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UKSolicitorJA, Solicitor
Category: Law
Satisfied Customers: 4312
Experience:  English solicitor with over 12 years experience
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I have been given appeal right in an application which was

Customer Question

I have been given appeal right in an application which was submitted after exhausting the appeal right in the previous failed application. Now after calling UKBA they said actually they made a mistake by giving appeal right. but i have already lodged the appeal. my length of residency in UK is 8.5 years. my question is even though its a mistake from UKBA, can court reject my appeal despite the "notice of decisions" saying that i have appeal right? secondly will it break my continuity if my appeal is accepted by court as the refusal letter says that my leave will be extended by section 3c if i appeal? finally if my appeal is not rejected but i choose to leave UK voluntarily while appeal is pending and come back with a entry clearance within 180 days, will my chain of 10 years be broken?
Submitted: 4 years ago.
Category: Law
Expert:  UKSolicitorJA replied 4 years ago.

Yes, if you did not have valid leave to remain when you submitted your latest application, you would not have the right of appeal but it seems that you were mistakenly notified that you had the right to appeal when you did not have it in law.

Your appeal may be allowed to continue or it may not be allowed to continue, it would depend on the discretion of the Tribunal seeing that it was UKBA which made the mistake.

Yes, so your appeal could be rejected, if appeal is allowed to continue and depending on whether or not you lodged your new application as soon as your appeal was dismissed in the previous application, your continuity may be broken, or it may be deemed to be continuing.

S. 3C will not be relevant here as you did not have valid leave when you applied. If you go out of the UK and come back with an entry clearance, your continuity will only be maintained if you had valid leave at the time you lodge the new application, you cannot appeal and lodge a new application concurrently.

Hope this helps
Customer: replied 4 years ago.

thx for your answer. your answer raises few more questions here. as you said its the discretion of the court whether to accept the appeal or not. If they accept then it says clearly that my leave would be extended by 3c in the refusal letter. If that is the case(if not please correct me why) then while appeal in process if i leave the country under section 3c leave and come back ,will my continuity carry on? please see the following link please read paragraph 128Aa(2) and please clarify if that applies in my case. one last question. If i withdraw appeal while it is accepted by court and make another new application within 28 days will that be accepted or refused? if accepted then will that visa continue my 10 years? thx

Expert:  UKSolicitorJA replied 4 years ago.
That paragraph applies to work permit employment under thr 5 year rule?
Customer: replied 4 years ago.

But it talks about general rule of continuity of settlement, doesn't it? I asked few more questiona as well. Will a third application fall under automatic refusal even if appeal is accepted by FTT? And will that visa continue my legal stay should that granted? Please answer

Expert:  UKSolicitorJA replied 4 years ago.

I am afraid it doesn't look good for you.

There is provision in the immigration rules that applicants who apply within 28 days of expiry of their leave are not classed as overstayers, this is a new grace period which was not there previously.

Your best chance is to try and get leave to remain from within the UK, as there is no guarantee that you eill get entry clearance and your leave to remain has already expired, making it harder for you to get 10 years continous residency if you go and come back with EC.

Entry clearance may be seen to break your continous residency as you cannot apply for a new visa when you have a pending appeal. Once you apply for EC, you wull have to drop your appeal and lose S.3C protection. As it is, you have no right of appeal in law, you were only mistakenly informed you have such right, so it all comes down to discretion.

Hope this helps
Customer: replied 4 years ago.

Exactly sir. So if I am lucky to get renewal from inside UK(on third attempt) will that deem as a continuity given the fact FTT accepted my appeal

Expert:  UKSolicitorJA replied 4 years ago.
Yes, in that case you would have a good case to argue that you have continuity.

All the best