Indefinite Leave to Remain – Immigration

Lawful & Continuous Residence Issues Resolved, a great success!

United Kingdom – Indefinite Leave to Remain – Long Residence Category.

INTRODUCTION

When we first met our client, he had spent 9 years and 5 months in the UK and was considering his upcoming eligibility to apply for indefinite leave to remain under the long residence category. When the client approached us, his status was very much precarious. He was on ‘section 3C leave’ following an appeal that he had filed against the refusal of an application for further leave to remain. Due to his health condition, he failed to attend to the appeal hearing. As expected, within a few weeks our client received the decision that his appeal had been dismissed and thus ending his legal stay in the UK.

NEXT STEPS

Our first step was to challenge the First-tier Tribunal’s decision, based on our client’s serious health condition and the effect it had had on his ability to prepare and attend to the court hearing. However, that appeal was also dismissed. Upon our advise, client applied for permission to appeal to the Upper Tribunal. This allowed his section “3C” leave to run and at the same time, he was able to work.

Our client had spent 9 years and 10 months in the UK by this time and his ability to exercise a human rights claim under Article 8 and private life grounds were becoming more feasible.

CHALLENGES

However, even if he had met the 10 years continuous and lawful residence requirement, he would not qualify for indefinite leave to remain, unless he had successfully completed the Life in the UK Test. Our client’s passport was retained by the Home Office and it had further expired.

The Life in the UK test centre confirmed that applicants can take the test with an expired passport provided they have the original. Our next task was to get the original passport returned from the Home Office. This proved to be a very difficult challenge, as we failed to get a timely and appropriate response. A certified copy (not the original) of our client’s passport was eventually received, but the test centre refused to accept it without direct and prior notice and confirmation from the Home Office that our client has been authorized to take the test using the certified copy.

Having now spent almost 9 years and 11 months in the UK, and as the Home Office’s policy guidance allowed for settlement applications to be made up to 28 days prior to the date of completing the 10 year qualifying period, he was on the cusp of meeting the residence requirement for settlement. However, despite further correspondences chasing for the original passport to be returned, the home office failed to respond which resulted in escalation of our formal complaint.

FRESH CLAIM

Given the time taken by the Home Office, our client was worried that his lawful residence in the UK would end if he received a bad decision from Upper Tribunal. We advised our client that certain human rights fresh claims could be submitted, whilst an appeal was pending and therefore allowing him to be on section 3C leave. This was in contrast with most other types of applications, which under the Immigration Act 1971, cannot be made or varied whilst an appeal is pending and the applicant is on section 3C leave. Whilst, our client’s appeal to upper tribunal was still pending, a fresh human rights claim was also submitted to the home office.

FURTHER CHALLENGE TO INDEFINITE LEAVE TO REMAIN

Few days later after the fresh claim, we received the decision from the Upper Tribunal that our client’s appeal had been dismissed and that there were no further rights of appeal, thus bringing our client’s lawful stay in the UK to an end. As a result he fell short of meeting the long residence requirements by just 10 days. The courts had made it clear that there was no ‘near miss principle’ under the long residence rules, and so there was very little room for discretion that could be exercised by the home office.

We advised our client that there was still an arguable point based on the fresh claim that was submitted prior to the above decision and that hope was not lost. With the submission of a valid fresh claim and whilst he had valid section 3C leave, the question before the Home Office was whether our client’s fresh claim would extend his 3C leave beyond the date his appeal was finally determined. If the answer was yes, then our client by submitting the fresh claim would satisfy the 10 years lawful and continuous residence requirement only if he managed to bridge the 10 days gap. If he did, then he could vary the fresh claim in to a settlement application and of course once he completed the life in the UK test.

There was no doubt that he had satisfied the continuous residence requirement, but we needed to demonstrate that he also met the lawful residence requirement. During this time, we also received a response to our complaint, and the Home Office facilitated the process for our client to take the test, which he did successfully. Now that we had all of the required documentation in place, we proceeded to draft a detailed representation along with another application explaining the circumstances and basis upon which our client was eligible to be granted indefinite leave to remain under the long residence category.

FINAL DECISION

Our client opted for a super priority service to submit his application, and on the day of his appointment he had been in the UK for 10 years and 1 month. The following day after the appointment, we received the fantastic decision that our client’s application had been successful and he was granted indefinite leave to remain in the UK. Our client was in full of happy tears and over the moon, as the decision meant that he was able to continue with his private and work life that he had established in the UK over the past 10 years. He could also continue to receive the specialist care that he needed to treat his health condition in the UK and at the same time able to travel and visit his family who had not seen him for over 10 years.

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As a law firm specialising in complex Private and Corporate Immigration matters, we are able to advise on issues faced by both businesses and individuals and provide them with professional and able assistance to resolve those complex issues.

Please do not hesitate to call us on 020 7499 0620 or by email email@marsans.co.uk.

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