Lost Right to Work while FLR? in process

[Renni_Aman]

Hello Everyone,

Following from my last post (re: FLR℗ to bridge gap before ILR 10 years application), I was assured by my solicitor that I would have the right to work, while my FLR℗ visa application is in process.

My last visa (PSW) expired on 8th August 2014, and a FLR℗ application was submitted 4th August 2014. I have opted to pay via card as my payment method. However, on the 11th August HO tried to clear funds, but my bank rejected the transaction (as a suspected fraud). I was completely unaware of this until a colleague of mine checked my account and noticed this (on the 19th August 2014).
Note: I worked for the same bank I used to pay the HO.
I immediately contacted my solicitor to inform her, so we can make alternative payments immediately. However, unfortunately the HO had already returned my application as "invalid".
So we reapplied immediately - sending off the same application with new payment details. Application still in process.

Yesterday (31st October 2014) - my manager told me that I cannot work without a visa with immediate action, until further notice.

Can anyone please tell me if there is anything I can do?

The way I see it, I just lost my job for something which I have no explanation for :'(

[Zee ali]

Hello Everyone,

Following from my last post (re: FLR℗ to bridge gap before ILR 10 years application), I was assured by my solicitor that I would have the right to work, while my FLR℗ visa application is in process.

My last visa (PSW) expired on 8th August 2014, and a FLR℗ application was submitted 4th August 2014. I have opted to pay via card as my payment method. However, on the 11th August HO tried to clear funds, but my bank rejected the transaction (as a suspected fraud). I was completely unaware of this until a colleague of mine checked my account and noticed this (on the 19th August 2014).
Note: I worked for the same bank I used to pay the HO.
I immediately contacted my solicitor to inform her, so we can make alternative payments immediately. However, unfortunately the HO had already returned my application as "invalid".
So we reapplied immediately - sending off the same application with new payment details. Application still in process.

Yesterday (31st October 2014) - my manager told me that I cannot work without a visa with immediate action, until further notice.

Can anyone please tell me if there is anything I can do?

The way I see it, I just lost my job for something which I have no explanation for :'(

How many months u still short to complete 10 years?

Thats why i told people never take a chance by paying through card.

Always use Cheque, banker drafts or postal order.

I sent postal order cost me 150 pound more but peace of mind.

If your visa is refused u will not get any appeal right and break in your 10 years continuity.

[vinny]

Yesterday (31st October 2014) - my manager told me that I cannot work without a visa with immediate action, until further notice.

Unfortunately, that's correct.

[Renni_Aman]

Hello,
Apologies for the late reply. My head is all over the place at the moment.

Right, so in terms of timescales:
Enter the UK 14/01/2005 ---> legal stay continuously
ILR 10 years 14/01/2015 (with the 28 days rule: 16/12/2014).

I recently spoke to my solicitor and he said that I do have the right to work, and HO made a mistake (as they need to correct their system, since I have proof that the payment refused was not my fault). Bank statements and letter from the bank manager was provided along with the re-application.
He then write a letter to the HO, explaining the situation (06/11/14) - since then he has not got back to me! I have called and left like a million messages, but every time the receptionist keep on tell me "unfortunately (solicitor) is not available, can I take your name and number and I will pass that onto him to give you a call back".

He is trying to ensure that I get the right to appeal (in case of rejection).

[Renni_Aman]

Hello,
Apologies for the late reply. My head is all over the place at the moment.

Right, so in terms of timescales:
Enter the UK 14/01/2005 ---> legal stay continuously
ILR 10 years 14/01/2015 (with the 28 days rule: 16/12/2014).

I recently spoke to my solicitor and he said that I do have the right to work, and HO made a mistake (as they need to correct their system, since I have proof that the payment refused was not my fault). Can this be true???
Bank statements and letter from the bank manager was provided along with the re-application.
He then write a letter to the HO, explaining the situation (06/11/14) - since then he has not got back to me! I have called and left like a million messages, but every time the receptionist keep on tell me "unfortunately (solicitor) is not available, can I take your name and number and I will pass that onto him to give you a call back".

He is trying to ensure that I get the right to appeal (in case of rejection).

[vinny]

If it was the UKVI's mistake, then you should be okay.

