Permission for JR refused. Pls help!!

lilboots · Post by **lilboots** » Mon Dec 09, 2019 2:29 pm

Hi,
I am trying to find ways of applying for Indefinite leave to remain (ILR) Long residence whilst I have an appeal pending (Not heard yet) without breaking my section 3c. My lawyer wants to withdraw my appeal when my I'm due for ILR (LR) then put in an application almost immediately for ILR based on long residence. My appeal hearing is on the 25/01/20 whilst I'm due for ILR on the 20/12/2019.

I am aware of the HO rules below and was wondering if anyone has gone through the process successfully . Did you submit further grounds to be considered during the appeal?

HO Rules...
The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal
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.

My immigration history is:
14/10/09 -31/10/11: entered the UK as student dependant
26/10/11: submitted application as PSW dependant
13/12/11 - 13/12/13 : Approved for these dates
13/12/13 : Submitted application as a Tier 1 Ent dependant
25/02/14 : Application refused
14/03/2014: Lodged an appeal (in-time)
22/07/2014 : Appeal Allowed
22/08/2014 - 22/08/2017: Tier 1 Dependant
22/08/2016 - Spouse gains ILR LR and subsequently became a British National a year later
22/08/2017 - I applied FLR (FP) (in tome)
20/12/2017 - Got a non-custodial sentence from court
31/07/2018 - Application refused as I applied using the wrong route as I do not have kids and they said I did not qualify for FLR (FP) with appeal rights given.
Appealed this decision.
Appeal hearing set for 26/02/2019
14/02/2019 - Applied for LTR as the spouse of a settled person
26/02/2019 - appeal was withdrawn from first tier
26/02/2019 - Appeal rights exhausted
13/09/2019 - LTR refused due to conviction on 20/12/2017 as the singular reason.
14/10/2019 - completed 10 years
20/12/2019 - 24 months after the non-custodial sentence and is spent
29/01/2020 - Appeal hearing at the First tier Tribunal

Now my dilemma :
My lawyer wants to apply for ILR (LR) on or after the 20/12/19 but before the appeal hearing but I think this is wrong as I have an outstanding appeal.
Do we submit further grounds to be considered during the appeal as the reason why I was denied in the first place (conviction) has now become spent and ask for reconsideration and at the same time I Have completed 10 years?

Pls gurus can you help me on this

Post by **CR001** » Mon Dec 09, 2019 2:39 pm

You cannot apply for ILR LR until you withdraw your appeal.

lilboots · Post by **lilboots** » Mon Dec 09, 2019 3:04 pm

Thanks CR001 for replying swiftly.

I do understand your point, however, would that not break my section 3c if I withdraw and apply for ILR LR as I do not have any existing leave to remain.

Your suggestion is what my lawyer wants to do but considering my scenario as outlined in my immigration history, withdrawing my appeal and applying for ILR LR same day, would that be the best option? As I applied in time on 22/08/2017 (this was when my leave finished) and got refused on 31/07/18. I appealed and then realised that I had applied using the wrong route and chances of winning that appeal was almost zero. So I withdrew the appeal and applied for LTR as the spouse of a settled person as indicated on my timeline. This application was now refused because of my conviction but I was given appeal rights.

Will withdrawing my 2nd appeal and applying for ILR LR in this scenario be the best option? I have read on here (I hope I'm wrong) that lawful residence is continuous only if the 2nd application (that is if the 1st application was applied whilst there was leave) was granted. In my case, the 2nd application was refused and is at the appeal stage and then my 10 years of residence is met as per my timeline.

lilboots · Post by **lilboots** » Mon Dec 09, 2019 9:44 pm

Any ideas about my query pls??

Post by **zimba** » Tue Dec 10, 2019 1:31 am

CR001 wrote: ↑
Mon Dec 09, 2019 2:39 pm
You cannot apply for ILR LR until you withdraw your appeal.

It seems long residence applications are human rights applications so an exception is applied. These can be made while an appeal is pending under Section 3C and so there is no need to withdraw the appeal. It seems that OP has no section 3C now but I believe this may be the reason why LTR application proceeded while having an appeal heard.

