ILR refused

[billy121]

hello guys i need your advice

i came in UK in 2005 15th of april and extended my visa till 31 july 2013 and in the same day i applied for work permit got refused and put me in appeal date 24 th of july 2014 but the FTT dismissed my appeal in 7th of august and 20th of october 2014 i apply for tier 4 visa in this place things got really wrong as my( solictior said me i can make application and he will withdraw the appeal in the same day which he did not i came to know this short of thing later). i have done my bio matric and after that home office send me two confirmation email 1 said my application is valid and the second one said my application is under consideration which i receive in 4Th of november and in 31st of january i make a phone call and they said its still under consideration but in 29 of march they deemed my tier4 application as invalid as they said i can not make a fresh application while i have got pending applicaion when i have 15 days left for my 10 years however i still make a fresh ilr application showing all the document including two email and i said that its not my fault the solicitor did it and i have got all the document including the letter of authority which asked me to sign in 7th of october 2014. i have made a complaint to OISC and OISC took the solicitor licences upon my complain

however i have got refused my ILR application which said that i do not have any valid live to remain since 20th of october 2014 and they deemed my ilr application as out of time however they give me in country right of appeal and also they issue me IS96

now my question is do you think i can win the appeal

i am not married no child however i have got girlfriend from poland who in not living in my address and i have got no documents like bills and anything but i know her for last 3 years

[geriatrix]

The solicitor acts on the applicant's behalf.
Ultimately, the responsibility is yours ... even if you are paying a solicitor to do the job for you.

If you think you can convince a judge that you were not at fault, then you may appeal. But the fact is that a new application was submitted while the appeal process was going on - which the law doesn't allow.

[Obie]

I have difficulty understanding this case.

The Home Office are required to notify an applicant of an invalidity and give them an opportunity to sort it , are they not?

Yes you section 3C expired in October 2014, but if an application is made within 28 days , which appear to be the case, then that period is counted towards the 10 years lawful residence period, according to my understanding of the law.

[Ditima98]

#Obie
Yes your section 3C expired in October 2014, but if an application is made within 28 days , which appear to be the case, then that period is counted towards the 10 years lawful residence period, according to my understanding of the law.
__________________________________________________________

I have ready somewhere on this forum where it states that if you withdraw your application, then you submit a fresh one, if the new application is rejected, the time when 3c ended (Oct in this case) and time the decision is made, does not count towards 10 years...its only when the subsequent application is granted when it will count towards 10 years. OP's second application was rejected as invalid.

My concern is that OP clocked 10 years in April this year, what is his status now, is his stay based on 3c since he had a right of appeal after ILR rejection or something else? Billy could you please shed more light on that.

[Ditima98]

I beg your pardon please, In the above, I meant to say 'if you withdraw your appeal'.....and not application!

Thanks.

[geriatrix]

1. First application made while an appeal was in progress (October 2014).
2. That (first) application deemed invalid (March) because it was made when an appeal was in progress.
3. Second application submitted in March.

If section 3C ceased in October 2014 then how does the second application in March 2015 (even if made within 28 days of receiving confirmation of invalidity of previous application) makes the stay between October 2014 and March/April 2015 legal?

Here the invalidity of the first application was not due to payment problems / wrong version of form used / mandatory information missing / photograph issues etc. etc., where in I would agree that HO is required to offer adequate opportunity to the applicant to sort out the issue ... but here the application was deemed invalid because the applicant did not have legal right to make an application in the first place (when an appeal was in progress).

So, will the 28 days thingy apply?

[Obie]

Well you are messing my point completely.

It will be silly of me to suggest that Section 3C was engaged in this applicant's case.

I belive the OP made an application in October 2014, after his FTT appeal was dismissed in August, taking into account that he has 14 days to lodge an appeal, and the fact that he has 28 up to 28 days from the expiry of his statutory extended leave, to apply, I believe he should have been fine, and that the march decision may well be flawed.

276B(ii)(v) says:

(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.

The ILR provision provides that an overstay that occurred during the determination of an application that was made within 28 days of leave expiring should be ignored.