[Renni_Aman]

UKBA tried to take the fees (using the details of my card provided). After 2 unsuccessful attempts (due to fraud detection by HSBC Bank), they returned the application as invalid. I doubt this is UKVI fault.

Immediately the application was resubmitted (with no alterations) - new method of payment was provided, cheque from the same account, bank statements and a letter from the bank manager confirming that the rejection in payment is the bank process as a fraud triggered, and not because of insufficient funds.

I am not sure if my solicitor even know what he is talking about. The solicitor that took on my case, leave the company and pass my case onto this new guy (which frankly I have no faith in - he is inefficient and not professional at all, the 2 times I have spoken to him, he does not sound confident in what he is saying) - shame I cannot mention his same or company here!

I am really scared of losing my 10 years ILR

[Obie]

I believe 34C(B) may be applicable, had the decision been made after 6th November, 2014.

You can fight that there was no omission or failing on your part. You did all that was required of you, and provided all the correct details, and that the problems with the bank , was not of your making.

Your solicitor will need to up his game.

[Renni_Aman]

Thank you Obie.

I will have a detailed look into the link you sent me.
I am sick of chasing him…and I feel like I have been let down from every direction!

But since I paid well above the "usual solicitor fee" - I will have to fight to ensure that he help me through this!

I will update you guys on what happens next

[Obie]

You most certainly should, provided in the circumstance of doing so, he does not hinder your position in any way shape or form.

[Renni_Aman]

Update on FLR(FP) visa application - family life / partner (route to 10 years ILR)

Legal stay in the UK 14/01/05 - 08/04/14 (a combination of student, visitor and PSW visa). - no breaks/gaps.

Applied for FLR(FP) visa 04/08/14
Application returned "invalid" on 19/08/14 (because bank was unable to clear fund due to fraud detection)
Application re-submit 20/08/14
Biometric submit 19/09/14
Additional Info request 31/10/14
Application rejected 20/11/14 - with no right of appeal

Proposed Plan by Solicitor:
Submit application to Tribunal - with the intention of getting a right to appeal. 3 solicitors (from different firms) confirmed that this is possible. I have all proof that the bank is at fault, and they have provided a letter confirming this, along with my statements.
Once right of appeal is granted (if successful), I will then submit my ILR application (after 14/01/2015).

My Worry:
In case we failed at Tribunal, and we have not achieve the right to appeal, unfortunately this means I have overstayed my visa and hence break the 10 years continuous stay - which means I would no longer be eligible for ILR.

Technically, I have already overstayed my visa and break the continuous stay - but solicitor say that HO is at fault and we need to clean this up by challenge the right of appeal.

Any inputs, suggestions, comments etc…would be highly appreciated! Also I decide to post this detailed information, in case others might face similar situations.

[Obie]

Solicitor seem to make no sense to me.

How is Home Office at fault.

Home Office has done nothing wrong? Have they?

What is the basis for saying Home Office is at wrong.

[vinny]

However, on the 11th August HO tried to clear funds, but my bank rejected the transaction (as a suspected fraud). I was completely unaware of this until a colleague of mine checked my account and noticed this (on the 19th August 2014).

I have all proof that the bank is at fault, and they have provided a letter confirming this, along with my statements.

It's the bank's fault.

Ideally, both the bank and the Home Office should have immediately informed you that they had a problem with the transaction, so that it may be quickly clarified and corrected. A simple phone call or SMS message from either of them may have been sufficient for you to resolve the issue. It seems that neither party was bothered to contact you.

34C(b) may make things fairer, if it also covers payment failures. But it's still not as good as 17(1) (unfortunately repealed 4.3).

[Renni_Aman]

Guys, thank you for your inputs.

@Obie - My solicitors claimed that they have done this before and they won "the right to appeal". In addition, there was a case that exactly mirrors my situation / case, and received favourable outcome (the Basenet case), which was referenced in my tribunal application.

@Vinny - exactly… thats my point too…when I complained to the bank, I was told that they do not contact customer when they believe that there is a potential account take over (i.e. the type of fraud they believe on my account).

Anyway, the next update is: I went into work for a fact find interview. My tribunal application was submitted in London on the 3rd December. So far, not money has been deducted form my bank account.

