Urgent Help needed please

[atikur]

I am a PSW (Post Study Work) holder and visa is expiring on 12sep 2014. I entered in to this country on 28th November 2005 as a student and left after couple of days and came back again on 9th May 2006. so i assume my years counting toward Ten Years Long Residency started from 28th November 2005 as the absent was less than 6months.
Now guys please advise me how can i extend my visa or stay legally until i am eligible to apply for ILR? I can still go back to apply for student visa (I've calculated my years of studentship in regards to CAP), but i don't want to go for it as I will lose my job. I got my wife and young baby to feed. so I can't afford to lose it now. Please give me some tips or tricks. I'll be ever grateful.

[Obie]

How old is your child?

The gap to ILR is over 15 months, you really need to convert to a viable option to enable you to stay.

Have your considered the Tier 1 options?

You can apply on human right, and hope that they don't assess the application quickly, and even if they refuse you will have up to 12 months to lodge an appeal.

Appeal in some region of the UK, is taking about 4-6 months, and assuming they take 3-4 months to decide your application, that will live you with about a gap of 5 months, at the minimum.

That will be problematic. If you get permission to appeal to to Upper tribunal if things don't succeed, that might buy time, and if they refuse you apply to the court of appeal, all of that will engage section 3C, but those are unknown variable.

The Upper Tribunal can only grant permission if there is an error of law, so there is no certainty on it extending further.

[atikur]

Thanks for the quick reply Obie. how come the gap to ILR is over 15months! is it not 13months and 16days as i can apply one month earlier. My baby is just 3months and 26days old today?
Tier 1 is very expensive too.

what is the proper name of that human right category and how much is the visa fee? Thanks once again for your quick and positive reply.

regards

[Amber]

Yes it's counted since November if you didn't break continuous residence. It's called family/private life leave under FLR(FP).

[Obie]

That child is very young and unless he or she is british or settled here, or has medical issues, there is little prospect of success or appeal, and I am doubtful an application and an appeal could last for up to 16 months.

[Amber]

The best interest of the child must be considered nonetheless.

[Obie]

The best interest of the child must be considered nonetheless.

I accept that, but in almost all the case laws i can think of from the top of my head, the court has ruled that the best interest lies with the child being removed with the parent, especially when he/she has developed no link or attachment to the community, outside the scope of his/her parents.

[Amber]

Yes EV (Philippines) & Ors v Secretary of State for the Home Department (SSHD) [2014] EWCA Civ 874 (26 June 2014) has created a very bad atmosphere for best interest cases. But nonetheless, each case should be judged on its own merits.

[Obie]

EV was not actually the one i was actually thinking about.

JW (China) was the one that i was thinking about.

It is the one that closely mirrors the circumstance of the OP's child.

[Amber]

I believe they were illegal in JW, anyway we certainly do not know enough about the OPs case to make judgement.

[atikur]

That child is very young and unless he or she is british or settled here, or has medical issues, there is little prospect of success or appeal, and I am doubtful an application and an appeal could last for up to 16 months.

Hi Obie, I don't know why you are keep saying 16months. its 13months and 16days, isn't it? well, i'll try this way, at least if i can spend 6/7months with this application then i'll apply in another category later on like Tier4. what do u guys think?

[Obie]

That child is very young and unless he or she is british or settled here, or has medical issues, there is little prospect of success or appeal, and I am doubtful an application and an appeal could last for up to 16 months.

Hi Obie, I don't know why you are keep saying 16months. its 13months and 16days, isn't it? well, i'll try this way, at least if i can spend 6/7months with this application then i'll apply in another category later on like Tier4. what do u guys think?

well i apologise for my poor arithmetic skills, probably the reason why i did not choose a career that does not involve counting.

I really do hope you succeed and i do wish you all the best.

My advise would have been, to get tier 4 now for a six-8 months course if you can and then apply under long residence.

