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UK_Lawyer, Solicitor
Category: UK Law
Satisfied Customers: 2458
Experience:  I am a qualified solicitor and an expert in UK law.
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My Set O application (10 years residency) with dependents husband

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My Set O application (10 years residency) with dependents husband and 19 months child was refused due to 91 days gap(28 Oct 07 – 30 Jan 08). I made the FLR (IGS) application before my student visa expired and did not receive the refusal until 01 December 2007. It was not the fault on my part as the post was returned undelivered to the UKBA and I was notified by UKBA by phone. It was then redelivered to my address on the 01 December 2007. I immediately sought legal advice from Solicitors upon received the refusal. My legal representative did not appeal but had made 2 attempts for reconsideration, i.e: 08 December 2007 and 27 December 2007 but to no avail.
After that I made a new student application and was granted further leave to remain in the UK. I do not have right to appeal as I still have valid student visa until Sep 2013. Please advice what options do I have. Thank you.
Hi thank you for your question. Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE.

What was the date on the refusal letter?
Did you clarify this gap in your most recent application for settlement?

Kind regards
Customer: replied 3 years ago.

3 June 2013.

Yes the covering letter was sent. The refused letter also states that in the view of explanation Secretary of State is not prepared to exercise his discretion.

Thank you for your reply.

In respect of refusing your visa, the home office do allow discretion to be exercised and over look your gap if it is more than 28 days between any one of your applications. Gaps of less than 28 days are overlooked and usually discretion is always exercised.

In respect of your matter as the gap was more than 28 days, the home office would want evidence that there were exceptional circumstances in respect of you submitting the application late, which would allow them to exercise discretion.

The immigration officer would always discuss the use of discretion with a senior caseworker. They must be satisfied the applicant has acted lawfully throughout the whole 10 year period and has made every effort to obey the Immigration Rules. The decision to exercise discretion is not taken without consent from a senior executive officer (SEO) or equivalent.

The immigration would usually grant the application if an applicant:

• has short gaps in lawful residence through making previous applications out of time by no more than 28 calendar days, and
• meets all the other requirements for lawful residence.

The immigration office can use their judgment and use discretion in cases where there may be exceptional reasons why a single application was made more than 28 days out of time. For example, exceptional reasons can be used for cases where there is:

• a postal strike
• hospitalisation, or
• an administrative error made by the Home Office.

An applicant has a single gap in their lawful residence due to submitting an application 91 days out of time. The applicant has provided a letter from the post office or the delivery service that the decision was not posted to them in time, and also a letter from the home office confirming that a telephone call was made during this period and that the application only received the decision very late.

This would be sufficient as applicant has proved there were exceptional reasons for the late application and has tried to maintain lawful residence throughout the rest of the 10 year period.

If the home office did not reply to the reconsideration then , it would seem that they have upheld their decision and did not believe that you have provided enough evidence that there were exceptional circumstances preventing you from submitting the application within the required 28 days.

Unfortunatley in this case it does seem that the home office has deemed this delay in applying as breaking your 10 year long residence and therefore would would now have to accumulate the 10 years again starting from the date in which your leave was granted after 2007.

You can write to the home office asking them to reconsider, but as as already mentioned you would need to provide documentary evidence to back up your claim that you were delayed due to an exceptional reason.

I hope this answers your question if so kindly rate my answer positively so I can get credited for my time. If however you feel that the answer does not cover all the points raised in your question please DO NOT rate my answer negatively I will be happy to answer further question until you are satisfied with my answer.

Kind regards
UK_Lawyer and other UK Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you for your reply. If I have any further query can I come back to you.?

Thank you for your rating.

Of course I will be more than happy to answer any of your questions. Please ensure that you write on them FAO UK LAWYER or request me through my profile.

Kind regards