Do you guys know how long it takes to get a hearing date? My solicitor said that within 2-6 weeks. Once they receive a hearing date, they can request for it to be "fast tracked" (that is to bring forward the date to an earlier hearing if available).

Thank you guys so much!

[Obie]

I wish your solicitor all the best.

I disagree that Basnet case closely mirrors yours.

Basnet involved a case, where the UKBA made an allegation but could not prove it.

In yours the Home Office made 2 attempt to withdraw the funds, but it was declined as a result of suspicion of Fraud.

In Basnet, the Home Office could not prove anything. Allegations were made of failure to pay the correct fee, but no evidence of this was adduced. In those circumstances the court was right to say that the burden was on the Secretary of State to prove that the right payment was not made, or that funds could not be obtained.

Had the Secretary of State been able to prove what he alleged, that would have been the end of Basnet.

If they can prove that on 2 occasions they attempted to collect fund, but this was decline. Then that will essentially be the end of the case.

The court of appeal decision in EK Ivory Coast, which i thought was really harsh, will impose a significant hurdle in your path.

[vinny]

I prefer Lord Justice Floyd's views.

The other two judges remind us all, no doubt, of how simple, transparent and objective the PBS aims to be – yeah right .

[Obie]

Interesting Vinny . I never noticed Floyd LJ was a dissenting view.

I read Sales views and felt depressed and did not go further.

I noticed and predicted since Nagre that Sales is working hard towards his Court of Appeal promotion and he has to all intense and purpose achieved his aims.

Perhaps he is working on a Supreme court appointment.


I fully agree with the dissenting view.

But the appeal was dismissed in any event, as it was 2 to 1.

Might go to the Supreme court, but at present , it is a binding authority, and does not help OP one bit.

[vinny]

I wish that all judges are brave enough to follow a former Chief Justice's doctrine:

Let Justice Be Done, Though the Heavens May Fall

(on a side note, Belle was an inspiring film).

[Renni_Aman]

Now successfully completed 10 years in the UK. Applying for ILR while appeal in still pending in FT Tribunal.[/b]

This is an update on my last post...I want to thank everyone who has shed some light on my case so far and is continuing to look forward to your support!

Enough was enough with my solicitor - so I have decided to change immigration firm. My new solicitor has made this proposal (below). I would appreciate your opinions whether you think I do have a chance or not.

Stage 1: Apply for ILR application as soon as I receive a hearing date from the Tribunal. I was advised that the HO will reply to us saying the application is 'invalid' and create a 'PRIORITY' file which will be sent to the Presenting Officers Unit to be part of my hearing. Another letter will follow from the HO with a confirmation that my ILR is now link to my appeal. This is similar to what is quoted below.

by emran habib » Mon Jan 27, 2014 11:22 pm
"A person may complete 10 years continuous lawful residence whilst they are awaiting the
outcome of an appeal and submit an application on this basis. Under sections 3C and 3D, it
is not possible to submit a new application while an appeal is outstanding. However, the
applicant can submit further grounds to be considered at appeal.
If the applicant has an outstanding appeal against a decision to refuse leave to remain or
indefinite leave to remain, and submits an application for long residence, you must void the
case and refund the fee. You must create a file or sub-file and mark it ‘PRIORITY’. You must
send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You
must send a letter to the applicant or their representative informing them their application
has been linked with their outstanding appeal." [Page 25/67 of the Guidance]

Stage 2: I was advised that we should continue with the appeal - and the outcome will likely to be successful if we can prove that I have completed my 10 years! In order to get an earlier hearing date, a request will be sent to the Tribunal requesting an 'out of London' hearing at an earlier date!

In regards to my job (which I had lost 31/10/14) because of my FLR (FP) application 'invalid' status, my employer is willing to put my contract on hold until June 2015 (unpaid) for me to provide my right to work in the UK! This is the reason why my new solicitor is requesting an earlier hearing. I spoke to the Tribunal on the 14/01/15 and was told that hearing date are currently about 6 months away, and if I am lucky I might get a date in June...the officer confirmed that I should receive a hearing date confirmation 'very soon'.

Thank you all....

[Zee ali]

Now successfully completed 10 years in the UK. Applying for ILR while appeal in still pending in FT Tribunal.[/b]

This is an update on my last post...I want to thank everyone who has shed some light on my case so far and is continuing to look forward to your support!

