Pending appeal and 10 years long residency rule

Mohammad Islam made this Freedom of Information request to UK Border Agency

The request was partially successful.

From: Mohammad Islam

31 October 2012

Dear UK Border Agency,

I read your '10 years long residency rule and private life' valid
from 5 October 2012. In page 28 there is a para
''If the applicant has an outstanding appeal against a decision to
refuse leave to remain or indefinite leave to remain, and submits
an application for long residence, the case must be voided and the
fee refunded. A file or sub file must be created and this should be
marked ‘PRIORITY’, and sent to the presenting officers unit (POU)
dealing with the appeal. A letter must be sent to the applicant or
their representative informing them their application has been
linked with their outstanding appeal. You must use Doc Gen letter
ICD.3207 for this purpose.''

My question is when it said it should be marked 'PRIORITY'. What
does it mean.Is it 10 years will get priority? or something else?
Please explain ASAP.

Yours faithfully,

N Islam

Link to this

From: Settlement Ops Policy Mailbox
UK Border Agency

6 November 2012

Dear N Islam

Thank you for your email.

The paragraph above the one you quoted confirms that a person cannot submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.

Therefore, if a long residency application is received from someone in these circumstances, a copy of it is sent to the presenting officer as a 'priority' so that the presenting officer can consider any additional information on the form with the appeal.

Yours sincerely

Settlement Operational Policy

show quoted sections

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From: Mohammad Islam

7 November 2012

Dear Settlement Ops Policy Mailbox,

In that case if someone's appeal is allowed by judge on that
additional (10 years long residency) ground, does the appellant
need to apply separately to the UKBA for ILR after appeal is
allowed by judge? Or court order is enough to grant him ILR ?

Yours sincerely,

Mohammad Islam

Link to this

From: Settlement Ops Policy Mailbox
UK Border Agency

7 November 2012

Thank you for your e-mail, you do not need to re-send your enquiry or reply to
this message.

 

 

This is the Settlement Operational Policy Mailbox which is for enquiries
about family or settlement policy. We aim to respond to external enquires
within 10 working days.

 

Please note we are not able to answer general enquiries, give advice on an
individual’s particular situation or provide progress updates on
applications. If your enquiry is on one of these matters you will not
receive a response and you should contact the Immigration Enquiry Bureau
(IEB) on: 0870 606 7766.

 

You may also find important information, including application forms and
guidance notes, on our website: [1]www.ukba.homeoffice.gsi.gov.uk

 

 

Please also see the following Frequently Asked Questions

 

If we feel that these provide an answer to your enquiry, we will not send a
separate response.

 

 

Employment Routes: Continuous Residence

Q.  I received my grant of leave but delayed my entry to the UK, when does
my 5 year continuous period for settlement (ILR) start?

A. Provided the delay was no longer than 90 days from the date leave was
granted your 5 year continuous period for ILR can start from your entry
clearance date.

For example, if you were given permission to come to the UK on 1 October
2007 but didn’t enter the UK until 1 December 2007, you may qualify for
settlement from 1 October 2012.

 

Q. If I delayed my entry to the UK by less than 90 days, can I still apply
at a PEO 28 days before my leave expires?

A. Yes

 

Q. I have been absent from the UK for paid annual holidays, and to attend
a number of business meetings, have I broken my 5 year continuous period
for ILR?

A. Provided no single absence was greater than 90 days, and your total
absences did not exceed 180 days over the 5 year period, you will not have
broken the continuous period for ILR. 

 

Q. I have been absent from the UK on business trips and have exceeded the
180 day limit over the 5 years.  Have I broken my continuous period?

A. Yes, but we may disregard such absence where we can be assured that
there would have been serious implications for the business if the travel
had not been undertaken.

 

Please also see the following link to the Continuous Residence guidance on
our website:

http://www.ukba.homeoffice.gov.uk/siteco...

 

 

Long Residence (10 Years): Continuous Residence

Q. I have previously made an application for further leave to remain 7
days after my original leave expired. Will my residence in the UK be
deemed as legally continuous?

