Refusal ILR 10 years Long Residence

[fuzzy991]

Hello Everyone,

Home Office refused my ILR 10 years Long Residence my application.

Home Office's reason for refusal:
My 10 years chain of residence broke because I was not on any visa from 01 June 2009 to 07 October 2009

My point:
Me & my employer submitted my work permit application (this is as per the previous rule, i.e. before Tiers based system)
on 03 August 2008, which Home Office did not process until 23 September 2009 (i.e. which was sitting at Home Office for over a year) although me & my employer kept chasing Home Office once every month for an update and/or outcome.

This work permit application was withdrawn on 23 September 2009 as my employer went into administration on 23 September 2009.

After that I switched into student visa & student visa was granted to me on 08 October 2009.

Please, if someone shed some light on ?
What are the options available to me ?
Can I go for a judicial review ?

Many thanks.

[vinny]

Did you apply to switch or extend before your leave had expired, as advised in 125, 126, 197?

[Obie]

Also, what was the position between 1June to 8th August when you applied.

[sagareva]

Hello Everyone,

Home Office refused my ILR 10 years Long Residence my application.

Home Office's reason for refusal:
My 10 years chain of residence broke because I was not on any visa from 01 June 2009 to 07 October 2009

My point:
Me & my employer submitted my work permit application (this is as per the previous rule, i.e. before Tiers based system)
on 03 August 2008, which Home Office did not process until 23 September 2009 (i.e. which was sitting at Home Office for over a year) although me & my employer kept chasing Home Office once every month for an update and/or outcome.

This work permit application was withdrawn on 23 September 2009 as my employer went into administration on 23 September 2009.

After that I switched into student visa & student visa was granted to me on 08 October 2009.

Please, if someone shed some light on ?
What are the options available to me ?
Can I go for a judicial review ?

Many thanks.

not a very easy one, but I would argue you had 3c leave while your application was pending -- even though, as HO would argue, it was later withdrawn so that's probably why they think it should not count

for a 3c leave, the only requirement is a valid in-time application, it doesn't depend on what ultimately happens to it

[vinny]

At that time, his employer had applied for the work permit. However, it's unclear if he made an in-time application for further leave to remain as well.

[Obie]

If he made an application for work permit, then there is not need for a separate application for leave outside the rules.

That application will confer protection under section 3C, will it not.

I believe the difficulty for the OP, is that there was a long period were no application was made.

[vinny]

At that time, I think the applications were separate.

The employer applied for the work permit.

The employee applied for further leave to remain.

An in-time valid application of the latter would be subject to Section 3C protection.

[fuzzy991]

Dear Vinny,

Many thanks for your reply.

Regarding your question:
Did you apply to switch or extend before your leave had expired, as advised in 125, 126, 197?

Please note that I applied to switch from student visa to work permit on 03 August 2008
(ie nearly 10 months before the expiry of my student visa)
My student visa expired on 31 May 2009

[fuzzy991]

Dear Obie,

Many thanks for your reply.

Regarding your question:
Also, what was the position between 1June to 8th August when you applied.

Please note that I have consulted 2 different immigration solicitors and both of them are saying the same thing that since I applied to switch from student visa to work permit on 03 August 2008 (ie nearly 10 months before the expiry date of 31 May 2009 of my student visa) this triggers section 3c and 3d where the existing leave continues till a decision is made on pending application.

Therefore section 3c and 3d were triggered from 01 June

Also, Home Office did not process my work permit application until we withdrew it on 23 September 2009
(i.e. which was sitting at Home Office for over a year) although me & my employer kept chasing them once every month for an update and/or outcome.

[fuzzy991]

Dear Sagareva,

Many thanks for your reply.

Regarding your reply:

not a very easy one, but I would argue you had 3c leave while your application was pending -- even though, as HO would argue, it was later withdrawn so that's probably why they think it should not count
for a 3c leave, the only requirement is a valid in-time application, it doesn't depend on what ultimately happens to it

This is exactly what the two different immigration solicitors are saying that section 3c was triggered on 31 May 2009 when my student visa expired on 31 May 2009, and this protects me by covering the period from 01 June 2009 till work permit was withdrawn on 23 Sep 2009

work permit was made on 03 August 2008 (ie nearly 10 months before the expiry date of 31 May 2009 of my student visa)

[Obie]

How long from work permit withdrawal of the application to the submission of the student application.

Was it longer than 28 days.

[fuzzy991]

Dear Vinny,

Regarding your second question:

At that time, his employer had applied for the work permit. However, it's unclear if he made an in-time application for further leave to remain as well.

As per old work permit immigration rules dated 01 April 2008, HO gives you permission to submit further leave to remain FLR application as soon as Home Office notification is received that work permit application has been approved.

However, please note that my employer did not received work permit approval notification from Home Office and neither any kind of other reply from Home Office (i.e. application was sitting at Home Office for over a year from 03 Aug 2008 till it was withdrawn on 23 Sep 2009) although my employer kept chasing Home Office once every month for an update and/or outcome.

[fuzzy991]

Dear Obie,

Regarding your question:

How long from work permit withdrawal of the application to the submission of the student application.
Was it longer than 28 days.

Please note that work permit application was withdrawn on 23 Sep 2009 and I switched back into student visa, and student visa was granted to me on 08 Oct 2009 (ie within 28 days)

[Obie]

It needs a closer look, but on my preliminary view, it seems the decision may be unlawful.

A reconsideration and a PAP request followed by a Judicial review may be the solution.

