ILR While on Appeal

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ILR While on Appeal

Postby FOX » Wed May 25, 2005 8:40 pm

Hi,

I came to UK in October 1995 on a student visa.I studied until 2001 with successful visa renewals and had a Diploma in IT.I was misled by a registerd lawyer to look for a professional full-time job and apply under the seven year managed migration rule, which the homeofice refused in January 2003 and found that I was working full-time and ‘pursued a career to fill a full-time vacancy’ as evident on my wage slips.I was however allowed to appeal against that decision, and given 10 working days to respond.I used a representative and we submitted the appeal within the time frame.I have been waiting for a response from the homeoffice ever since but invain. I always call them to ask about the progress and have been told that it’s awaiting further consideration.I have several questions regarding this matter:



1.What would be my status since 2001?

2.Do appeals take this long and if so why?

3 I will be completing 10 years this October ,Can I apply for ILR?

4 I’m I legal and lawful in UK to apply for ILR?(note:I have never been convicted of any crime)

5.Is the immigration breach counted as unlawful or illegal?

6.Can I be considered under human rights because I have a spouse with two children 2 and 3 years, born here in UK?



Please advise me on any further steps.

Thank you.
FOX
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Postby Chess » Thu May 26, 2005 9:26 am

I have never heard or read about the 'managed migration rule' which yopu applied under...

Unfortunately your status between 2001 to 2003 is classified as 'Overstayer' but it would have been referred to as Legal stay had you been subsquently granted a Visa.


You cannot qualify under the 10 year rule as part of your stay was illegal. Doing a premature 10 year application would be counter- productive and will not work...

I dont see any Human Rights compassionate grounds for a succesful application based on having children born in the UK. HO will urgue that they can be settled back in the parents home country.


The other alternative is to wait for a further 4 years and apply under the 14 year rule.

I am afraid it is not the news you wanted to hear.

All the best...
Where there is a will there is a way.
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Postby Kayalami » Thu May 26, 2005 3:18 pm

I believe the original poster is refering to the Regularisation Scheme for Overstayers (which the Home Office refused to state was an amnesty) with a closing date in October 2000 if memory serves me correctly. Implemented in tandem with the Human Rights Act and concerns over deportation for those in the UK for 7 or more years prior to said date. Without knowing the grounds of refusal difficult to identify way forward. Otherwise I endorse/ agree with comments from Chess. Pursuant to the OP's skillset it might be worth pursuing a HSMP application - appeals take considerably longer to resolve and the initial refusal indicates a weak application/case.
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Postby Jeff Albright » Fri Jun 03, 2005 12:35 am

Agree with all except:

I dont see any Human Rights compassionate grounds for a succesful application based on having children born in the UK. HO will urgue that they can be settled back in the parents home country.


They can argue that if the kids are not British citizens (born to parents neither of who is British or "settled"). If the author's spouse is British or any child is British, there is no point of arguing as such - British citizen has the right to choose to live in the UK if they wish and this is where Human Rights Article 8 comes to force to allow the foreign parent to remain with them.
What in fact can be argued is that there is no reason why a foreign spouse/parent cannot leave the UK to apply for an entry clearance and to subsequently re-enter the country unless they can provide a substantial proof that it would endanger their life (if the country is at war for example or the applicant had been persecuted in the past)
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Postby Chess » Fri Jun 03, 2005 7:37 am

Jeff Albright wrote:Agree with all except:

I dont see any Human Rights compassionate grounds for a succesful application based on having children born in the UK. HO will urgue that they can be settled back in the parents home country.


They can argue that if the kids are not British citizens (born to parents neither of who is British or "settled"). If the author's spouse is British or any child is British, there is no point of arguing as such - British citizen has the right to choose to live in the UK if they wish and this is where Human Rights Article 8 comes to force to allow the foreign parent to remain with them.
What in fact can be argued is that there is no reason why a foreign spouse/parent cannot leave the UK to apply for an entry clearance and to subsequently re-enter the country unless they can provide a substantial proof that it would endanger their life (if the country is at war for example or the applicant had been persecuted in the past)



Excellent explanation - Jeff. I do agree with all that you say. I am not sure though whether the OP's spouse is British, in which case the future would be less bleak
Where there is a will there is a way.
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ILR WHILE ON APPEAL

Postby FOX » Sat Jun 04, 2005 3:33 pm

Chess,
Sorry for not correcting you on my situation.I believe that i wasn't and haven't been an an ''overstayer''and hence ''illegal''because the original application i made to the home office was for variation of leave which i had made in 2001, BEFORE the expiration of my student visa and got the refusal in jan 2003.Correct me if i'm wrong if i say that all this period is legal towards the 10 year rule until my appeal has been determined.The home office clearly states that the appellant is not required to leave the UK until the appeal is determined, although they will not give 'formal leave to remain'.Please understand that i have not heard a response from them for nearly 3 years since i lodged the first appeal with them and that scares me.Please ''digest''and respond.
FOX
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Postby John » Sat Jun 04, 2005 5:35 pm

It sounds like Section 3C is in play, that is, you had a valid visa, you applied for a new visa before the old one expired ... your old visa is "treated as continuing" while IND decide upon your application, and indeed up to the time you are allowed to appeal against a rejection of your application. And I think, given that you did appeal, that application is still treated as valid and on-going, and therefore Section 3C is still in play, and your student visa with a stated 2001 expiry date is "treated as continuing".