These applications can be made while the applicant has leave under section 3C of the Immigration Act 1971 as a consequence of an ongoing appeal against the refusal of another application. No other applications under the rules other than those in this section can be made where the applicant has 3C leave.

Source What is a human rights claim? from https://assets.publishing.service.gov.u ... l-v7.0.pdf

lilboots · Post by **lilboots** » Tue Dec 10, 2019 2:29 am

Thanks Zimba for your opinion on this post.
I do not understand the statement you made:

'...It seems that OP has no section 3C now but I believe this may be the reason why LTR application proceeded while having an appeal heard. '

I made an in time FLR (FP) application on 22/08/17 (my visa expired on this day too) and this was refused on the 31/07/18 with appeal rights. I appealed within the stipulated time and the appeal was scheduled for 26/02/19. I withdrew this appeal before the hearing (on 14/02/19) and applied for LTR as a spouse of a settled person. LTR was then refused on 13/09/19 with appeal rights. I appealed and it is scheduled for hearing on 29/01/20.

So, when you say I have no section 3c, at what point was it broken as all appeal was done within the stipulated time and the withdrawal and new application was done before my section 3c ended on 26.02.19?

Pls enlighten me. Thanks

Post by **zimba** » Tue Dec 10, 2019 3:54 am

Your section 3C ended when you withdrew the appeal. You have been an overstayer since then

lilboots · Post by **lilboots** » Mon Jan 20, 2020 1:00 am

My appeal is in 10 days time for my LTR(FM). The original reason why it was refused was because of my suspended sentence. Application was refused on 13/09/19. I appealed. And the appealed will be heard on 29/01/20. The 24 months for the sentence to be spent was on 20/12/19
I am wondering/asking for suggestions if the appeal judge will take this ‘new’ evidence into consideration as the singular reason the application was refused is now spent. Can I and my lawyer make a case of this as it isn’t exactly a new evidence but one referred to by the Home Office . Would the appeal judge base his judgement as @ 13/09/19 when the HO decision was made or take into the consideration that as at the the time of the appeal hearing the reason I was denied is no longer valid .

I’ll be grateful if gurus can reply me pls. I need to win the case to stand a chance of applying for ILR it seems

Post by **zimba** » Mon Jan 20, 2020 2:34 am

The appeal will be based on the circumstances and rules when the decision was made. You are appealing against that decision. The fact that things have changed now is not relevant

lilboots · Post by **lilboots** » Mon Jan 27, 2020 8:29 pm

My appeal is on later this week. My lawyer submitted further grounds of appeal which was accepted by the judge:

The was excerpts of the further grounds of appeal.

APPLICATION TO AMEND HUMAN RIGHTS GROUNDS OF APPEAL

We represent xxx in his immigration matters 
We apply to the Tribunal for an amendment of Human Rights Grounds as follows. 
Whereas it is accepted and acknowledged that at the material time, the Appellant’s application was refused because he failed to meet the requirements of the rules under paragraph R-LTRP.1.1.(c)(i) and R-LTRP.1.1.(d)(i), because his presence in the United Kingdom was not conducive to the public good as his conduct did not fall within paragraph S-LTR.1.3 to 1.5 with reference to character, association or other reasons which make it undesirable to allow him to remain in the UK. 
ii) It is on record that on 20 December 2017, xxxx was convicted and was issued with a suspended (non-custodial) sentence of 8 months suspended for 12 months and 200 hours unpaid work. 
24 months have since expired since this conviction. It is submitted that as the ground for refusal is no longer sustainable nor applicable, it is submitted that the Respondent can no longer rely on the “conduciveness” ground. It is therefore submitted that the decision is no longer compatible with section 6 of the Human Rights Act 1998 and maintaining the refusal would bring the UK 
iii) It is further submitted that xxxx now meets the requirements of settlement under the continuous lawful residence but may not make the application while his appeal remains. It is considered that further consideration be made by the Tribunal under his human rights. 
We ask the Tribunal to consider and admit these amended grounds 

My question is whether issue of the conviction which was the reason why I was refused but 24 months has subsequently passed whilst the appeal was pending is a 'new matter' which the HO can challenge or can be considered a matter which HO has considered 'Where my circumstances have changed since the Secretary of State or an immigration office was last made aware of them ' ...according to Section 120 of the 2002 Act.

