New application while ILR appeal in process

[dnf]

Dear All,

I am currently on Entrepreneur visa, which is due to expire on 17/12/2015.

I applied for an in person ILR on 02/07/15, based on 10 years, which was refused due to excessive absences of 1400 days. I was given the right of appeal and I appealed on 07/07/15, although I had the valid leave till 17/12/2015. My leave was not curtailed and I even traveled in/out of UK after submitting my appeal on 07/07/15.

My question is, that as my appeal is in process, can I put a fresh application to get my entrepreneur visa renewed?

I just want to make sure that I have not overstayed in UK.

Your suggestions will be welcome.

[Survivor07]

I have not heard of any case where 1400 days absences resulted in ILR(LR) however miracles do happen with HO thats for sure. Now did you take those days off for business/work related trips ? Could you shed some light on your basis for appeal ?

[dnf]

Hi Survivor,

I had another post, where I have given all the information but will be happy to give you an overview.

Been in UK since 2004 - minimal absences till August 2010 - 250 days absent

Wife has a chronic illness, which was dormant till 2010 and triggered back in August 2010. She has been followed by her Canadian doctors since she was diagnosed in 2001 and was advise by both the Canadian and UK doctors to be followed in Canada, when her illness came back in 2010.

Therefore 1050 absences after 2010 due to compassionate and compelling reasons.

I asked UKBA to disregard the excess absences based on compassionate grounds.

Go through previous tribunal decisions of IA/09772/2014 - where absences were 800 plus with no compassionate grounds

IA/41684/2013 - Another case similar to mine

Google precedent based scenarios and look at NC135, NC139, NC141 (This one was rejected but the reason given is that husband never lived in UK and the illness started after the qualifying period. It also says on there that circumstances such as these are treated as exceptionally compelling circumstances for over looking absences. In my case, the absences started during qualifying period), NC142, NC144, NC146, NC150 & NC151

All in all, I am well certain that my case will be allowed by FTT.

[geriatrix]

I even traveled in/out of UK after submitting my appeal on 07/07/15.

Then I assume that your appeal is under Human rights / Article 8. Had you not had extant leave then travelling abroad with a pending appeal would have lapsed section 3c leave (See 3C(3)). Just make sure that if you have an appeal pending on 18-Dec, you do not travel or remain outside UK on or after that date.

My question is, that as my appeal is in process, can I put a fresh application to get my entrepreneur visa renewed?

No. 3C(4)

[dnf]

How am I an illegal entrant when I have a valid leave till 17/12/2015?

[geriatrix]

Oops! My mistake .... sincere apologies for overlooking that very important fact.

But then how were you given the right to appeal the refusal ... if you have extant leave? Under Article 8?
Or were you given the right of "administrative review"?

[dnf]

You are right as to why was I given the right to appeal, when I had the valid leave and yes it is under Human Rights. Have you seen any cases where right of appeal was given with valid leave and why?

I would not say it was your mistake in overlooking my valid leave, when right of appeal is usually associated with leave been expired.

I believe, I will just have to wait and see. I submitted paper hearing and the case is now with the judge since 02/11/2015

[geriatrix]

I would not say it was your mistake in overlooking my valid leave, when right of appeal is usually associated with leave been expired.

I read appeal, no mention of Human rights / Article 8 in either of your posts - and I jumped to a conclusion! Should have asked first ...
My apologies, again .... and I have edited my response above to avoid any confusion for anyone else reading this topic.

[massonkhan]

Hi all,

I have an important question to ask please guide me it is matter of my career.

My Tier 4 Appeal is in process and I have completed law full 10 years in the UK.
My Appeal hearing was on 25th of September and i was expecting my deicide but i have received a latter from tribunal that my is listed for further hearing.

During the appeal person i have completed my law full 10 years and also passed life in the UK test and also completed master's Degree which made me qualify to get ILR according to immigration rules.

Now my question is..;;;;;

1. Can I apply for ILR while my appeal is in process?
2. can I use same day service for ILR Application.?
3. If I withdraw my appeal then would it be safe to apply by post?

Please guide me I am very confused.

Kind Regards.

Seerat Ali

[Obie]

I would not say it was your mistake in overlooking my valid leave, when right of appeal is usually associated with leave been expired.

I read appeal, no mention of Human rights / Article 8 in either of your posts - and I jumped to a conclusion! Should have asked first ...
My apologies, again .... and I have edited my response above to avoid any confusion for anyone else reading this topic.

Well as you may know Sushdmehta, Section 82 has been radically changed. Where as before a person with extant leave will not get a right of appeal, if as a result of the decision, they are not left without a leave, the amendment of section 82 removes this, and not a person will get a right of appeal even if they have an extant leave, provided a Human right claim had been made.

[dnf]

I must add something that you guys may want to look into regarding section 3C & 3D.

If the application was refused and the right of appeal was given, while the existing leave is valid and not curtailed (as in my case) than section 3C & 3D may not apply once the leave is expired. This is because the refusal of application did not trigger section 3C OR 3D, due to valid leave in place and if the visa is expired, while the appeal is in process than 3C does not apply.

This is the reason, I will be applying to renew my entrepreneur visa, while my ILR appeal is in process. Worst come worst, UKBA will refuse to process the application, which I will than have in writing for the future reference.

[raj5555]

Hi dnf

did you get the result of your appeal?