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Thanks for your response
Its just that a few people i know in similar situations have had problems with this for ilr. Thing is, and thats something we can all agree on. If 'second application ' was refused at any 1 time, i wouldnt have had the right of appeal. So we know for sure ukba is treating the 'second application' as out of time. The main issue is how do you count the days gap: on the long residence guidance it says:
If a person submits an out-of-time application, they will have a gap in continuous lawful residence, from the date their leave expired until the date they are next granted leave, regardless of how long it takes for the decision to be made. For an example of this, see example 5 in related link: Examples of continuous lawful residence.
Theres a lot of caselaw on this and it is a grey area. Theres other statutes immigration (2008) for cases before 2008 which states that if reeturned within 28 days it shouldnt be termed as invalid. But also other cases where a strict interpretaion as above has been applied depending on caseworker who is going to look at my immigration history. I have ordered my sar from home office. Do you think i should get legal assiatnce or try to do it myself? and what are my chances? thanks
I advise based not only on the rules but the practical application of those rules based on large numbers of applications.
You are allowed to submit an application within 28 days of a visa expiring. The discussion comes down to what is considered to be the expiry date where an application was submitted 'in time' and the Home Office took their time to make a decision - in other words, the applicant's visa has expired, sometimes by quite a considerable amount of time, due to the time taken by the Home Office. The applicant should not be penalised for this and therefore it has been accepted for quite some time that if an application is returned to the applicant, invalid or refused, then the applicant will normally be allowed to quickly submit a new application. This is a key point.
I have known many applications like this and have not personally had any refused for this reason.
Right of appeal is usually determined simply by whether or not the applicant has valid leave to remain at the time of a refusal being issued (put in simple terms). You also need to be careful when drawing conclusions from other people's experiences - very often people are refused for reasons that are not exactly the reasons that they think they have been refused for. I'm not saying that this is the case in the examples you mention but it does happen, in the same way as people get approved and think they have done things right when in fact they simply got lucky.
Don't forget that for Long Residence the rules are a little bit more relaxed than for the 5-year qualifying period.
Again, if the application is put together well and the only issue is resubmission upon receipt of refused or invalid applications then I would not expect the application to be refused solely for this reason.
With regard to your last question, I think legal representation can be very useful for Long Residence applications.
thanks for your answer
After i receive my SAR, do you think i should write a letter to ukba explaining the gap specifically with all the dates and that whenever this happened i did my utmost best to resubmit well within the days given to me and also explain why application was returned (e.g wrong advice from univ counsellor).
The ilr process nowadays takes 6-9 months which is a long wait and i definiteely dont want it to go on appeal, thats why i wanna put all the chances on my side. do you think i should do the letter or leave it or get a solicitor to do me a well drafted letter?
many thanks again
just one last thing please. you said quoting above:
"Remember that when an application is submitted 'in time' your visa is effectively extended pending receipt of a decision (or return of the application). You can therefore take the view that the visa actually effectively expires when the decision is received or the application returned. You can then take a more favourable view of gaps (or the lack of gaps).
so that means the visa expired upon return of application. do you mean the visa "takes effect again" when the application is sent back to them? will the gap then be counted as the gap between the return of application and subsequent return of application back to ukba?
just wanted to clarify this last thing
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