My concern is not in regards to the overstaying, as the rules provides for such overstaying to be ignored.

If the person acquire ILR before the determination of their application, they are entitled to qualify for ILR, and can make a new application.

This appears to be the case with the OP. That is the debate i was seeking to foster.

For the avoidance of doubt, I was not suggesting that Section 3C is applicable.

Just to conclude, It is my view that the decision was indeed flawed.

[billy121]

first of all thank you very much guys that you take time and see my case i will give the details with exact date

i came in 15th of april 2005 after that i extended my visa accordingly till 31 july 2013

on 31 of july 2013 i applied for tier 2 visa

on 2/10/2013 application refused

0n 14/10/2013 appeal lodged

on 7/08/2014 appeal dismissed

on 22/09/ 2014 permission to appeal to the first tier refused

0n 30/ 09/ 2014 applicant applied to the upper tribunal for permission to appeal to the upper tribunal

on 7/10/2014 i applied for tier 4 visa to getting assurance from solicitor and he said there is no legal binding

on 29/03/2015 the home office deemed my application as invalid

now on my tier 4 invalid letter it has been said as i was in appeal process i can not make an application however they also said if i want to make a fresh application i can but they have mentioned this on that letter and i quote "if you do consider making a further application for leave to regularise your stay please be aware that under most route any application made after a person overstayed for more than 28 days will automatically fall for refusal"

so based on that and with detailed letter i applied for ILR on 21. 04. 2014 which they treat as out of time application
and on 16.07.2015 i got refused with IN COUNTRY right of appeal which has already been lodged

NOW HEAR I WAS CONFUSED BY HOME OFFICE AFTER SUBMITTING MY TIER 4 APPLICATION ON 7/10/2014 I GOT BIO MATRIC LETTER AND DID IT ACCORDINGLY AFTER GIVING BIO MATRIC

ON 04/11/2014 I RECEIVED ACKNOWLEDGEMENT E-MAIL FOR MY MY TIER 4 APPLICATION AND THEY SAID AND I QUTE " FOLLOWING YOUR BIO MATRIC ENROLMENT YOUR APPLICATION IS NOW VALID ON BEHALF OF THE SECRETARY OF STATE"
AND IT ALSO MENTIONED I AM LEGALLY ENTITLED TO STAY IN HEAR

ON 24/11/2014 HOEME OFFICE SENT ME ANOTHER EMAIL CONFIRMING THAT MY APPLICATION IS "SITLL UNDER CONSIDERATION"

0N 26 / 02/2015 I A MADE A GENRAL ENQUIRY OVER TELEPHONE TO THE HOME OFFICE PERSON AND THEY ALSO CONFIRMED ME THE SAME THING AND SAID ITS UNDER CONSIDERATION

now i must mentioned that in 7/10/2014 when i applied for tier 4 in the same day i send all my supporting document and my previous solicitor send me a covering letter that i am on appeal and my appeal will be withdrawn.(which was not in a correct manner).

now i know he spoiled my life which i was not aware of because that was the first time i had seek legal help and he destroy my life after the invalidation notice i complaint To the OISC with all my document and OISC took it seriously and revoked his license which i came to know 19/07/2015.

now what is the chance i can win the appeal in court room?

i must let you know guys that i have got girlfriend who is polish nationality and i know her for 3 and half years though she lives in birmingham not in the same address

my english solicitor said that balance of probability is in my side is that true?

and he also mentioned the same thing home office can not valid any application and then invalid it after 6 month?
and he said i must say in the court room that in november if the said my application is invalid i had 10 days to make a fresh application ? is that true?

thats all guys
billy 121

[billy121]

Well you are messing my point completely.

It will be silly of me to suggest that Section 3C was engaged in this applicant's case.

I belive the OP made an application in October 2014, after his FTT appeal was dismissed in August, taking into account that he has 14 days to lodge an appeal, and the fact that he has 28 up to 28 days from the expiry of his statutory extended leave, to apply, I believe he should have been fine, and that the march decision may well be flawed.