A. A single period of 10 days or less with no valid leave to remain in the
UK will be disregarded and so for these purposes your legal leave shall be
deemed to have been continuous.

We will also allow your ILR application to be submitted up to 28 days
after your last period of further leave expires.

 

 

Family Members: Continuous Residence

Q. I need to meet a qualifying period before applying for settlement
(ILR). When does this period begin?

A. If you entered the route overseas, the qualifying period will begin
when you arrive in the UK. If you ‘switched’ into the route within the UK,
the qualifying period begins on the date you were granted leave.

 

 

Family Members – Transitional Arrangements

Q. I was granted leave onto the Family route before the Rules change on 9
July 2012. Do I need to meet the new Rules at my next application?

A. No, anyone granted leave on the basis of the Rules in place before 9
July 2012 will need to meet those Rules when applying for further leave or
settlement. Please see our website:

[3]http://www.ukba.homeoffice.gov.uk/visas-...

 

 

English Language requirement for Leave to Remain as a Family Member

Q. Do I need to meet the English Language requirement?

A. You will need to meet the requirement if you are applying for Entry
Clearance or Leave to remain as a Partner or as a Parent of a person
settled in the UK.

 

Q. What can I do to meet this requirement?

A. You can meet the requirement in one of the following ways:

·        by passing an acceptable test at a minimum level A1 of the Common
European Framework of Reference for Languages (CEFR) with an approved
provider, or

·        by being a national of a majority English speaking country, or

o by having an academic qualification equivalent to a Bachelor’s or
Master’s degree or PhD in the UK, which was taught in English.

Further information is available on our website:

[4]http://www.ukba.homeoffice.gov.uk/visas-...

 

Q. Is this the same as the Knowledge of Language (KOL) requirement at
Settlement and Citizenship?

A. No, this is a separate requirement and asks for a different level of
English. Unlike KOL, you cannot use the Life in the UK test to meet this
requirement.

 

 

Dependants of Points Based System (PBS) Migrants

Q. I am the dependant of a PBS Migrant who has now become settled in the
UK. Do I need to switch into the ‘Partner of a Settled Person’ category?

A. This will depend on how the PBS Migrant applied for settlement. If they
were granted on the basis of being a PBS Migrant (under Tier 1 or Tier 2)
then you will not need to switch and you can apply for an extension as a
PBS dependant until you meet the requirements for settlement yourself.

If the PBS Migrant applied for settlement under the Long Residency
provision, then you can no longer be considered as a PBS Dependant and you
must apply for Leave to Remain as the ‘Partner of a Settled Person’ on
application form FLR(M).

 

Q. I have had to switch into the ‘Partner of a Settled Person’ category;
do I begin my qualifying period again?

A. No, you can combine leave as a PBS dependant with leave as the partner
of a settled person to meet the qualifying period.

 

Q If I have leave as a PBS dependant, what form do I use when I apply for
settlement?

A Form SET(O)

 

Q If I have leave as a Partner of a Settled Person what form do I use when
I apply for settlement?

A Form SET(M)

 

 

Criminality Requirement for Settlement

Please see the following link to our website for the current guidance on
the Criminality requirement for settlement:

[5]http://www.ukba.homeoffice.gov.uk/siteco...

 

We are not responsible for this Policy but, if necessary because the
answer is not included in the above guidance, we will contact the relevant
department to provide you with a response.

 

 

Requests to Return Your Documents or to Withdraw/Expedite a Case

Please note, this is not the correct address for these enquiries and you
should contact IEB on the number above or the relevant casework
department. We will forward any enquiries we do receive to the correct
department but we will not provide an individual response.

 

 

show quoted sections

 

show quoted sections

Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

Visible links
1. http://www.ukba.homeoffice.gsi.gov.uk/
2. http://www.ukba.homeoffice.gov.uk/siteco...
3. http://www.ukba.homeoffice.gov.uk/visas-...
4. http://www.ukba.homeoffice.gov.uk/visas-...
5. http://www.ukba.homeoffice.gov.uk/siteco...