If you wait until you visa has expired and then seek to get a CASS , that will be tough, as most institution wants to see your passport and proof that you have some extant certificate, before admission and a sponsorship letter can be given.

In any event, i wish you all the best with any application you may decide to make.

[atikur]

to Obie,
but my thinking is- if i apply for tier 4 now, God forbid if they refuse me with No Appeal Right (home office doesn't know what they are doing, as we all know that appeal right has been reduced to three categories only though implementation date hasn't been fixed yet. Sometimes they are refusing visa with no appeal right.) then my previous 9yeras will be ruined. so that's why i am thinking to apply in different category where i'll definitely get appeal right in case of refusal.
if i get refuse in human right ground which i assume i definitely will, then i will appeal. but i dont know how long solicitor or court can held this case for.

but can i apply for visa in different categories while my case is pending in the court, just to make sure that i'll have my way around?

thanks for advising me constantly.

[Obie]

It will be unlawful for them to refuse you a right of appeal if as a result of the refusal, you are left with no right of appeal. See 82(2)(d).

That will be a blessing if they do that, as it will mean you can seek JR and section 3C will continue.

I was advising you to make an application which has a realistic prospect of success, so as to give you some time, before applying for life under Private and family life, or Long residence.

If you were to apply under FLR(FP) and it gets refused quickly, you then go for an appeal and it fails, and permission for further appeal is refused, you will only have 28 days to make a new application, and that application cannot be varied.

I am concerned if by then, you will be able to secure sponsorship certificate from an institution.

Anyway i wish you all the best with whatever decision you take.

[atikur]

It will be unlawful for them to refuse you a right of appeal if as a result of the refusal, you are left with no right of appeal. See 82(2)(d).

That will be a blessing if they do that, as it will mean you can seek JR and section 3C will continue.

I was advising you to make an application which has a realistic prospect of success, so as to give you some time, before applying for life under Private and family life, or Long residence.

If you were to apply under FLR(FP) and it gets refused quickly, you then go for an appeal and it fails, and permission for further appeal is refused, you will only have 28 days to make a new application, and that application cannot be varied.

I am concerned if by then, you will be able to secure sponsorship certificate from an institution.

Anyway i wish you all the best with whatever decision you take.

Hi Obie,

I am ever grateful for your helpful advise. If they give me 28days time after refusal of everything, i believe i still can manage to get a CAS from any college and bank statement as a supporting document can be shown from my father from back home. my present situation is My visa is expiring on 12th September 2014 which is 29days away from now, initially i had a plan to apply from an "A' rated or 'Highly trusted college' as my intention was just to continue my stay toward my final goal,
but the problem is as soon as i'll get the visa i'll have to leave my job because of "No Work Right" which i can not afford at all due to my family commitment and my company will be asking for the visa at the end of next month. they run this check end of every September. so now if i can drag my present Right to Work for at least
6/7 more months then they won't bother me for the visa until next check is due to be done. Just to let you know my first Entry Clearance Visa started from 01/06/2005, but my entry was made on 29th November 2005. is there anyway i can make use of this 01/06/2005 date, caus i've seen in the website about the Eligibility of long residence where it says: when you arrived in the UK with a visa or when you were given permission to stay in the UK
please advise me again as you have been doing regularly.

NB: BY THE WAY WHAT IS SECTION C?

[Obie]

Section 3C is a right that you derive from the law as a result of making an in time application before your leave expires.

The effect of this is that your previous right will remain until a decision is made on your application.

I know that if an EC application is made, and the person enter within 3 months of the Entry Clearance being issued, then your residence starts from the date of issue, but if your came in after that 3 months period, which is the case with you, then you time starts from the day you entered the UK.

In regards with the other matters, perhaps you should have a chat with an adviser in person to deal with the best way forward for you.

[atikur]

It will be unlawful for them to refuse you a right of appeal if as a result of the refusal, you are left with no right of appeal. See 82(2)(d).

That will be a blessing if they do that, as it will mean you can seek JR and section 3C will continue.