276B(ii)(v) says:

(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.

The ILR provision provides that an overstay that occurred during the determination of an application that was made within 28 days of leave expiring should be ignored.

My concern is not in regards to the overstaying, as the rules provides for such overstaying to be ignored.

If the person acquire ILR before the determination of their application, they are entitled to qualify for ILR, and can make a new application.

This appears to be the case with the OP. That is the debate i was seeking to foster.

For the avoidance of doubt, I was not suggesting that Section 3C is applicable.

Just to conclude, It is my view that the decision was indeed flawed.

first of all thank you very much guys that you take time and see my case i will give the details with exact date

i came in 15th of april 2005 after that i extended my visa accordingly till 31 july 2013

on 31 of july 2013 i applied for tier 2 visa

on 2/10/2013 application refused

0n 14/10/2013 appeal lodged

on 7/08/2014 appeal dismissed

on 22/09/ 2014 permission to appeal to the first tier refused

0n 30/ 09/ 2014 applicant applied to the upper tribunal for permission to appeal to the upper tribunal

on 7/10/2014 i applied for tier 4 visa to getting assurance from solicitor and he said there is no legal binding

on 29/03/2015 the home office deemed my application as invalid

now on my tier 4 invalid letter it has been said as i was in appeal process i can not make an application however they also said if i want to make a fresh application i can but they have mentioned this on that letter and i quote "if you do consider making a further application for leave to regularise your stay please be aware that under most route any application made after a person overstayed for more than 28 days will automatically fall for refusal"

so based on that and with detailed letter i applied for ILR on 21. 04. 2014 which they treat as out of time application
and on 16.07.2015 i got refused with IN COUNTRY right of appeal which has already been lodged

NOW HEAR I WAS CONFUSED BY HOME OFFICE AFTER SUBMITTING MY TIER 4 APPLICATION ON 7/10/2014 I GOT BIO MATRIC LETTER AND DID IT ACCORDINGLY AFTER GIVING BIO MATRIC

ON 04/11/2014 I RECEIVED ACKNOWLEDGEMENT E-MAIL FOR MY MY TIER 4 APPLICATION AND THEY SAID AND I QUTE " FOLLOWING YOUR BIO MATRIC ENROLMENT YOUR APPLICATION IS NOW VALID ON BEHALF OF THE SECRETARY OF STATE"
AND IT ALSO MENTIONED I AM LEGALLY ENTITLED TO STAY IN HEAR

ON 24/11/2014 HOEME OFFICE SENT ME ANOTHER EMAIL CONFIRMING THAT MY APPLICATION IS "SITLL UNDER CONSIDERATION"

0N 26 / 02/2015 I A MADE A GENRAL ENQUIRY OVER TELEPHONE TO THE HOME OFFICE PERSON AND THEY ALSO CONFIRMED ME THE SAME THING AND SAID ITS UNDER CONSIDERATION

now i must mentioned that in 7/10/2014 when i applied for tier 4 in the same day i send all my supporting document and my previous solicitor send me a covering letter that i am on appeal and my appeal will be withdrawn.(which was not in a correct manner).

now i know he spoiled my life which i was not aware of because that was the first time i had seek legal help and he destroy my life after the invalidation notice i complaint To the OISC with all my document and OISC took it seriously and revoked his license which i came to know 19/07/2015.

now what is the chance i can win the appeal in court room?

i must let you know guys that i have got girlfriend who is polish nationality and i know her for 3 and half years though she lives in birmingham not in the same address

my english solicitor said that balance of probability is in my side is that true?

and he also mentioned the same thing home office can not valid any application and then invalid it after 6 month?
and he said i must say in the court room that in november if the said my application is invalid i had 10 days to make a fresh application ? is that true?

thats all guys
billy 121

[Obie]

On what basis did he say the case have merits.

[billy121]

On what basis did he say the case have merits.

as according to home office guideline they should have informed me that i can not make an application as my appeal is in process after 20th of october instead of that they make it valid then invalid after 6 month

and in another instant in the case of BT former solicitor UKAit and some other reference it has been found that as it was no applicant fault a discretion should have applied and the ILR should be granted ( as after the complain the solicitor lost its licences )


regards

billy121

[Obie]

It think he is taking it a bit far, I would not do go that far.