Link to this

From: Settlement Ops Policy Mailbox
UK Border Agency

7 November 2012

Dear Mr Islam

If the judge allows the appeal on the basis of these additional grounds then the case will be referred back to UKBA for further consideration. This could be with direction from the judge on what the outcome of any reconsideration should be or merely a request to take into account the extra details. Either way you will not be required to make another paid application to get these factors considered.

Regards

Settlement Ops Policy

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Link to this

From: Settlement Ops Policy Mailbox
UK Border Agency

7 November 2012

Dear Mr Islam,

If an Immigration Tribunal determines that the Secretary of State has incorrectly applied the Immigration Rules when considering an applicant's application and directs the Home Office to grant leave, provided the Secretary of State does not consider that the consideration contained an error of law, the applicant will not be required to apply to the UK Border to receive leave.

I hope this answers your query.

Kind regards

Catherine
Settlement Operational Policy

show quoted sections

Link to this

From: Mohammad Islam

15 November 2012

Dear Catherine,

This is not the case I actually wanted to know. Likely scenario is
that for example if someone have a Human Right Appeal pending but
in the mean time he/she passed his 10 years lawfully in the
UK.According to your policy he can not submit a long residency
application while an appeal is pending. But he could raise the
issue as an additional ground in the ongoing appeal.

My specific question is,
If the appeal is allowed in this additional ground
a) Will UKBA loose its application fee?
b) Is the judge an authorized person to allow the appeal in
additional ground?
c)If UKBA wants to challenge it for some reason and lodges an
appeal against this how quickly it should inform the appellant? I
read about something in legislation.gov.uk that UKBA should send
letter to the appellant in same day by recorded delivery otherwise
the error in law appeal will be invalid.Is it true?

Yours sincerely,

Mohammad Islam

Link to this

From: Settlement Ops Policy Mailbox
UK Border Agency

15 November 2012

Thank you for your e-mail, you do not need to re-send your enquiry or reply to
this message.

 

 

This is the Settlement Operational Policy Mailbox which is for enquiries
about family or settlement policy. We aim to respond to external enquires
within 10 working days.

 

Please note we are not able to answer general enquiries, give advice on an
individual’s particular situation or provide progress updates on
applications. If your enquiry is on one of these matters you will not
receive a response and you should contact the Immigration Enquiry Bureau
(IEB) on: 0870 606 7766.

 

You may also find important information, including application forms and
guidance notes, on our website: [1]www.ukba.homeoffice.gsi.gov.uk

 

 

Please also see the following Frequently Asked Questions

 

If we feel that these provide an answer to your enquiry, we will not send a
separate response.

 

 

Employment Routes: Continuous Residence

Q.  I received my grant of leave but delayed my entry to the UK, when does
my 5 year continuous period for settlement (ILR) start?

A. Provided the delay was no longer than 90 days from the date leave was
granted your 5 year continuous period for ILR can start from your entry
clearance date.

For example, if you were given permission to come to the UK on 1 October
2007 but didn’t enter the UK until 1 December 2007, you may qualify for
settlement from 1 October 2012.

 

Q. If I delayed my entry to the UK by less than 90 days, can I still apply
at a PEO 28 days before my leave expires?

A. Yes

 

Q. I have been absent from the UK for paid annual holidays, and to attend
a number of business meetings, have I broken my 5 year continuous period
for ILR?

A. Provided no single absence was greater than 90 days, and your total
absences did not exceed 180 days over the 5 year period, you will not have
broken the continuous period for ILR. 

 

Q. I have been absent from the UK on business trips and have exceeded the
180 day limit over the 5 years.  Have I broken my continuous period?

A. Yes, but we may disregard such absence where we can be assured that
there would have been serious implications for the business if the travel
had not been undertaken.

 

Please also see the following link to the Continuous Residence guidance on
our website:

http://www.ukba.homeoffice.gov.uk/siteco...

 

 

Long Residence (10 Years): Continuous Residence

Q. I have previously made an application for further leave to remain 7
days after my original leave expired. Will my residence in the UK be
deemed as legally continuous?