Section 120 of the 2002 Act provides as follows:-
"Requirement to state additional grounds for application etc.
(1) Subsection (2) applies to a person ('P') if -
(a) P has made a protection claim or a human rights claim,
(b) P has made an application to enter or remain in the United Kingdom, or
(c) a decision to depart or remove P has been or may be taken.
(2) The Secretary of State or an immigration officer may serve a notice on P requiring P to provide a statement setting out -
(a) P's reasons for wishing to enter or remain in the United Kingdom,
(b) any grounds on which P should be permitted to enter or remain in the United Kingdom, and
(c) any grounds on which P should not be removed from or required to leave the United Kingdom.
(3) A statement under subsection (2) need not repeat reasons or grounds set out in -
(a) P's protection or human rights claim,
(b) the application mentioned in subsection (1)(b), or
(c) an application to which the decision mentioned in subsection (1)(c) relates.
(4) Subsection (5) applies to a person ('P') if P has previously been served with a notice under subsection (2) and -
(a) P requires leave to enter or remain in the United Kingdom but does not have it, or
(b) P has leave to enter or remain in the United Kingdom only by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending decision or appeal).
(5) Where P's circumstances have changed since the Secretary of State or an immigration office was last made aware of them (whether in the application or claim mentioned in subsection (1) or in a statement under subsection (2) or this subsection) so that P has -
(a) additional reasons for wishing to enter or remain in the United Kingdom,
(b) additional grounds on which P should be permitted to enter or remain in the United Kingdom, or
(c) additional grounds on which P should not be removed from or required to leave the United Kingdom, P must, as soon as reasonably practicable, provide a supplementary statement to the Secretary of State or an immigration officer setting out the new circumstances and the additional reasons or grounds.

Please refer to this case study at the upper tribunal which was similar to mine with respect to new matter etc
https://tribunalsdecisions.service.gov. ... 19-ukut-65

lilboots · Post by **lilboots** » Mon Jan 27, 2020 9:00 pm

Zimba wrote: ↑
Mon Jan 20, 2020 2:34 am
The appeal will be based on the circumstances and rules when the decision was made. You are appealing against that decision. The fact that things have changed now is not relevant

I think you are wrong on this Zimba

Section 85 states that the Tribunal may consider evidence about any matter which it thinks relevant to the substance of the decision, including a matter arising after the date of the decision.

https://assets.publishing.service.gov.u ... l-v7.0.pdf

lilboots · Post by **lilboots** » Tue Feb 04, 2020 5:48 pm

lilboots wrote: ↑
Mon Dec 09, 2019 2:29 pm
Hi,
I am trying to find ways of applying for Indefinite leave to remain (ILR) Long residence whilst I have an appeal pending (Not heard yet) without breaking my section 3c. My lawyer wants to withdraw my appeal when my I'm due for ILR (LR) then put in an application almost immediately for ILR based on long residence. My appeal hearing is on the 25/01/20 whilst I'm due for ILR on the 20/12/2019.

I am aware of the HO rules below and was wondering if anyone has gone through the process successfully . Did you submit further grounds to be considered during the appeal?

HO Rules...
The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal
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.

My immigration history is:
14/10/09 -31/10/11: entered the UK as student dependant
26/10/11: submitted application as PSW dependant
13/12/11 - 13/12/13 : Approved for these dates
13/12/13 : Submitted application as a Tier 1 Ent dependant
25/02/14 : Application refused
14/03/2014: Lodged an appeal (in-time)
22/07/2014 : Appeal Allowed
22/08/2014 - 22/08/2017: Tier 1 Dependant
22/08/2016 - Spouse gains ILR LR and subsequently became a British National a year later
22/08/2017 - I applied FLR (FP) (in tome)
20/12/2017 - Got a non-custodial sentence from court
31/07/2018 - Application refused as I applied using the wrong route as I do not have kids and they said I did not qualify for FLR (FP) with appeal rights given.
Appealed this decision.
Appeal hearing set for 26/02/2019
14/02/2019 - Applied for LTR as the spouse of a settled person
26/02/2019 - appeal was withdrawn from first tier
26/02/2019 - Appeal rights exhausted
13/09/2019 - LTR refused due to conviction on 20/12/2017 as the singular reason.
14/10/2019 - completed 10 years
20/12/2019 - 24 months after the non-custodial sentence and is spent
29/01/2020 - Appeal hearing at the First tier Tribunal