The Secretary Of State has no discretion is the Act says no application could be made.

But my understanding of your case is that you made another application after the appeal right has exhausted at the FTT. If that is the case, then the argument advanced cannot be correct.

[billy121]

It think he is taking it a bit far, I would not do go that far.

The Secretary Of State has no discretion is the Act says no application could be made.

But my understanding of your case is that you made another application after the appeal right has exhausted at the FTT. If that is the case, then the argument advanced cannot be correct.

so what shall i do obie shall i pack up because you know if thats case its just waisting time isnt it

[billy121]

It think he is taking it a bit far, I would not do go that far.

The Secretary Of State has no discretion is the Act says no application could be made.

But my understanding of your case is that you made another application after the appeal right has exhausted at the FTT. If that is the case, then the argument advanced cannot be correct.

so what shall i do obie shall i pack up because you know if thats case its just waisting time isnt it

by the way my girlfriend is polish nationality but she lives in a different city i can not show any bills or things like that but she will go to court if its necessary

[Obie]

I think there is merit, it is just the source of the merit that me and the Solicitor defers from.

[billy121]

1. First application made while an appeal was in progress (October 2014).
2. That (first) application deemed invalid (March) because it was made when an appeal was in progress.
3. Second application submitted in March.

If section 3C ceased in October 2014 then how does the second application in March 2015 (even if made within 28 days of receiving confirmation of invalidity of previous application) makes the stay between October 2014 and March/April 2015 legal?

Here the invalidity of the first application was not due to payment problems / wrong version of form used / mandatory information missing / photograph issues etc. etc., where in I would agree that HO is required to offer adequate opportunity to the applicant to sort out the issue ... but here the application was deemed invalid because the applicant did not have legal right to make an application in the first place (when an appeal was in progress).

So, will the 28 days thingy apply?

first of all thank you very much guys that you take time and see my case i will give the details with exact date

i came in 15th of april 2005 after that i extended my visa accordingly till 31 july 2013

on 31 of july 2013 i applied for tier 2 visa

on 2/10/2013 application refused

0n 14/10/2013 appeal lodged

on 7/08/2014 appeal dismissed

on 22/09/ 2014 permission to appeal to the first tier refused

0n 30/ 09/ 2014 applicant applied to the upper tribunal for permission to appeal to the upper tribunal

on 7/10/2014 i applied for tier 4 visa to getting assurance from solicitor and he said there is no legal binding

on 29/03/2015 the home office deemed my application as invalid

now on my tier 4 invalid letter it has been said as i was in appeal process i can not make an application however they also said if i want to make a fresh application i can but they have mentioned this on that letter and i quote "if you do consider making a further application for leave to regularise your stay please be aware that under most route any application made after a person overstayed for more than 28 days will automatically fall for refusal"

so based on that and with detailed letter i applied for ILR on 21. 04. 2014 which they treat as out of time application
and on 16.07.2015 i got refused with IN COUNTRY right of appeal which has already been lodged

NOW HEAR I WAS CONFUSED BY HOME OFFICE AFTER SUBMITTING MY TIER 4 APPLICATION ON 7/10/2014 I GOT BIO MATRIC LETTER AND DID IT ACCORDINGLY AFTER GIVING BIO MATRIC

ON 04/11/2014 I RECEIVED ACKNOWLEDGEMENT E-MAIL FOR MY MY TIER 4 APPLICATION AND THEY SAID AND I QUTE " FOLLOWING YOUR BIO MATRIC ENROLMENT YOUR APPLICATION IS NOW VALID ON BEHALF OF THE SECRETARY OF STATE"
AND IT ALSO MENTIONED I AM LEGALLY ENTITLED TO STAY IN HEAR

ON 24/11/2014 HOEME OFFICE SENT ME ANOTHER EMAIL CONFIRMING THAT MY APPLICATION IS "SITLL UNDER CONSIDERATION"