So on the facts as stated by you it looks like you have never been an overstayer in the UK.

And your work? That is your work on your student visa "treated as continuing", a student is limited to 20 hours work per week during term-time, but unlimited hours outside of term-time. Given that in reality none of your last four years has been term-time, it looks like you are allowed to work, and for unlimited hours.

But all this is merely my opinion .... other thoughts particularly welcome.
John
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Postby Chess » Sat Jun 04, 2005 8:06 pm

I cant pinpoint the relevant rules at this stage - but IMHO I strongly believe that you are not eligible for applying based on 10yr rule unless your appeal is successful
Where there is a will there is a way.
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Postby FOX » Sat Jun 04, 2005 8:27 pm

Thanx John
I have read and understood Chapter 1 Section 3c of 1971 act .I would like to enlighten chess that, based on the above chapter, I'm still 'legal 'and 'lawful' as my student visa is automatically extended until i get the determination.The Chapter clarifies that anyone on appeal can put forward another application to be considered with the original Appeal so long as the original appeal is not withdrawn,hence my 10 year rule clock is still ticking.Please advise further.
Thanx
FOX
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Postby Chess » Sat Jun 04, 2005 8:39 pm

frnkgthg wrote:Thanx John
I have read and understood Chapter 1 Section 3c of 1971 act .I would like to enlighten chess that, based on the above chapter, I'm still 'legal 'and 'lawful' as my student visa is automatically extended until i get the determination.The Chapter clarifies that anyone on appeal can put forward another application to be considered with the original Appeal so long as the original appeal is not withdrawn,hence my 10 year rule clock is still ticking.Please advise further.
Thanx


Good Luck
Where there is a will there is a way.
Chess
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Postby Kayalami » Sun Jun 05, 2005 2:12 am

frnkgthg,

1. Pursuant to your application being prior to the expiry of your student visa it is clear that the regularisation scheme was not applicable since you were not an overstayer. I am therefore unable to ascertain what form of leave you/ your representative applied for - do you have copies of the paperwork. What was asked for and on what grounds? I can only assume you applied for ILR (I'm giving you the benefit of doubt) on a misunderstanding/misrepresentation of the regularisation scheme. This application was refused since:

(a) the regularisation scheme did not apply to you, and worse

(b) it came to the attention of the HO you were in breach of the rules by working full time and that you did not intend to leave the UK at the end of your studies.

2. Under the immigration rules a condition for grant of ILR under the 10 year rule is that you have lawful residence:

276A - HC395 wrote:
<Snip>

(b) "lawful residence" means residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or

Under Sec 3C of the 1971 Act as amended your leave was extended to 10 working days after the recipt of your decision = the same time you have to submit an appeal if your application is refused which it was. You have no formal leave at present - Sec 3C does not apply to the period of appeal i.e. you fail to meet 276A (b)(i). Likewise it does not apply to fresh applications post expiry of your leave. Hence your time in the UK since the refusal = Jan 2003 is not considered in the 10 yr period..your clock went back to zero and has stayed there. However you are not an overstayer pending the HO making a decision on the appeal.

3. The appeal is a mere formality because you applied for ILR when your student visa was valid. The HO have reviewed your application and found it to be without merit. On what basis do you expect the appeal to succeed given that the facts of the case hold? The mere fact of breaching your conditions by working full time means your case is a non starter. Your Human Rights must not circumvent immigration controls - the circumstances you describe i.e. kids is not a compelling enough ground because they can accompany you to your home country. Even where the children have settled status in the UK the courts have argued that they can if young enough settle abroad successfully with their parents. You have the rights to be with your kids but not necessarily in the UK is the theme here.

If your appeal is successful then you may apply for ILR as applicable if this is not what is granted since such leave forgives/ covers the period Jan 2003 to decision date. Sorry this is not the news you wanted to hear. Of course its only my opinion - others might think/ believe otherwise.
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Postby FOX » Wed Jul 20, 2005 3:25 pm

Hi guys,
I just needed further advise regarding my case.If i lose the appeal, what options will i be left with to pursue.Could i insist on the length of residence (i.e 10 years)and family ties as strong factors at the hearing?
Please respond.
FOX
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