Immigration News: Court of Appeal rules on ILR and breaks in leave. Be careful watch and subscribe

Описание: This is Paul Turner the Immigration Barrister at Imperium Chambers

What are breaks in continuous residence - only one bite of the cherry says Court of Appeal in Kalsi v Secretary of State for the Home [2021] EWCA Civ 184.

Put shortly does paragraph 39E extend leave under s.3C of the Immigration Rules - the answer is no.

I have previously covered what is continuous residence and that you are allowed a break in your leave and still qualify for ILR -

This is a crucial issue for many people and I have seen lots of clients who face this problem - it is vital that any application is made properly and that any review is properly made and pursued to the lawful end.

I would strongly advise that before any application and definitely any application under paragraph 39E is made with professional help and I can help here.

Otherwise you will be treated as an overstayer even if you make further applications under paragraph 39E of the Immigration Rules.

This case clarifies to some extent the case of Hoque but not to Applicant’s advantage.

In Kalsi the Court of Appeal have now ruled that essentially that once you have made an application say within 14 days under paragraph 39E if this is refused while a reading of paragraph 39E seems to suggest you can make a further application - you will be refused as an overstayer.

As mentioned I have seen a large number of clients who have all made applications within 28 / 14 days only to be refused as overstayers.

The Court of Appeal distinguishes between applications made while you have leave and those when your leave has already expired.

In short if you you make an in time application and it is refused you have 14 days subject to paragraph 39E to make a new application - if that succeeds all well and good - however if it is refused and then you make another application or applications all within 14 days they will be refused as your leave will have ended after the first refusal.

I have seen many clients who have been advised to make numerous applications all within 14 days and cannot understand why they are refused - this is the reason - they have no leave.

It is vital to note the difference between say s.3C which extends leave and the 14 day rule.

In short you have one bite at the cherry - or one further attempt to get it right - it is therefore vital you seek professional advice if this applies to you or a family memeber.



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