Enough was enough with my solicitor - so I have decided to change immigration firm. My new solicitor has made this proposal (below). I would appreciate your opinions whether you think I do have a chance or not.

Stage 1: Apply for ILR application as soon as I receive a hearing date from the Tribunal. I was advised that the HO will reply to us saying the application is 'invalid' and create a 'PRIORITY' file which will be sent to the Presenting Officers Unit to be part of my hearing. Another letter will follow from the HO with a confirmation that my ILR is now link to my appeal. This is similar to what is quoted below.

by emran habib » Mon Jan 27, 2014 11:22 pm
"A person may complete 10 years continuous lawful residence whilst they are awaiting the
outcome of an appeal and submit an application on this basis. Under sections 3C and 3D, it
is not possible to submit a new application while an appeal is outstanding. However, the
applicant can submit further grounds to be considered at appeal.
If the applicant has an outstanding appeal against a decision to refuse leave to remain or
indefinite leave to remain, and submits an application for long residence, you must void the
case and refund the fee. You must create a file or sub-file and mark it ‘PRIORITY’. You must
send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You
must send a letter to the applicant or their representative informing them their application
has been linked with their outstanding appeal." [Page 25/67 of the Guidance]

Stage 2: I was advised that we should continue with the appeal - and the outcome will likely to be successful if we can prove that I have completed my 10 years! In order to get an earlier hearing date, a request will be sent to the Tribunal requesting an 'out of London' hearing at an earlier date!

In regards to my job (which I had lost 31/10/14) because of my FLR (FP) application 'invalid' status, my employer is willing to put my contract on hold until June 2015 (unpaid) for me to provide my right to work in the UK! This is the reason why my new solicitor is requesting an earlier hearing. I spoke to the Tribunal on the 14/01/15 and was told that hearing date are currently about 6 months away, and if I am lucky I might get a date in June...the officer confirmed that I should receive a hearing date confirmation 'very soon'.

Thank you all....

Great

Did tribunal deduct fees from your account?

Did they consider your right of appeal (which u did not get with visa refusal?

[Renni_Aman]

Hi Zee,

Yes Tribunal deduct fees on 12/12/2014. I am still waiting for a hearing date...expecting to hear this before the end of this month [fingers crossed]. I have not yet received any confirmation whether appeal has been granted. According to my solicitor this will be confirmed in the letter from Tribunal.

[Zee ali]

Hi Zee,

Yes Tribunal deduct fees on 12/12/2014. I am still waiting for a hearing date...expecting to hear this before the end of this month [fingers crossed]. I have not yet received any confirmation whether appeal has been granted. According to my solicitor this will be confirmed in the letter from Tribunal.

Request SAR to see what is in HO system about u

Keep in mind u were given no right of appeal by HO. If tribunal accept your appeal than from refusal date till tribunal appeal acceptance date time wont count towards 10 years continuity. And break your 10 year continuity.

https://www.gov.uk/government/uploads/s ... 4.0EXT.pdf

Read page 8 and 10 of 30. This is for in time application but your second application is out of time so see where u stand.

[Renni_Aman]

Yes I already did a SAR - and everything came back clean. Issue is only with application from FLR (FP) 07/08/2014 (or second attempt on 20/08/2014) to now.

[Obie]

Is there an appeal right in the first place.

If the Home Office Say they could not get an appeal fee , and then invalidate the application because of that, then there is no lawful appeal , as there is no decision within the meaning of Section 82 (2) of the nationality and immigration act 2002.

The Home Office are likely to pick on the Jurisdiction issue , on the basis that at you did not make an application at a time when you had a section 3C right.

If the Secretary of State showed the Tribunal that they made 2 attempts to get funds but could not, then you will encounter significant difficulties in convincing the Tribunal that there is a lawful appeal over which they have jurisdiction.

Not sure how the Tribunal intend to address that.

[Renni_Aman]

Hi All,

Just an update...my solicitor have decided to apply for my ILR while appeal is still pending. This apparently will be part of my Tribunal hearing (which will merge both my appeal and ILR cases together).

I got a hearing date for 29th June - we are currently waiting for HO response to the Tribunal and will then submit a request for out of London hearing (with an expectation of getting an earlier date).

Fingers crossed. I will update you guys on the progress....