Now my dilemma :
My lawyer wants to apply for ILR (LR) on or after the 20/12/19 but before the appeal hearing but I think this is wrong as I have an outstanding appeal.
Do we submit further grounds to be considered during the appeal as the reason why I was denied in the first place (conviction) has now become spent and ask for reconsideration and at the same time I Have completed 10 years?

Pls gurus can you help me on this

I went ahead with my appeal and it was allowed today. Barring any appeals by the home office, can I now apply for ILR as 10 years was completed in October,2019

Post by **zimba** » Wed Feb 05, 2020 7:38 pm

Zimba wrote: ↑
Tue Dec 10, 2019 3:54 am
Your section 3C ended when you withdrew the appeal. You have been an overstayer since then

lilboots · Post by **lilboots** » Wed Feb 05, 2020 9:06 pm

Zimba wrote: ↑
Wed Feb 05, 2020 7:38 pm

Zimba wrote: ↑
Tue Dec 10, 2019 3:54 am
Your section 3C ended when you withdrew the appeal. You have been an overstayer since then

Hi Zimba,
Are you referring to the appeal that I withdrew on 26/02/2019?

If so,
* I had made an on time FLR (FP) on 22/08/2017; 31/07/18 it got refused; Appealed on time
- I withdrew the appeal on 26/02/19

* However, I applied for new FLR (M) on 19/02/19 whilst I had section 3c. That application was refused. However I have appealed and won the appeal yesterday 04/02/2020

How have I been an overstayer as I have won my appeal yesterday. where was the section 3c broken??

lilboots · Post by **lilboots** » Wed Feb 05, 2020 9:45 pm

I meant to say will this rule apply ??

[i]Those applying for long residence must satisfy rule 276B:

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

…

(v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.[/i]

lilboots · Post by **lilboots** » Wed Feb 05, 2020 10:23 pm

Hi Zimba,

You said the following below that overstaying period will be ignored if stay is regularised.I think this is what I have done with my appeal allowed. Does this apply to me please??

Re: ILR 10 years lawful resident continue and section 39e
Report this post Quote
Unread post by Zimba » Wed Dec 04, 2019 6:52 pm

The view is that the overstaying period ignored under 39E will not count as lawful residence unless you managed to regularise your stay. So if on the day of your SET(LR) you are not within 28 days of completing 10 years of lawful residence, time waiting as an overstayer for SET(LR) to be decided cannot be considered part of the lawful period required towards your SET(LR). This would have been different if you were waiting instead while having section 3C.

indefinite-leave-to-remain/ilr-10-years ... 21-60.html

Post by **zimba** » Thu Feb 06, 2020 1:28 am

lilboots wrote: ↑
Wed Feb 05, 2020 9:06 pm
Hi Zimba,
Are you referring to the appeal that I withdrew on 26/02/2019?

If so,
* I had made an on time FLR (FP) on 22/08/2017; 31/07/18 it got refused; Appealed on time
- I withdrew the appeal on 26/02/19

* However, I applied for new FLR (M) on 19/02/19 whilst I had section 3c. That application was refused. However I have appealed and won the appeal yesterday 04/02/2020

How have I been an overstayer as I have won my appeal yesterday. where was the section 3c broken??