Perhaps a SAR request may need to be undertaken

[fuzzy991]

Dear Obie,

Regarding your question:
It needs a closer look, but on my preliminary view, it seems the decision may be unlawful.
A reconsideration and a PAP request followed by a Judicial review may be the solution.
Perhaps a SAR request may need to be undertaken

Please note that my immigration solicitors lodged Pre Application Protocol PAP with Home Office UKVI and,
a letter from Home Office UKVI dated 21 Oct 2014 confirmed that they received PAP request and they will reply within 14 days

However, its been more than 14 days and Home Office UKVI have still not responded.
My immigration solicitor have confirmed that we can now legally go for Judicial Review as 14 days have lapsed.

My immigration solicitor also made an application for Service Access Request SAR on 11 Nov 2014 and,
a letter from Home Office UKVI dated 11 Nov 2014 confirmed that they received SAR request and they will reply within 40 days.

[vinny]

Dear Vinny,

Regarding your second question:

At that time, his employer had applied for the work permit. However, it's unclear if he made an in-time application for further leave to remain as well.

As per old work permit immigration rules dated 01 April 2008, HO gives you permission to submit further leave to remain FLR application as soon as Home Office notification is received that work permit application has been approved.

However, please note that my employer did not received work permit approval notification from Home Office and neither any kind of other reply from Home Office (i.e. application was sitting at Home Office for over a year from 03 Aug 2008 till it was withdrawn on 23 Sep 2009) although my employer kept chasing Home Office once every month for an update and/or outcome.

Does this mean that you did not make an in-time FLR(IED) nor FLR(O) application?

Note that:

197. Individuals should normally submit their FLR applications as soon as possible following notification that the work permit application has been approved and in any event before their current leave expires or within six months of the date of approval of the work permit, whichever is sooner.

So, I think that a safer approach would have been to follow their advice: Make a valid FLR(IED) application, shortly before expiry of leave. Request that they put it on hold until the work permit application has been decided.

If you didn't apply for FLR in-time, then you were an overstayer from the time your leave had expired until the time you had fresh leave.

Did you make an out-of-time FLR application within 28 days of overstaying?

[fuzzy991]

Dear Vinny,

Thanks for your response.

1. As per HO rules and as advised to me by that employer, you cannot make another application if you already have a pending application, (that employer applied and successfully received work permits for 3 of their other employees).

2. Secondly, as per the HO rules and as advised by the two different immigration solicitors: section 3c and 3d are triggered from the date the visa is expired till the outcome on a pending application, is received.

Even if we were not clear, that's why we kept chasing HO for some response by being proactive and writing letters to HO every month from the date the work permit application was made ie 03 Aug 2008 till my student visa expired ie on 01 June 2009 (that is nearly 10 months)

And also writing letter to HO from the date the student visa expired ie on 01 June 2009 till the work permit application was withdrawn ie on 23 Sep 2009 (that is nearly 4 months)

There was no response from HO throughout this period of nearly 13 months ie 03 Aug 2008 to on 23 Sep 2009

3. Lastly, I am unable to understand that why would I spend my 10 years in UK and then I myself deliberately waste my 10 years by not being on any visa for 4 months from 01 June 2009 till 23 Sep 2009 (where I made a number extension applications throughout these 10 years) ?

[vinny]

Unfortunately,

an application for a work permit does not cause an applicant's leave to be extended.

[fuzzy991]

and any reason why HO never replied even though we kept chasing them in writing for over a year ?

[vinny]

They certainly fell far below their advertised service standards.

16. We will do our best to make a decision on your application by the date you ask.
17. We aim to decide 70% of all work permit (including SBS) applications within 5 working days of receipt by our payment handling service and 90% within 15 working days.
18. We will monitor the extent to which we are meeting your needs and how satisfied you are with our service and will make improvements where necessary.
19. We will continually review our standards of service.
20. We will reply promptly to all enquiries and letters, including telephone and e-mail enquiries. We aim to answer telephone calls within 3 rings, e-mails within 48 hours of receipt and hard copy letters within 15 working days of receipt.

[fuzzy991]

Many thanks for that Vinny,

As HO fell below their service standard, by:
- neither processing work permit application (which was sitting with them for one year & two months),
- nor responding to our letters & email (throughout this one year & two months period),

Therefore, is there any English Law or UK Immigration rules / regulations, which acknowledges this and provide me some sort of cover or compensation or protection ?

Please confirm.

[manci]

a letter from Home Office UKVI dated 21 Oct 2014 confirmed that they received PAP request and they will reply within 14 days

However, its been more than 14 days and Home Office UKVI have still not responded.
My immigration solicitor have confirmed that we can now legally go for Judicial Review as 14 days have lapsed.

My immigration solicitor also made an application for Service Access Request SAR on 11 Nov 2014 and,
a letter from Home Office UKVI dated 11 Nov 2014 confirmed that they received SAR request and they will reply within 40 days.
have the HO now responded to PAP and SAR?

[fuzzy991]

Many thanks for your reply Manci.

1. HO have have still not responded on PAP as it have been more than 2 months, even though their confirmation said that they will respond within 14 days.

2. My solicitor received my SAR from HO which was basically just the print out copies of my previous applications, ie my immigration history.

Please confirm if there is any English Law or UK Immigration rules / regulations, which acknowledges these delays from HO and provide me some sort of cover or compensation or protection ?
(as it have been hurting me, my career and my future badly. I am quite sure that's also the case with others who are in same situation as me).

Many thanks.