A. A single period of 10 days or less with no valid leave to remain in the
UK will be disregarded and so for these purposes your legal leave shall be
deemed to have been continuous.

We will also allow your ILR application to be submitted up to 28 days
after your last period of further leave expires.

 

 

Family Members: Continuous Residence

Q. I need to meet a qualifying period before applying for settlement
(ILR). When does this period begin?

A. If you entered the route overseas, the qualifying period will begin
when you arrive in the UK. If you ‘switched’ into the route within the UK,
the qualifying period begins on the date you were granted leave.

 

 

Family Members – Transitional Arrangements

Q. I was granted leave onto the Family route before the Rules change on 9
July 2012. Do I need to meet the new Rules at my next application?

A. No, anyone granted leave on the basis of the Rules in place before 9
July 2012 will need to meet those Rules when applying for further leave or
settlement. Please see our website:

[3]http://www.ukba.homeoffice.gov.uk/visas-...

 

 

English Language requirement for Leave to Remain as a Family Member

Q. Do I need to meet the English Language requirement?

A. You will need to meet the requirement if you are applying for Entry
Clearance or Leave to remain as a Partner or as a Parent of a person
settled in the UK.

 

Q. What can I do to meet this requirement?

A. You can meet the requirement in one of the following ways:

·        by passing an acceptable test at a minimum level A1 of the Common
European Framework of Reference for Languages (CEFR) with an approved
provider, or

·        by being a national of a majority English speaking country, or

o by having an academic qualification equivalent to a Bachelor’s or
Master’s degree or PhD in the UK, which was taught in English.

Further information is available on our website:

[4]http://www.ukba.homeoffice.gov.uk/visas-...

 

Q. Is this the same as the Knowledge of Language (KOL) requirement at
Settlement and Citizenship?

A. No, this is a separate requirement and asks for a different level of
English. Unlike KOL, you cannot use the Life in the UK test to meet this
requirement.

 

 

Dependants of Points Based System (PBS) Migrants

Q. I am the dependant of a PBS Migrant who has now become settled in the
UK. Do I need to switch into the ‘Partner of a Settled Person’ category?

A. This will depend on how the PBS Migrant applied for settlement. If they
were granted on the basis of being a PBS Migrant (under Tier 1 or Tier 2)
then you will not need to switch and you can apply for an extension as a
PBS dependant until you meet the requirements for settlement yourself.

If the PBS Migrant applied for settlement under the Long Residency
provision, then you can no longer be considered as a PBS Dependant and you
must apply for Leave to Remain as the ‘Partner of a Settled Person’ on
application form FLR(M).

 

Q. I have had to switch into the ‘Partner of a Settled Person’ category;
do I begin my qualifying period again?

A. No, you can combine leave as a PBS dependant with leave as the partner
of a settled person to meet the qualifying period.

 

Q If I have leave as a PBS dependant, what form do I use when I apply for
settlement?

A Form SET(O)

 

Q If I have leave as a Partner of a Settled Person what form do I use when
I apply for settlement?

A Form SET(M)

 

 

Criminality Requirement for Settlement

Please see the following link to our website for the current guidance on
the Criminality requirement for settlement:

[5]http://www.ukba.homeoffice.gov.uk/siteco...

 

We are not responsible for this Policy but, if necessary because the
answer is not included in the above guidance, we will contact the relevant
department to provide you with a response.

 

 

Requests to Return Your Documents or to Withdraw/Expedite a Case

Please note, this is not the correct address for these enquiries and you
should contact IEB on the number above or the relevant casework
department. We will forward any enquiries we do receive to the correct
department but we will not provide an individual response.

 

 

show quoted sections

 

show quoted sections

Communications via the GSi may be automatically logged, monitored and/or
recorded for legal purposes.

References

Visible links
1. http://www.ukba.homeoffice.gsi.gov.uk/
2. http://www.ukba.homeoffice.gov.uk/siteco...
3. http://www.ukba.homeoffice.gov.uk/visas-...
4. http://www.ukba.homeoffice.gov.uk/visas-...
5. http://www.ukba.homeoffice.gov.uk/siteco...

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