0N 26 / 02/2015 I A MADE A GENRAL ENQUIRY OVER TELEPHONE TO THE HOME OFFICE PERSON AND THEY ALSO CONFIRMED ME THE SAME THING AND SAID ITS UNDER CONSIDERATION

now i must mentioned that in 7/10/2014 when i applied for tier 4 in the same day i send all my supporting document and my previous solicitor send me a covering letter that i am on appeal and my appeal will be withdrawn.(which was not in a correct manner).

now i know he spoiled my life which i was not aware of because that was the first time i had seek legal help and he destroy my life after the invalidation notice i complaint To the OISC with all my document and OISC took it seriously and revoked his license which i came to know 19/07/2015.

now what is the chance i can win the appeal in court room?

i must let you know guys that i have got girlfriend who is polish nationality and i know her for 3 and half years though she lives in birmingham not in the same address

my english solicitor said that balance of probability is in my side is that true?

and he also mentioned the same thing home office can not valid any application and then invalid it after 6 month?
and he said i must say in the court room that in november if the said my application is invalid i had 10 days to make a fresh application ? is that true?

thats all guys
billy 121

[geriatrix]

Why are you posting the same information time and again?
If you have further queries that have not been answered or something you are still unsure of, why can't you pen that (only) down??

I don't see why you are making a mess of the topic by reposting the same story time and again!!

[billy121]

1. First application made while an appeal was in progress (October 2014).
2. That (first) application deemed invalid (March) because it was made when an appeal was in progress.
3. Second application submitted in March.

If section 3C ceased in October 2014 then how does the second application in March 2015 (even if made within 28 days of receiving confirmation of invalidity of previous application) makes the stay between October 2014 and March/April 2015 legal?

Here the invalidity of the first application was not due to payment problems / wrong version of form used / mandatory information missing / photograph issues etc. etc., where in I would agree that HO is required to offer adequate opportunity to the applicant to sort out the issue ... but here the application was deemed invalid because the applicant did not have legal right to make an application in the first place (when an appeal was in progress).

So, will the 28 days thingy apply?

but homeoffice sent me two confirmation email one in 4th and another one 24th it has got not value saying my tier 4 application is valid? and if take my girlfriend who is polish nationality do you think i can win it on the balance of probability? and last one after my complain to the OISC about previous representative OISC took his licences do you think after considering all this judge will give me the decision in my favour?

[billy121]

hello guys i have a quick question i have been given INCOUNTRY when my ILR got refused with IS96

now is it possible to cancel this IS96

i have been in the backet and they said me i have to go every forthnight or something like that.

now my last question if i have incountry right of appeal why i have to go for reporting condition?


thanks

[geriatrix]

IMHO,

0n 30/ 09/ 2014 applicant applied to the upper tribunal for permission to appeal to the upper tribunal

on 7/10/2014 i applied for tier 4 visa to getting assurance from solicitor and he said there is no legal binding

On what date was this permission refused? If after 07-Oct-14, then your Tier 4 application submitted 07-10-2014 is indeed invalid and section 3c does not apply. This means that you become an overstayer the day following the date your permission submitted on 30-Sep-2014 is refused.

So, 276B(v) doesn't help you, because your period of overstay is more than 28 days, and you submitted your ILR application five and half months after becoming an overstayer.

That said, there may be an argument to be made that 276B(v) does not distinguish between "valid" or "invalid" applications, including those applications deemed "invalid" because the law doesn't allow such applications (in your case, an application submitted when an appeal is pending).

The letter from Home Office stating your Tier 4 application was valid is perhaps to do with the fact that the form was duly filled, no mandatory information missing, signed and paid for, than deeming it "valid" in context of whether it was a lawful application or not.

Likewise, a letter requesting biometric enrolment is no indication of whether the application was valid despite despite being submitted when an application was pending.

