Unmarried partners/28 days rule

[Musketeer89]

Hi,

Application History

1) Applied for FLR(M) application in February 2014.

2) Application rejected in April 2014 and appealed the decision.

3) First tier tribunal oral hearing in August 2014. Judge upheld the decision in 2 days.

4) Appealed against First tier judge's decision.

5) Appeal to Upper tribunal allowed in November 2014.

6) Upper tribunal oral hearing January 2015. We are expecting it will be upheld too.

Questions:
Our application was rejected by first tier tribunal based on the fact we didn't meet the 2 year rule in August 2014 but were able to meet it in December 2014. So as per today we meet all the requirements for unmarried visa application.

1) The home office representative said during the upper tribunal hearing the case needs a fresh application. If Upper tribunal sends rejection will we be able to make a fresh application within 28 days from within the UK or do I have to return to my home country to make a fresh application?

2) Is there any rule that if I leave the UK and make any entry clearance application, will my application be automatically rejected for a period of 12 months due to time bar?

3) Judge during the hearing said she is not sure whether I will be able to make a fresh application within the UK because of section 3c/3d. What is section 3c/3d? I tried reading about it but totally confused.

Any help will be appreciated and we are looking to seek some professional help so any reviews would be helpful too.

Best Regards

[Choc-Ice]

Be careful when its come to re-applying because it your application fails (which is likely under immigration requirement)there will be no appeal process! Upper Tribunal will probably uphold FTT decision, the judge will most likely stick to the situation report when you initially applied and not at the current date..Section 3c will end as soon as UT gives judgement.

Do you have any kids? If not then your best bet will be to apply from your home country as long as you fulfil the requirement! There might be a delay but you will most like succeed at the end..If you apply in country and you don't succeed with no appeal right..Long hard road ahead under the current political climate! Good luck

[Musketeer89]

Thank you Choc-Ice for your reply.

We are a same sex couple so we don't have any kids.

In terms of fresh application as per today we meet all the requirements for same-sex unmarried partners. We are living in same house for more than 2 years. We meet the financial requirement and home office don't have any objection against genuiness of our relationship.

I am an Indian national and they changed the law against homosexuals in November 2013. So to be honest very scared of returning.

I read somewhere if my appeal is rejected and if I return home I will face a time bar for twelve months during which all applications will fail. Is it true?
Are there some changes in Sec 3c and 3d in Oct 2014 that prevents making fresh applications within the UK?

Best Regards

[Choc-Ice]

Thank you Choc-Ice for your reply.

We are a same sex couple so we don't have any kids.

In terms of fresh application as per today we meet all the requirements for same-sex unmarried partners. We are living in same house for more than 2 years. We meet the financial requirement and home office don't have any objection against genuiness of our relationship.

I am an Indian national and they changed the law against homosexuals in November 2013. So to be honest very scared of returning.

I read somewhere if my appeal is rejected and if I return home I will face a time bar for twelve months during which all applications will fail. Is it true?
Are there some changes in Sec 3c and 3d in Oct 2014 that prevents making fresh applications within the UK?

Best Regards

Hi Musketeer89 ,

Last time I checked ;

Under sections 3C(2)(c) leave continues while an in-country appeal is pending.

Under section 104 of the Nationality, Immigration and Asylum Act 2002 an appeal is pending from the time it is brought until:

 it is finally determined (In your case UT)
 withdrawn, or
 abandoned.

Once an appeal is no longer pending, 3C or 3D leave will also stop.

So there's nothing stopping you from making a fresh application after the decision,You wont get any right of appeal! Your 3c leave will not confer any right.Changes made in Oct. 14 don't grant any further leave after that. However you mention you are a same sex couple, have you considered asking for an Exception under Ex. 2.

EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner.

[Musketeer89]

Thanks again Choc_Ice for the information.

Next step for us would be to wait for the UT decision letter which is likely to be upheld FTT decision.

We are planning to change our solicitor. So next step is to find a good law firm who can take us through this year long emotionally draining process.

Best Regards,
Musketeer

[Obie]

Why are you so pessimistic about the prospect at the Upper Tribunal.

I sort of agree with the previous poster to a certain extent.

Section 3C continues until your appeal is finally determined.

After it is determined, Section 3C continues to apply until the Secretary of State has given effect to the decision of the Tribunal.

If the decision is unfavourable, you have the right to appeal to the court of appeal.

If you choose not to, you have to wait 28 days after the Upper tribunal decision, and make a new application.

28 days is the period for applying for permission to appeal to the court of appeal.

If you hearing was heard in January, and you clicked 2 years in December, and you lawyer applied to the Tribunal to consider new evidence, the chances are, your will succeed.

[Musketeer89]

Thanks Obie for your reply.

You are correct I am being too pessimistic after hearing just because, our case was slaughtered mercilessly by UT judge. As you said we should bit more helpful than what we are...

No our solicitor didn't put any new evidence in front of the UT judge. He said new evidence wouldn't be accepted by UT so there was no discussion about we meeting all the requirements as per the hearing date. All the talk was about the date FTT hearing.

So, I am preparing myself mentally for all options we can pursue after getting the decision.

Best Regards,