You has section 3C by the virtue of your appeal and so when you withdrew the appeal, your section 3C ended and you became an overstayer. To regularise your stay, you must be granted FLR(M). Then you can apply under SET(LR) when you have lawful leave

lilboots · Post by **lilboots** » Sun Mar 22, 2020 5:41 pm

Hello ,

Pls I have a UKVCAS appointment tomorrow @ Sopra Steria, Birmingham as I have applied for ILR (LR).
I have paid for a Standard appointment and Document scanning .

a) Do I need to upload my documents online before the appointment? Or do they do it for me as I have already paid for document scanning?

b) Do I need anything else apart from confirmation notice and all of my original supporting documents??

Thanks for your anticipated reply.

Post by **zimba** » Sun Mar 22, 2020 6:28 pm

a) Yes
b) No

lilboots · Post by **lilboots** » Sun Mar 22, 2020 7:00 pm

Zimba wrote: ↑
Sun Mar 22, 2020 6:28 pm
a) Yes
b) No

Hi Zimba,

Thanks for your quick response.

My question (a) has two queries.I wasn't sure which of the queries you answered yes to.

1. Do I need to upload my documents online before the appointment?

2. Do they do it for me as I have already paid for document scanning ??

lilboots · Post by **lilboots** » Fri Oct 16, 2020 3:38 pm

Hi,

I applied for permision for JR and this was refused today.

My immigration history is:
14/10/09 -31/10/11: entered the UK as student dependant
26/10/11: submitted application as PSW dependant
13/12/11 - 13/12/13 : Approved for these dates
13/12/13 : Submitted application as a Tier 1 Ent dependant
25/02/14 : Application refused
14/03/2014: Lodged an appeal (in-time)
22/07/2014 : Appeal Allowed
22/08/2014 - 22/08/2017: Tier 1 Dependant
22/08/2016 - Spouse gains ILR LR and subsequently became a British National a year later
22/08/2017 - I applied FLR (FP) (in time)
31/07/2018 - Application refused ------ as I applied using the wrong route as I do not have kids and they said I did not qualify for FLR (FP) with appeal rights given.
Appealed this decision.
Appeal hearing set for 26/02/2019
14/02/2019 - Applied for LTR as the Spouse of a settled person (New Application).
26/02/2019 - Appeal was withdrawn from First Tier Tribunal
26/02/2019 - Appeal rights exhausted
13/09/2019 – Application refused
27/09/2019 - Appealed
14/10/2019 - Completed 10 years
29/01/2020 - Appeal hearing at the First tier Tribunal
10/03/2020 – Appeal granted.
16/03/2020 – Applied for ILR based on 10 years continuous leave.
17/03/2020 – ILR Refused.

I applied for PAP, HO maintained their decision. I decided to apply for JR. The Upper Tribunal decided not to admit my application to bring judicial review proceedings.
Below is the excerpts of their letter:

Following consideration of all documents lodged, including the Respondent’s
Acknowledgement of Service and Summary Grounds of Defence:
(1) The Applicant seeks to challenge the Respondent's decision on 24 March 2020 to
refuse him leave to remain on the basis of 10 years continuous lawful residence.
(2) The difficulty facing the Applicant is that he has not accrued 10 years lawful
residence. The Respondent has identified gaps in his lawful residence particularly
between 26 February 2019 when his appeal rights in respect of an earlier
application were exhausted and 4 February 2020 when an appeal against refusal of
a human rights claim was allowed. Allowing the appeal did not make good the
gap.
(3) There is an earlier gap that the Applicant attributes to not receiving notice of a
decision so that he appeal out of time. There is no independent evidence to
support that claim but even it it is well founded and if it means that he Applicant
had, or should be treated as having, leave he still falls short of the required 10
years.

Zimba did said: You has section 3C by the virtue of your appeal and so when you withdrew the appeal, your section 3C ended and you became an overstayer. To regularise your stay, you must be granted FLR(M). Then you can apply under SET(LR) when you have lawful leave.

I agree that my section 3C ended on 26/02/2019. However, I made a new application on 14/02/2019 whilst I had Section 3C and this was subsequently granted FLR(M). I applied for ILR afterwards. Are there case laws/immigration law to argue my case as I intend to apply for an oral hearing within 9 days from today.

