you are right,

[Tier 4]

If no appeal is brought in time, leave to remain which is extended by 3C or 3D will lapse.

it is "IS" rather than "WAS" in the 3C description.

what does the "lapse" mean in this sentence?

is it end, or stop, or ignore, or something else?

Frequently Asked Questions
What is my immigration status while my application is being decided?

If you make an application before your authorised stay ends, your existing immigration status will continue until your application is decided, even if the decision is not made until after the end of your permitted stay. If your existing visa or other permission to stay here allows you to work, you can continue to do so until your case is decided.

Source:
http://www.ukba.homeoffice.gov.uk/visas ... ding-stay/

[jaberdene]

If no appeal is brought in time, leave to remain which is extended by 3C or 3D will lapse.

it is "IS" rather than "WAS" in the 3C description.

what does the "lapse" mean in this sentence?

is it end, or stop, or ignore, or something else?

Frequently Asked Questions
What is my immigration status while my application is being decided?

If you make an application before your authorised stay ends, your existing immigration status will continue until your application is decided, even if the decision is not made until after the end of your permitted stay. If your existing visa or other permission to stay here allows you to work, you can continue to do so until your case is decided.

Source:
http://www.ukba.homeoffice.gov.uk/visas ... ding-stay/

do you think this current rule apply back in 2005?

[Greenie]

Well yes because this 'rule' is section 3C. If you take a look at the legislation itself you will see that your leave will have lapsed (ie ended) when your deadline to appeal expired as explained above.

http://www.legislation.gov.uk/ukpga/1971/77/section/3C

[rasellittle]

"leave will have lapsed (ie ended) when your deadline to appeal expired as explained above. " this is in 3C, which is very correct. but when the application is refused instead of exercising the appeal right, if someone applies freshly again then the person is still under 3C leave or not? There is nothing mentioned in that 3C document about this. when the latest visa has already expired, a new application is considered as in-time application or not? May be this is the aspect of this case is crucial. Bcoz i am having the same problem. and i was told 50/50 in this forum.

[wpilr_nov12]

"leave will have lapsed (ie ended) when your deadline to appeal expired as explained above. " this is in 3C, which is very correct. but when the application is refused instead of exercising the appeal right 3C lapses, you are no longer protected by 3C, you automatically become an overstayer, if someone applies freshly again then the person is still under 3C leave or not? There is nothing mentioned in that 3C document about this. when the latest visa has already expired, a new application is considered as in-time application or not? No. That is the whole point about in-time application May be this is the aspect of this case is crucial. Bcoz i am having the same problem. and i was told 50/50 Law/Rules/Regulations are not matter of chance in this forum.

[/b]

[jaberdene]

you are no longer protected by 3C, you automatically become an overstayer

I agree that, but from what date the applicant starting to become overstayer?

from original leave expire date or from application refused date?

[vinny]

(2)The leave is extended by virtue of this section during any period when—

(a)the application for variation is neither decided nor withdrawn,

(b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought [F2, while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c)an appeal under that section against that decision [F3, brought while the appellant is in the United Kingdom,] is pending (within the meaning of section 104 of that Act).

Agree with Greenie. The word "could" is used. Not "must" nor "should". Followed by the "or".

[jaberdene]

(2)The leave is extended by virtue of this section during any period when—

(a)the application for variation is neither decided nor withdrawn,

(b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought [F2, while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c)an appeal under that section against that decision [F3, brought while the appellant is in the United Kingdom,] is pending (within the meaning of section 104 of that Act).

Agree with Greenie. The word "could" is used. Not "must" nor "should". Followed by the "or".

Hi
Why Im worried about it now is apparantly There was no appeal given to me when my application refused. I used to think everybody have a right to appeal against refusal decision. Ive just realized now I didnt receive any letter that I can appeal against the decision. Refusal letter just said my appeal against the decision is LIMITED.
Ive just resubmitted the application with cover letter within 10 days and granted future leave. Without appeal the whole scenaria would be different I think.
But SAR GCID case record sheet said REFUSE LTR -R.O.A(right of appeal) under OUTCOME ACTION, then again in next page it said "The application falls for REFUSAL - short courses , over 2 years - no RoA" under Minute/Case Notes section. Also there is list of all application I made. In that list it said REFUSE L.T.R - R.O.A

So how this refusal affect ILR application?

[vinny]

On what basis did they say you had limited rights of appeal?
Did you apply after expiry of leave?

[jaberdene]

On what basis did they say you had limited rights of appeal?

as for the first application I applied 1 year course which was treated as short course. I have already undertaken short courses for 2 years then. In those days there was rule of student cannot study short courses more than 2 years.
In refusal letter , since I was applying again short course , Im seeking to be in UK for a period longer than is permitted by immigration rules [section 88(2)c], Therefore , my right of appeal this decision under 82(1) of the Nationality Immigration and Asylim Act 2002 is limited by operation of section 88 of this Act.

Did you apply after expiry of leave?

No, initial application was in time and valid application.
Also resubmiited (2nd) application SAR sheet stated that the 2nd application was valid application as well and didn't mention anything about the 2nd application was out of time . The 2nd application exactly same as first application but course period.

I met a immigration adviser regarding this issue and he only read 2nd application SAR sheet and said it didnt say 2nd application was out time, and I resumbitted within 10 days after initial application refused then I will be fine. Thats what he said to me. Also if I asked why the appeal is limited then he said to me its always limited,

CHEERS