Granted Leave on Article 8

[Simplebuthonest]

Hi,

Wondering if someone can shed some light on this scenario please? My friend + family was granted leave on the basis of Article 8 in July 2013 and put on 10 year route (renewal after every 2.5 years), however he did apply before March 2012 and received the acknowledgement letter straight after.

Little background to the topic is, you can be granted leave for 6 years if you applied on or before 8 July 2012 or 10 years if you applied from 9 July 2012.

My question is even though the decision was made in July 2013, considering he applied before March 2012 should he been given 6 years route and not 10 years? It clearly says applied and not the day of the decision is being made? what is your opinion on it?

Please let me know if you want me to clarify something, I will try my best. Thank you for all the Guru's here.

Kind Regards,

[Obie]

It should have been granted under the policy in place before 9th July 2012.

He should proceed with a JR claim, but first serve a Pre action protocol.

[Shondra Sharma]

@obie is right but Home office play a tricks even applied before 9july 2012 and decision is not before 9th july 2012, then they give the decision according to after 9th july 2012 rules, every decision like this. Do they able to use public funds on their 2.5 years stay? even I got a british child got a 2.5 year stay not able to take child benefit.

[Obie]

The approach adopted in your case, appeared to have been disavowed in the case of Edgehil

[Simplebuthonest]

The approach adopted in your case, appeared to have been disavowed in the case of Edgehil

@obie and @Sharma First of all I would like to thank you for your reply, wondering what is the best thing to do? should they wait until the another extension and then pursue the case altogether? or should they act now?

do apologies, didn't get much out of the case you have mentioned purely because of my little knowledge. Would really really appreciate if you can expand bit more on this please?

Many Thanks

[Simplebuthonest]

@obie is right but Home office play a tricks even applied before 9july 2012 and decision is not before 9th july 2012, then they give the decision according to after 9th july 2012 rules, every decision like this. Do they able to use public funds on their 2.5 years stay? even I got a british child got a 2.5 year stay not able to take child benefit.

No, they are not allowed to access any Public funds including Child benefits (CB) because recently CB has been made part of general Public funds. It does say clearly on their BRP card - No Recourse to Public Funds.

[Obie]

In regards to the public funds, you could apply for the Home office to remove that restriction, on the basis that you will face hardship if they refused to do so.

My concern is the fact that it is unlawful that your case was considered under the policy that came into effect after 9th July 2012.

This will result in delay in acquiring ILR and also cause the hassle of making several costly applications before qualifying for ILR.

That is wholly inconsistent with Edgehill.

[vinny]

Do you think that their approach, as outlined in paragraphs 6.2 and 8, is inconsistent with Edgehill?

[Obie]

I believe paragraph 32 of Edgehill appears to answer your question Vinny.

One has to take these guidance with a pinch of salt, really.

That view was also expressed inKhairdin.

The Secretary of State in adopting the new policy, will need to show that the person would have failed in any event, has she adopted the old policy, for her decision to be lawful.

[vinny]

But as discretionary leave was granted outside in the Immigration rules, the only transitional provisions for it are given in the Guidance. Isn't Odelola applicable?

[Obie]

The court of Appeal in Edgehill did not accept that view Vinny.

It in fact rejected that view when it was deployed by the respondent Secretary If State.

Whether within or outside the rules , an application made before 9th July 2012 , has to be considered under the rules or policy in place on the 8th July 2012.

That is my reading of Edgehill. I am not persuaded that it contradicts Odelola at all.

In Odelola there was no transitional arrangement.

In this case there is a transitional arrangement and the Court took the view that it has to be interpreted broadly to cover all application made before 9th July whether within or outside the rule.

That in my view is the distinction between Odelola and Edgehill.

[Simplebuthonest]

Thank you Obie for your detailed response, considering myself as a layman what is the best way to rectify this?

1) Should they act now and go for JR after serving Pre Action protocol? what are the chances it will be allowed under previous rules?

2) Should they wait until the next application to be made and raise the concern at the same time or this has to be carried out separately regardless of extension application? which also saves them cost of separate case

3) If they travel outside the country with this type of leave? would it harm them in anyway? would they have any problems when they will return after a 2-3 weeks?

Many Thanks

[Obie]

You may need to seek legal advise, as the steps to take are so detailed, that i will be unable to detail it .

First action will be to write to the UKBA.

Second step may well be PAP.

Third step may well be a JR claim, it all the first and second steps prove futile.

[Simplebuthonest]

You may need to seek legal advise, as the steps to take are so detailed, that i will be unable to detail it .

First action will be to write to the UKBA.

Second step may well be PAP.

Third step may well be a JR claim, it all the first and second steps prove futile.

Thank you once again, but would you be able to suggest about point 3 please?

3) If they travel outside the country with this type of leave? would it harm them in anyway? would they have any problems when they will return after a 2-3 weeks?

Kind Regards

[shirl157]

Hi was just wondering if anyone can tell me Whty the Home Office refuse to make a Decision on My Article 8 case And if they have to make a Decision Thanks for any Replys

[Obie]

3) If they travel outside the country with this type of leave? would it harm them in anyway? would they have any problems when they will return after a 2-3 weeks?

Kind Regards

Yes they can travel with it as it was issued lawfully.

[Simplebuthonest]

Yes they can travel with it as it was issued lawfully.

Thanks very much.

I take it, this Leave is not issued in relation to protection i.e. asylum etc. rather it is 10 year route to private life so do you reckon it should not be a problem for them to travel anywhere including to their own country for a very brief period of time?

Sorry if I have asked the same question again, but just wanted to clarify.