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Hi, everybody. Thanks for your time reading this post. I have a bit of confusion what I shall do next in my situation. May be someone has a relevant experience or law knowledge and could suggest me something to sort the situation out or at least make it clear what to expect or what to do or not to do…. And one of the main questions I have is - is the time spent in a court appealing against visa decision count towards 10 year lawful long residence? And if yes, may I apply for ILR while my appeal is still in the court or should I wait for the decision?
Anyway, here is the story. In short–
July 2002 - Arrived on a student visa,
January 2003 - sent all papers for visa prolongation,
2003-2011 heard nothing from Home Office,
March 2011 - received a legacy form, filled it and sent straight away, visa refused,
January 2012 - first-tier tribunal appeal, refused,
May 2012 - upper tribunal appeal, waiting for the decision at the moment.
In long - I arrived here July 2002 as a student. In January 2003 I send my passport and all relevant documents for my student visa prolongation. That was the last time I saw my papers… I had 2 solicitors in different time and they both told me that all they could do was just send requests and wait. That was exactly what we did. I was phoning to Home Office myself may be once in half a year or so and the answer was that they were still considering my application and as soon as they would consider it they would contact me and there was nothing to worry about. Well, I was worrying as it was several years since I sent my application. But my solicitor at that time told me that it was ok, that sometimes it takes longer to decide… Meanwhile I was continuing my study as a full time student till 2008. I have studied all possible courses in the college I started with, so I needed to move forward. I found it not possible to enrol to any college or university without my passport and visa, though I had a letter from Home Office saying that they are considering my visa application. So all I could do and actually did was to go to distance learning at CIMA (Chartered Institute of Management Accountants) because my first degree in my country is Accountant. All they wanted to see was my passport’s copy and I had it. Then suddenly in 2011 I received a letter from Home Office asking me to fill in a simple form and add my recent pictures and send it back. I did it straight away. In 6 months or so I received a letter saying that I was refused in my student visa(after 9 years of concideration). I went to my new solicitor, which I knew from my friends was good, and he told me that there was no chance to win an appeal against the decision as since 2008 I was not a full time student and he even did not want to spend my money and his time doing that. I was not agreeing. I was a distance student, but it was Home Office’s fault that they kept my documents for so long and I had no other choice if I wanted to continue my study than do it as a distance learning. So I filed the appeal and first-tier tribunal dismissed my appeal. I went to Upper tribunal and waiting for the decision at the moment – it should be done at the end of July I think.
There is another thing which is making all this complicated case even more complicated is that in July it will pass 10 years of my residence in UK. What I want to know is was I all this 10 years lawfully in this country though I applied for my visa in time and filed all appeals to first-tier tribunal and upper tribunal in time? Is the time spent in court counts towards 10 years long residence at all? If yes, there is ANOTHER problem (do not laugh please) - I still do not have my passport and I do not have any Home Office ID to pass a Life in UK test to send them a SET(O) form. And as it is nearly a £1000 payment to Home Office to consider ILR application I do not want to gamble and send it without the Life in UK test certificate as they well might reject it and keep the money.
Many things done wrong and I know it now, but at that time everything was done to my best knowledge, so please do not point it out in your replies what I should have been done as I cannot change it now. All I need is an advice what to do next. I have a driving licence from my country of origin, but it seems they are very strict in the Life in UK assessment centre as per their website if I do not have an ID from their LIST I would not be able to take a test.
All suggestions are welcome.
Thanks!

krut wrote:March 2011 - received a legacy form, filled it and sent straight away, visa refused,
January 2011 - first-tier tribunal appeal, refused,
May 2012 - upper tribunal appeal, waiting for the decision at the moment.

It seems the dates are not in order. Can you please clarify on this.

a similar case.... [check the quote of a user by name 'diehard']

http://www.immigrationboards.com/viewtopic.php?t=91081

tier1Reading wrote:

krut wrote:March 2011 - received a legacy form, filled it and sent straight away, visa refused,
January 2011 - first-tier tribunal appeal, refused,
May 2012 - upper tribunal appeal, waiting for the decision at the moment.

It seems the dates are not in order. Can you please clarify on this.

Sorry - January 2012 - first-tier tribunal appeal, refused,

tier1Reading wrote:a similar case.... [check the quote of a user by name 'diehard']

http://www.immigrationboards.com/viewtopic.php?t=91081

Thanks, tier1Reading for your response.

Lucapooka said there:It's very simple: you can vary an application that is undecided but you can't vary an application that has been refused and in waiting for appeal. If I understood right, I cannot apply for ILR now even if it has passed10 years till I have a positive decision of upper tribunal. Please confirm if I am right

Does it actually mean, according to the quote of a user by name 'diehard' in that link, that I need to wait for the decision, and it does not really matter what the outcome will be - approval or dismissal - I would be eligible to apply for ILR anyway as 10 years has passed, as I have been lawful in this country for all that time?

I think you should be covered by Section 5 - 3C and 3D.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

I hope seniors can point out more effectively.

And another question. It seems to me that Home Office has lost all my documents including passport. I just spoke to a Life in UK test centre and they told me that they accept passport or UK driving Licence only. I do not have either. In case of my appeal denied and suppose they lost my passport - what should I do then? Does it make sense to ask HO now to issue me a temporary ID so I could take a test now? The problem is that my embassy in UK does not issue passports here, I have been there and they told me that I need to go home to get a new passport or I need a letter from HO stating what they need my passport for... I would not have enough time to make a new ID - as all I will have is 28 days. Does HO issuing any temporally ID? Or is there any other way to sort this problem out?
Thanks

tier1Reading wrote:I think you should be covered by Section 5 - 3C and 3D.