[billy121]

IMHO,

0n 30/ 09/ 2014 applicant applied to the upper tribunal for permission to appeal to the upper tribunal

on 7/10/2014 i applied for tier 4 visa to getting assurance from solicitor and he said there is no legal binding

On what date was this permission refused? If after 07-Oct-14, then your Tier 4 application submitted 07-10-2014 is indeed invalid and section 3c does not apply. This means that you become an overstayer the day following the date your permission submitted on 30-Sep-2014 is refused.

So, 276B(v) doesn't help you, because your period of overstay is more than 28 days, and you submitted your ILR application five and half months after becoming an overstayer.

That said, there may be an argument to be made that 276B(v) does not distinguish between "valid" or "invalid" applications, including those applications deemed "invalid" because the law doesn't allow such applications (in your case, an application submitted when an appeal is pending).

The letter from Home Office stating your Tier 4 application was valid is perhaps to do with the fact that the form was duly filled, no mandatory information missing, signed and paid for, than deeming it "valid" in context of whether it was a lawful application or not.

Likewise, a letter requesting biometric enrolment is no indication of whether the application was valid despite despite being submitted when an application was pending.

sorry i think you did not read my case properly if you read it you would see that on 4th of november they said its valid. i understand your point you are saying that email really does not mean anything (although other people and some good solicitor said different thing)
ok what about the other email which they send me on 24th of november and said this still under consideration

and on 29th of feb i phoned them and they said the same thing still under consideration

does it again mean i have filled up the application correctly

pls read the case properly and then give me your advice

[Obie]

IMHO,

On what date was this permission refused? If after 07-Oct-14, then your Tier 4 application submitted 07-10-2014 is indeed invalid and section 3c does not apply. This means that you become an overstayer the day following the date your permission submitted on 30-Sep-2014 is refused.

So, 276B(v) doesn't help you, because your period of overstay is more than 28 days, and you submitted your ILR application five and half months after becoming an overstayer.

That said, there may be an argument to be made that 276B(v) does not distinguish between "valid" or "invalid" applications, including those applications deemed "invalid" because the law doesn't allow such applications (in your case, an application submitted when an appeal is pending).

The letter from Home Office stating your Tier 4 application was valid is perhaps to do with the fact that the form was duly filled, no mandatory information missing, signed and paid for, than deeming it "valid" in context of whether it was a lawful application or not.

Likewise, a letter requesting biometric enrolment is no indication of whether the application was valid despite despite being submitted when an application was pending.

With the utmost respect, I appear to have slight disagreement with 2 of your interpretations.

276B(V) cannot include an invalid application, as an invalid application is not an application at all, it is like an application which was never made, so it cannot be the case, that the provision in question, will also cover an application which does not exist.

2. I have difficulty in reading the letter the OP claimed to have received in the narrow way you read it.

Firstly the Secretary of State is required to notify an appellant of an invalid application, an invalidity notice must be sent to them. This OP was not served an invalidity notice, otherwise he would have been able to remedy the situation. He was told that all was fine. This gave him a legitimate expectation that all was fine.

I have no difficulty in accepting that his Section 3C ended when his matter was dismissed at the tribunal/ or deadline for filing appeal elapsed.

In every case, the Home office will inform an appellant of an invalid appeal expeditiously, they cannot take excessive time, and then come back to the person several months after the cause of the invalidity has ceased to exist, and in that period informing the person that all was fine.

I seem to have difficulty accepting that such practice is lawful or appropriate.

[vinny]

Although the rules do not specify a time limit for when you can reject an application, you must do this as soon as possible. You must complete all validation checks, including fee exceptions where they apply, before you reject the application. This makes sure the applicant is not given the impression their application is valid in all other respects, if their application does not meet more than one requirement.

If the application was received more than three months ago and does not meet the specified form requirements, you must use discretion and accept it as valid. This is because the applicant may be unfairly disadvantaged if you reject their application after this length of time.

It does appear that the applicant may be unfairly disadvantaged.

[Obie]

Precisely.

it seem to me that HO cannot pray in aid to the statutory restrictions, when if it was not for them misleading tne OP, the matter would have been resolved in his favour.

[geriatrix]

Happy to have my opinion corrected!