LEAVE TO REMAIN AS SPOUSE REFUSED WHILE STUDENT APPEAL IS ON

[cameron1]

I got a student visa for entry into UK on tier 4 to study for a year in 2008, i subsequently got another one year extension of stay to study for another 1 year in 2009.

In an attempt to get another 1 year extension to complete my studies, i was refused in Oct 2010,but i got a right to appeal which was unsuccessful. I was refused on the grounds of english language test and maintainance.

I pursued a further right to appeal in the upper tribunal. I won the right to appeal in March,2011. I recieved a letter last week that an hearing is scheduled for next month (28/Febuary/2012). -: Therefore i have a pending hearing with the tribunal, meaning that i am not overstaying because of section 3C. RIGHT???

Meanwhile, i got married through the registry last year (june 2011) after 2years relationship, we have been living together months before we got married (we have bank statement and bills to prove it).

Following our marriage, i made a fresh application to extend my stay in uk as a married partner of a citizen (FLM) in Nov,2011 while i was still waiting to get a date for the hearing of the appeal in the upper appeal tribunal as i have illustrated in the previous paragraph.

My application for the leave to remain was rejected this week. The caseworker refused me on the ground that i have OVERSTAYED, he stressed that i have overstayed since 2010. Therefore, i should arrange to leave voluntarily, he neither returned my passport nor issue a removal order or deportation order.

[vinny]

I think the caseworker was incorrect. You have not overstayed. Moreover, a fresh application should not have been considered while an appeal is outstanding.

[cameron1]

What should be my next action, should i add the new case of leave to remain as spouse to the appeal of tier 4 in the appeal, or what should i do??

[vinny]

You could ask the judge to consider your new circumstances at the appeal.

[cameron1]

My appeal will be heard 4 weeks time on the 28th of feb, how do i ask the judge to consider it?, will i have to ask for permission from the tribunal to add the new consideration b4 the appeal on 28th (4 weeks time), or i should just show up with the new refusal for the new FLM applicattion i submitted.
Remember the home office didnt return my passport and they did not give me a right to appeal.

[Obie]

Vinny is correct that Section 3D 4 does not permit you to vary the condition of your leave. However it will be wrong to say it precludes new application from being considered, as such application might meet Chikwamba Criteria.

However i agree that under 120 of AIN Act 2002, you are permitted to add these new grounds at appeal.

[Greenie]

Vinny is correct that Section 3D 4 does not permit you to vary the condition of your leave. However it will be wrong to say it precludes new application from being considered, as such application might meet Chikwamba Criteria.

However i agree that under 120 of AIN Act 2002, you are permitted to add these new grounds at appeal.

Whether he can add new grounds of appeal at this stage is questionable - the appeal has already been heard. The Upper Tribunal will be considering whether the First Tier Tribuanl erred in law in its determination, completely new grounds of appeal would not normally be permitted at an error of law hearing.

[Obie]

You may right as the marriage took place after First Tier Tribunals decision.

However 85(3) may apply.

In principle, an immigration judges determination cannot be substituted if there is no err in law. However Upper Tribunal have wide range of discretion in this matter, especially when the consequences of this is that OP will be denied a right of appeal.

[Greenie]

The Upper Tribunal is considering an appeal against the decision of the first tier tribunal, not of the UKBA. At error of law stage, the Upper Tribunal cannot consider evidence that was not before the Tribunal. 85(3) doesn't apply at this stage because the appeal against the immigration decision has already been heard. If the Upper Tribunal finds that there was no error of law in the original determination then it will not be able to consider the new evidence. If the UT finds that there is an error of law and the matter then proceeds to a re-hearing, then new evidence may be considered. The OP will need to seek permission from the Tribunal to consider further evidence under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Given the complex nature of the OP's query, he needs to seek advice from an immigration solicitor on this matter in order to proceed.

[diehard]

Hi cameron1, I think was in slightly similar situation as u ----my appeal was pending and i got married------and i was given lot of different advice by different lawyers

the best course of action for u was to leave the uk and apply as spouse from ur home country, were u advised of this?

the reason is many lawyers who want ur money will not suggest u this but there are a few honest ones who will stress on this route