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Hello everyone!
I hope someone here could be of an assistance. I initially made an FLR O application alongside my family which was refused but I appealed the decision and the Tribunal allowed my appeal. Whilst waiting for the decision to be implemented I completed 10 years lawful stay and varied my application to SET LR. I paid full application fees for SET LR as it took the UKVI ages to update the allowed appeal decisions onto their system. My SET LR was approved in July and my family only had their allowed appealed implemented in August. I wrote to UKVI requsting a refund for my FLR O application but they decline saying as my application was refused I'm not due a refund. However, I sent them another letter with a copy of their policy where it state that when an appeal is allowed the application becomes pending untill the UKVI makes a new decision.

I have not heard back from them for over 3 weeks and wondering if anyone have any knowledge or experience they could share with me.

Hi I think UKVI is right in declining the refund. As your initial application was decided and refused. As far as copy of policy is concerned that refund is of appeal fees which is 140 pound. You will not get a refund for your initial application . I hope this is clear now.

Rockefeller wrote:Hello everyone!
I hope someone here could be of an assistance. I initially made an FLR O application alongside my family which was refused but I appealed the decision and the Tribunal allowed my appeal. Whilst waiting for the decision to be implemented I completed 10 years lawful stay and varied my application to SET LR. I paid full application fees for SET LR as it took the UKVI ages to update the allowed appeal decisions onto their system. My SET LR was approved in July and my family only had their allowed appealed implemented in August. I wrote to UKVI requsting a refund for my FLR O application but they decline saying as my application was refused I'm not due a refund. However, I sent them another letter with a copy of their policy where it state that when an appeal is allowed the application becomes pending untill the UKVI makes a new decision.

I have not heard back from them for over 3 weeks and wondering if anyone have any knowledge or experience they could share with me.

Thank you Prem Singh for your reply.
Please can you read the page 36 of this document and give me your thoughts afterwards https://www.gov.uk/government/uploads/s ... .0_EXT.pdf

Rockefeller wrote:Thank you Prem Singh for your reply.
Please can you read the page 36 of this document and give me your thoughts afterwards https://www.gov.uk/government/uploads/s ... .0_EXT.pdf

Did home office Acknowledged u that your variation of application from flro to set lr is accepted?

if yes than u r entitled for flr o fees refund.

if HO accept set le as fresh application (which they should not) as u have pending application u need to follow up and tell them about the relevant policies about variation>

I already read it long time before, you need to understand that your initial application case was decided by the HO and appeal allowed means that HO decision to refuse your application was wrong. You made a new application to vary but your initial application was already decided. Hope this is clear now. Page 36 explains variation of leave of application if it is not decided.

I seconds Mr. Singh statement.
Thnx

If you appeal was allowed outrightly, then there is nothing to vary.

If it was allowed on the basis that the decision was not in accordance with the law, and it is outstanding waiting for a lawful decision, then you return to the default section 3C position.

I don't think a decision which has been looked at and decided by a judge, can be varied. A decision has been made, it is simply awaiting implementation.

Thank you everyone for your contributions.
The judge ruled that the UKVI decision was unlawful both under immigration rules and Article 8.
@Obie you stated that one can not vary an application that have been decided by a judge but the UKVI policy says

"Allowed appeals: unlawful decisions
Once an application has been refused it can no longer be varied. However, the migrant’s
leave is extended under section 3C (2)(a) if:
 they appeal against the decision, and
 it is found to be unlawful and returned to the Home Office to be remade.
In such circumstances, the application remains undecided as the original decision was
unlawful and had no effect. The application remains outstanding and may be varied until the
Home Office has made a fresh lawful decision."

You can read this on page 20 of the 3C and 3D policy by clicking https://www.gov.uk/government/uploads/s ... 2.0EXT.pdf

That is precisely the point i made.

If the appeal is allowed and remitted to the Secretary of State tobe remade, you can vary.

If it is allowed without remital, and the judge made the decision him/her self and say, you are entitled to the document you applied for, then the application cannot be remade.

Thanks Obie for your help.
Would you say in circumstances such as mine as described above the application was varied and may a refund is due or not?
Thanks

I don't know how your appeal was allowed, so it is hard to say.

Did the Judge decide to send case to UKBA again as decision was not in accordance with the law, and awaits a lawful decision, or was it simply allowed, and said you are entitled to the document you applied for.

If it is the later, then you cannot expect any refund as that chapter is closed in regards to that application, if it is the former, then you have a strong case for a refund.

Thank you very much again Obie. The last two paragraphs of the determination simply say as follows:

(27) Therefore on the totality of the evidence before me, I find that the Appellants has discharged the burden of proof and the reasons given by the Respondent do not justify the refusal. Therefore the Respondent's decision is not in accordance with the law and the applicable immigration rules.
DECISION
(28) I allow the appeals.

Well there is nothing to vary.

The judge made a decision which was based on assessment of the evidence, matter is concluded and application is not outstanding before UKVI


Usually a Judge will say this.

"The decision to refuse the application is not in accordance with law, and remains outstanding before the respondent , awaiting a lawful decision"

If a judge states the above, then you can vary, as there is still an outstanding application awaiting a lawful decision. Until that application is decided and a lawful decision made, the application can be varied.

That is what the law provides.

Thank you very much for your insights Obie.