I was advising you to make an application which has a realistic prospect of success, so as to give you some time, before applying for life under Private and family life, or Long residence.

If you were to apply under FLR(FP) and it gets refused quickly, you then go for an appeal and it fails, and permission for further appeal is refused, you will only have 28 days to make a new application, and that application cannot be varied.

I am concerned if by then, you will be able to secure sponsorship certificate from an institution.

Anyway i wish you all the best with whatever decision you take.

yes, I've seen that clause 82(2)(d) and it clearly stated that I should have appeal right. but could you clear me if I seek for JR followed by an unlawful refusal how section 3C will continue. do you have link for that? cause I have spoken with a legal adviser and he said JR will not count as continuation of my legal stay. please give a link or example so that i can speak with that lawyer again.
about your last reply, i've already spoken with an immigration solicitor. he sought time from me to consult with his colleagues if it would be possible to drag the time to 13 to 14months in this FLR (FP) category application.
I want your honest opinion too. I am confused now.

[Obie]

I have given you my advise to the best of my ability. It is up to you and your solicitor what step you take.

I wish you guys all the best.

I don't want to confuse you or give you advise contrary to your solicitor.

[atikur]

If you were to apply under FLR(FP) and it gets refused quickly, you then go for an appeal and it fails, and permission for further appeal is refused, you will only have 28 days to make a new application, and that application cannot be varied.

I am concerned if by then, you will be able to secure sponsorship certificate from an institution.

Anyway i wish you all the best with whatever decision you take.[/quote]

Hi Obie,
are you sure that I'll have 28days time to make a new application if appeal fails and permission for further appeal is refused. that's the main concern now. if i can be sure that law says to give an individual 28days time after all these..then it can help me to take decision quickly..please reply me.

[Obie]

If your solicitor tells you otherwise then i cannot say much.

Suffice to say, i am happy with the advise i have provided.

I have been over it many time, and confident everything is sound.

If your solicitor is given contrary advise, perhaps you ought to question him more thoroughly

[atikur]

My solicitor didn't say anything about it. I just need to know for myself.

[Obie]

Well i have told you, you can.

I'm not a personal adviser, i have many people that i offer the limited time i have to.

I can only advise based on my knowledge and the law.

In anything people make mistakes, but i am confident that my advice is based on the rules and the law.

[atikur]

thank you...I believe you more than the solicitors cause they advise people for money but you do to help. two different things.

[Obie]

Thanks for the compliment, and i hope they direct you in a proper and correct way, which will not have an effect on you and the future of your family, as there is a young child here as well.

I wish you all the best again.

[atikur]

Thanks for the compliment, and i hope they direct you in a proper and correct way, which will not have an effect on you and the future of your family, as there is a young child here as well.

I wish you all the best again.

Hi Guys,
I am back to my same topic. My present situation is that I applied for FLR/FP on 11th Sep 2014 and got refused on 11th December 2014 with appeal right. My solicitor lodged an appeal on 17th December 2014. I made a mistake in payment section while putting the long digits number of my credit card. Will it invalidate my appeal as court won't be able to take payment out or what will happen now?

Just a small recap for those who don't want to browse my previous posts: I was in PSW visa until 12 Sep 2014. I am going to be eligible to apply for Ten Years Route on 1st November 2015. So I wanted to spend these times legally with my work right. I know, you might be thinking why didn't i go for tier1 or any other category. the main reason was, i had to leave my present yearly salary based full time job as to visa category. Hence applied this FLR/FP category. Oh yea forgot to mention that I'm married and have a 8 months 6 days old child who born in this country. both of them r my dependent.

Well, now back to main discussion, my solicitor said that based on present back logged in the court, they won't be getting a hearing date before May or June in 2015.. once the date is due, they will then find an excuse to adjourn where we can buy couple of months time. if appeal failed we can then go to Upper tribunal.
What do you guys think about the plan? i'll be really obliged for any valuable advice. thank you.