Am I wrong in thinking that the Immigration rules provides for current overstayers to be disregarded where the applicant previously made an in-time application FLRP (22/08/2017) which was refused (31/07/2018) and the current application (FLRM) was made within 14 days of the expiry of any leave extended by section 3C (14/02/2019) and this application was granted and I applied for ILR afterwards?

Post by **zimba** » Fri Oct 16, 2020 5:02 pm

I believe the UKVI has failed to exercise discretion as per paragraph 39E. You indeed had a gap between 26 February 2019 (I would say 14/02/2019) and 4 February 2020. However, you had section 3C until you applied for FLR(M) before becoming an overstayer (section 3C ending). This application was eventually granted in accordance with paragraph 39E. The SET(LR) therefore must succeed given the period of overstaying must be disregarded as per rules. This is also clear in the long residence guide

• the applicant must not be in breach of immigration laws, except:

o for any period of overstaying for 28 days or less which will be disregarded where the period of overstaying ended before 24 November 2016
o where overstaying on or after 24 November 2016, leave was never the less granted in accordance with paragraph 39E of the immigration rules

https://assets.publishing.service.gov.u ... 6.0ext.pdf

lilboots · Post by **lilboots** » Fri Oct 16, 2020 8:40 pm

Thanks Zimba

lilboots · Post by **lilboots** » Sat Nov 14, 2020 7:52 pm

Dear Moderators,

I have been listed for an oral renewal hearing remotely on 27/11/2020 at 12:00pm via SKYPE. I am challenging the decision to refuse permission for JR on papers. The refusal was mainly:

Decision of Upper Tribunal Judge Perkins: the application for permission is refused
Following consideration of all documents lodged, including the Respondent’s Acknowledgement of Service and Summary Grounds of Defence:
(1) The Applicant seeks to challenge the Respondent's decision on 24 March 2020 to refuse him leave to remain on the basis of 10 years continuous lawful residence.
(2) The difficulty facing the Applicant is that he has not accrued 10 years lawful residence. The Respondent has identified gaps in his lawful residence particularly between 26 February 2019 when his appeal rights in respect of an earlier application were exhausted and 4 February 2020 when an appeal against refusal of a human rights claim was allowed. Allowing the appeal did not make good the gap.

I have submitted a grounds of appeal mainly that there was an error of law by the judge as this case was judged on 09/10/2020. Some of my points during my summary is:

1. The Applicant appeals the ruling of the Upper Tribunal judge dated 09 October 2020 that he had not accrued 10 years of lawful residence and that the Applicant’s application for indefinite leave to remain on the basis of ten years continuous residence was not valid.
2. The Applicant submits that the interpretation of the judge that the period when Mr xxxx made an LTR application i.e on 14 February 2019 whist he had Section 3C leave and 04 February 2020 when this application was eventually allowed (after an appeal) do not count towards his 10 years of lawful residence is an error of law.
3. The interpretation of para. 276B(v) and para. 39E was not interpreted correctly in line with the law (refer to Hoque & Ors V The Secretary of State for the Home Department).

4. Given the new interpretation of para. 276B and para. 39E by the England and Wales Court of Appeal on 22 October 2020, Hoque & Ors V The Secretary of State for the Home Department, the SSHD and the Upper Tribunal judge were wrong in their interpretation of para. 276B.

5. The Applicant further submits that he accrued a total of 10 years and 5 months continuous lawful residence in the UK since his arrival on 14/10/2009 until his ILR application of 16/03/2020 and further his application which was refused under paragraph 276D with reference to paragraph 276B(i)(a) of the immigration rules was unlawful, irrational and unreasonable.

6. It is submitted that since Mr xxxx made an in-time application on 22 August 2017 which was refused on 31 July 2018 and he subsequently made a new LTR application whist having Section 3C leave and this application was subsequently granted on 10 March 2020 in accordance with paragraph 39E of the immigration rules, the Home Office should have granted Mr Nwapa’s ILR application according to its own guidance.

I was wondering if there are any points that gurus can advice me on with respect to skeletal arguments and the application of Hoque & Ors V The Secretary of State for the Home Department to this case. I am representing myself and need as much help/advice as possible. Many thanks

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