Application to switch to 5 year refused

[StokieSteve]

Hi all. Any info on this matter is greatly appreciated.

My wife accidentally overstayed around 17 days (I know ) so was at the last application switched onto the 10 year route. It's now 2.5 years since. She's ready to apply again and try for the 5 year route. The overstay may count against her getting the 5 year route on grounds of suitability.

I understand if she's successful the counter on the 5 years route starts again. What is not 100% clear is if she is not granted the 5 year, but the 10 year again, does the counter also start again, or will the last 2.5 years still count towards the 10 years.

Believe it or not my solicitor cannot give me a definitive answer. Common sense says yes, but as it's different application she is not certain it will count as a continuation. She says you may not even have the answer until in 7.5 years you apply for the ILR and get granted/refused.

Anyone know any concrete info on this please.

Thanks in advance.

Steve.

[TODMATT]

Hi all. Any info on this matter is greatly appreciated.

My wife accidentally overstayed around 17 days (I know ) so was at the last application switched onto the 10 year route. It's now 2.5 years since. She's ready to apply again and try for the 5 year route. The overstay may count against her getting the 5 year route on grounds of suitability.

I understand if she's successful the counter on the 5 years route starts again. What is not 100% clear is if she is not granted the 5 year, but the 10 year again, does the counter also start again, or will the last 2.5 years still count towards the 10 years.

Believe it or not my solicitor cannot give me a definitive answer. Common sense says yes, but as it's different application she is not certain it will count as a continuation. She says you may not even have the answer until in 7.5 years you apply for the ILR and get granted/refused.

Anyone know any concrete info on this please.

Thanks in advance.

Steve.

Despite you know that overstaying will count against her, then it is highly unlikely you will be granted under the 5 years route based on the reason itself as she has no valid leave at the date of the application.

Immigration status requirements
E-LTRP.2.1. The applicant must not be in the UK-

(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings
E-LTRP.2.2. The applicant must not be in the UK –

(a) on immigration bail, unless:
(i) the Secretary of State is satisfied that the applicant arrived in the UK more than 6 months prior to the date of application; and
(ii) paragraph EX.1. applies; or
(b) in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.



paragraph 39E is rule which allow someone who has overstayed with apply within 14 days with good reasons but your partner has passed the 14 days period so you should consider applying under exceptional circumstances using EX1b and EX2.

EX.1." This paragraph applies if

(a)
(i) the applicant has a genuine and subsisting parental relationship with a child who-
(aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;
(bb) is in the UK;
(cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and
(ii) taking into account their best interests as a primary consideration, it would not be reasonable to expect the child to leave the UK; or
(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave, or humanitarian protection, in the UK with limited leave under Appendix EU in accordance with paragraph GEN.1.3.(d), or in the UK with limited leave as a worker or business person under Appendix ECAA Extension of Stay in accordance with paragraph GEN.1.3.(e), and there are insurmountable obstacles to family life with that partner continuing outside the UK.
EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner."

[vinny]

Moreover, an overstay of over 14 days may break her continuous residence under E-ILRP.1.3 and Long residence. Her qualifying period for ILR may reset again after she is granted leave.

Set reminders in multiple calendar apps?

If she didn’t overstay, then they may place her on the 5-year route, which will start from the grant of new leave.

If she is granted leave on the 10 year route, then she may include her last 2.5 years under the 10 year route, provided continuous residence is unbroken. The 10 year route may consists of continuous time spent on both 5 and ten year routes. However, the 5 year route cannot include time spent under the 10 year route.

[StokieSteve]

Thanks for your inputs.

Just to clarify, the overstay was 2.5 years ago. We did apply for the 2.5 year extension at that time on the 5 year route, but were granted the 10 year.

My understanding (admittedly limited) is that she may meet the criteria for the 5 year now as this time at time of application, she does have leave to remain. Are you saying the previous overstay will prevent them granting the 5 year route?

Thanks for confirming that the 2.5years she just completed can be used for the 10 year route if they choose to keep her on that route and refuse the 5 year.

[vinny]

My understanding (admittedly limited) is that she may meet the criteria for the 5 year now as this time at time of application, she does have leave to remain. Are you saying the previous overstay will prevent them granting the 5 year route?

Her past overstay shouldn’t prevent her from satisfying the requirements under the 5 year route.

[vinny]

However, she may also be unable to currently rely on 32D to satisfy the English Language requirements.

(but not where the application was refused, even if on grounds other than the English language requirement)