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

I hope seniors can point out more effectively.

I hope I am covered by S5 - 3C and 3D. And also hope seniors will write here their view as well. Thanks, tier1Reading

Would senior members comment on this post please

You are covered by 3C/D, but this will practically not benefit you, because you cannot make a new application whilst appeal is pending.

If what you have posted is accurate, and you have been making regular enquiries with HO, then I think you will have a strong case for leave outside the rules.

I hope you have a good advisor/solicitor who is dealing with your case.

Thanks, asim72. Yes, I have been making regular enquiries with HO and in the letter to the upper tribunal I mentioned a huge delay in decision making by HO which is breaking my Human Rights, though they probably might not pay that much attention to Human Rights now as they did before. I also supplied a lot of example cases to judge with more or less similar cases which show that people have been granted ILR on grounds of the delay in consideration of previous application. But all cases are individual so it is not guaranteed that I will get something on this grounds. As I cannot make a new application whilst appeal is pending, am I eligible to apply for ILR on grounds of 10 year lawful residence in case if my appeal is dismissed?

You cannot make any kinds of applications while under 3c.
I wish you luck, but trying to tackle upper tribunal appeal yourself might prove to be a costly and unwise decision.

There is caselaw about home office delays, but all the legal arguments can turn out to be very technical. Upper tribunal is not like a magistrates court where you can deal with the case yourself.

There is no option but to wait until you hear the outcome.

If it is not in your favour, then you will need to involve a very good immigration solicitor, and I mean very good solicitor who deals with intricate legal arguments at the high court level. There are others, but Zane Malik's name comes to my mind.

Also, be ready with your LIUK test results.

krut wrote:And another question. It seems to me that Home Office has lost all my documents including passport. I just spoke to a Life in UK test centre and they told me that they accept passport or UK driving Licence only. I do not have either. In case of my appeal denied and suppose they lost my passport - what should I do then? Does it make sense to ask HO now to issue me a temporary ID so I could take a test now? The problem is that my embassy in UK does not issue passports here, I have been there and they told me that I need to go home to get a new passport or I need a letter from HO stating what they need my passport for... I would not have enough time to make a new ID - as all I will have is 28 days. Does HO issuing any temporally ID? Or is there any other way to sort this problem out?
Thanks

You are right, and this is another question... I will try my embassy once more... The passport HO has is anyway expired.

Having a LiUK test pass, or a valid passport should be least of your worries right now.

Hi, everybody. Thanks again to everybody reading my post and especially to those who spent their time to answer to my questions and give me some advise. I have a little update on my case and a new question... Advise would be appreciated. My case in the Upper Tribunal has been dismissed - it was not a big surprise - they just ignored all mistakes and delays of UKBA and all case laws I mentioned and still concentrated on the fact that I did not study full time... Well, anyway I will appeal to the Court of Appeal. I just would like to have your advise on the following. It has passed 10 years as I was lawfully in this country though my visa was refused in 2011, I appealed in time. Am I eligible to apply for ILR now? I surfed through sections 276A-D of the rules. The only thing I am worrying about is this:

276(b) "lawful residence" means residence which is continuous residence pursuant to:

(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or

(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.

The question is - was my residence lawful for all this 10 years though I appealed in time against visa refusal, but I was not studying for full time since 2009 because I simply could not enrol to college while UKBA took its long time to decide on visa. I have proofs that all colleges I applied to study told me to wait till UKBA makes its decision and than apply for their course. And another question - is it safe for me to go and pass Life in UK test? I mean I do not want to wait for the court decision in detention centre... Thanks.

I have checked the rules - it says there that the time I was covered by the sections 3c and 3d is counted towards 10 years long residence. So I should be fine in that respect. It seems to me the safest way is to submit further grounds to be considered at appeal to the Court of Appeal - the fact that I have been here lawfully for 10 years... And if they agree with that than pass the LUKtest... Am I right?

I would say get professional advice from an expert immigration advisor/solicitor.

Don't take this as comprehensive and legal advice, but as far as I know, tribunal/judge will only consider the application you made and not consider any further grounds at all.

You are missing one vital point in what you are thinking. Yes, your leave is extended by 3C/D until your appeal is decided, but as far as 10 years application is considered, this 3C/D is of no practical benefit to you. You simply cannot make any further applications whatsoever until the time appeal is underway, simple.

Hi, everybody. Update in my case. It has passed 10 years since I am in UK. Meantime I wrote to UKBA asking them to send me a confirmation letter saying that I am legally In UK while I am appealing so I could get my passport from my embassy because they want to see the letter from UKBA. In 1 week I received a letter from CAAU3 (Manchester), but surprisingly it was nothing about my status in there, but instead they were asking me to prove that I am living at my address, to check if my name was spelled right and send them again (I did it 1.5 years ago) my passport pictures and all IDs I hold (my passport, birth certificate etc). Does anybody know what is this all about? I am not sure they need all this information just to issue me a letter I requested from them.They lost my passport ages ago and my birth certificate is not even in English and they did not mention I need to translate it.I am getting sick of their games…

Any Ideas?

Anyone?