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sanjaygul
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Joined: 11 May 2012
Posts: 18
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 Posted: Sat Aug 18, 2012 9:55 am Post subject: lodging appeal with no right of appeal |
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can any one refer me some case laws in which appeal was lodged to the first tier tribunal against:
the refusal of UKBA stating no right of appeal. |
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peppekalle
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Joined: 14 Jul 2011
Posts: 345
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| Posted: Sat Aug 18, 2012 2:54 pm Post subject: |
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I don't know why you are asking for specific case laws .If you want to represent yourself in court please don't get a lawyer to fight for you.
There are legal aid lawyers available and your local law center might offer immigration advice.
To go back to the question you asked i suggest you read this http://www.freemovement.org.uk/2011/02/11/refusal-but-with-no-removal-or-appeal/ |
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sanjaygul
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Joined: 11 May 2012
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| Posted: Sat Aug 18, 2012 7:29 pm Post subject: |
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i need specific case laws because i need to refer the cases in my appeal.
i have got no right of appeal. but i want to file appeal. its a bit complicated this time. |
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Greenie
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Joined: 21 Aug 2008
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| Posted: Sat Aug 18, 2012 7:34 pm Post subject: |
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| Why do you not have a right of appeal? |
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sanjaygul
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Joined: 11 May 2012
Posts: 18
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| Posted: Sun Aug 19, 2012 9:23 am Post subject: |
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because my PSW visa was valid when UKBA refused my Tier 1 General.
so 82 (1) of 2002 act does not provide a right of appeal. |
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Greenie
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Joined: 21 Aug 2008
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| Posted: Sun Aug 19, 2012 10:02 am Post subject: |
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| You will not find any case law to help you because it is simply the case that you do not have a statutory right of appeal. Your only option is judicial review-but this must be started within 3 months of the decision. Has your leave now expired? |
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sanjaygul
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Joined: 11 May 2012
Posts: 18
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| Posted: Sun Aug 19, 2012 1:34 pm Post subject: |
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three months leave has expired. but i can add few good reasons for applying late.
personally i am not in favor of JR because the judge can make a cost order against the claimant.
what is your opinion about cost order? |
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sanjaygul
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Joined: 11 May 2012
Posts: 18
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| Posted: Sun Aug 19, 2012 1:35 pm Post subject: |
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| i am in my home country. my leave has now expired. |
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Greenie
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Joined: 21 Aug 2008
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| Posted: Sun Aug 19, 2012 3:22 pm Post subject: |
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| sanjaygul wrote: | three months leave has expired. but i can add few good reasons for applying late.
personally i am not in favor of JR because the judge can make a cost order against the claimant.
what is your opinion about cost order? |
when did the three months expire and what are your reasons for applying late.
You don't have a right of appeal, so you can't appeal. JR is your only option. |
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sanjaygul
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Joined: 11 May 2012
Posts: 18
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| Posted: Mon Aug 20, 2012 3:28 pm Post subject: |
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three months expired in Nov 2011.
with regard to reasons for applying late, i was not legally represented by any solicitor. i was not provided any remedy to challenge this decision by UKBA, infact they said there is no right of appeal. i though there is no way to challenge it. i lost all the hope. but lately i came to know through some source that there is a way round by filing JR, which involves a risk of cost order. |
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Obie
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Joined: 21 Apr 2009
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Location: UK/Ireland
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Greenie
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Joined: 21 Aug 2008
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| Posted: Mon Aug 20, 2012 6:10 pm Post subject: |
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the reason i didn't mention these cases is that they don't really help the op as the scenarios in these cases were different. In mirza there was a right of appeal but not a decision to remove which the appellant wanted so that 395c could be argued. In daley murdoch the applicants was an overstayer and hence no right of appeal and it was argued that ukba should make a decision to remove. This is different from the op's scenario whereby he still had leave when his application was refused and therefore one would not argue that ukba should make a decision to remove |
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Obie
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Joined: 21 Apr 2009
Posts: 3831
Location: UK/Ireland
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| Posted: Mon Aug 20, 2012 6:48 pm Post subject: |
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| Greenie wrote: |
the reason i didn't mention these cases is that they don't really help the op as the scenarios in these cases were different. In mirza there was a right of appeal but not a decision to remove which the appellant wanted so that 395c could be argued. In daley murdoch the applicants was an overstayer and hence no right of appeal and it was argued that ukba should make a decision to remove. This is different from the op's scenario whereby he still had leave when his application was refused and therefore one would not argue that ukba should make a decision to remove |
Yes you are right. I missed sight of the valid PSW at time of refusal aspect.
I do believe however, that refusing an application shortly before the expiry of a leave to remain and then refusing the person a right of appeal of an unlawfull decision, is unfair and unreasonable, as the person will have to make a new application and incurr further cost, and they would have been denied a remedy to a previous unlawful decision.
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sanjaygul
Junior Member
Joined: 11 May 2012
Posts: 18
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| Posted: Mon Aug 20, 2012 9:36 pm Post subject: |
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i read mirza and at point 15 of determination: SSHD is required to issue removal at the time of refusal no matter if the applicant is lawful within country.
SSHD did not issue removal along with refusal to me. If she would have issued removal (with effect after the expiry of PSW) then it would have generated a right of appeal.
But is it possible to go to the tribunal and argue this point? |
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Obie
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Joined: 21 Apr 2009
Posts: 3831
Location: UK/Ireland
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| Posted: Mon Aug 20, 2012 9:49 pm Post subject: |
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But SOS cannot issue a Removal Direction if you have a valid leave to remain.
It is dodgy that they send removal close to expiry of PSW visa and essentially deny you the right of a judicial remedy of the alledge unlawful decision. However it cannot be said they should have issued a removal direction if you indeed had an extant Leave to remain
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