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Overstay and Subsistence of Relationship

Our client applied for indefinite leave to remain in April 2019 after having completed five years on a spouse visa. However, on account of suffering from chickenpox, he made the application on the 14th day after expiry for his visa. He mentioned in his application the reason for the delay. He was not able to find a job in Aberdeen on account of the oil recession; therefore, for the job purposes, he moved to Glasgow. His wife could not join him in Glasgow because she was studying in Aberdeen. They were visiting each other as and when they could. The Home Office refused his application for two reasons - firstly, applying after his leave to remain had expired, and secondly, he was not living with his wife after the last grant of leave to remain. We represented him at his appeal hearing. In our appeal bundle, we provided the evidence such as a letter from his doctor and a letter from his employer confirming that he was ill during the period of overstay. On that basis, we argued that his suffering from chickenpox was a good reason beyond his control, explaining his overstay. Hence, Paragraph 39E of the immigration rules applied to discard his overstay as overstay was within the fourteen days and was because of a reason beyond his control. In the appeal bundle, we also provided the travelling tickets confirming the visits of our client and his wife to each other, and they had holidayed together outside the UK during the period they were not living together on account of the job and study reasons. We argued that the Secretary of State did not appreciate that E-LTRP 1.10 of Appendix FM of the immigration rules says the applicant can provide a good reason if the couple has not been living together since the grant of last leave to remain. The appellant and his wife provided evidence that they are visiting each other even though the appellant is working in Glasgow, and his wife is studying in Aberdeen. They have been holidaying together outside the UK. Our client working in Glasgow and his wife studying in Aberdeen was a good enough reason for the purposes of E-LRTP 1.10. On the day of hearing in the last week of October 2019 the Home Office lawyer withdrew the refusal decision accepting that in light of the fresh evidence, the application should be allowed. As our client had become an overstayer, he had lost his job. We requested the Home Office lawyer to expedite the reconsideration of our client's application. Interestingly within a week of the hearing before the Tribunal, our client was granted indefinite leave to remain.

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