Refused ILR...extend stay/ appeal help?

[helixus]

My SET(LR) application was refused due to bad character.

I disclosed my recent conditional discharge, the nature of the offence and documents to show my criminal appeal is pending hearing in the Court of Appeal.

I have been given the right to appeal this refusal and I could also potentially extend my Tier2 visa for another 2 years. I'd rather not extend as it is a lot of money ontop of what I've already wasted, but I've been told after obtaining 3c leave and waiting for a while for the Tribunal hearing, if unsuccessful, I will have to go back home and undergo a 12 month cooling off period.

If my conviction is quashed in the meantime, is the immigration appeal the right step or a judicial review?
If my conviction stands, would I have any luck appealing at all before 24 months have elapsed?

I don't think I was considered for Limited leave to remain but in any case ILR is my ultimate goal because if I was trying to gain time, I would just extend my Tier2 which is also cheaper.

Any suggestions what to do at this point please?

[Obie]

I was thinking along the lines 276A2 extension, but it contains character requirements also.

However if the Secretary of State refused under General Grounds of refusal, that will be unlawful, and there will be a basis of appeal.

If up to the time of the appeal, a 24 months period had elapsed, you could still qualify for ILR, if at the hearing the requirements are met.

[helixus]

Quote:
''...your application is, therefore, refused under paragraph 2768 with refetence Patagraph 322 (1C)''.

Why 276A2 extension when I can get Tier2? The cost is the same and I can be sure not to fail the character requirement?

Any suggestions on what steps to follow next please?

[Obie]

Rather than refusing you and giving you nothing , they ought to have considered granting an extension. That is my point. In any event, they ought to have waited for conclusion of your appeal.

[helixus]

That is my point. In any event, they ought to have waited for conclusion of your appeal.

Must say I went for a PEO appointment. They could have still kept it pending instead of refusing though!

Here's more:

It is noted that you are 28 years of age, and have lived in the United Kingdom since 01 October 2005. You have thetefore lived in the United Kingdom for 9 years, 11 rnonths and it is not accepted you have spent at least half your life living continuously in the United Kingdom. It is also noted that you have family ties back in___. You thereforc fal, to demonstate that you meet the tequirements for limited leave to remain under paragnph 27 6ADE(1) of the Immigration Rules.
Refusal Patagtaph undet Private Life
Your application on the basis of your private life in the United I{ngdom is therefore tefused undet patagraph2T6cB with reference to 276ADE(1X|, (iii), (i9, (v), and ("t) "f the Immigration Rules.
Exceptional Circumstances
It has also been considered whether your applicadon raises any exceptional cfucumstances which, consistent with the right to respect for pdvate and family life contained in Article 8 of the Eutopean Convend.on on Human Rights, might warrant ^ grr;nt of leave to remain in the United Kingdom outside the requirements of the Immigration Rules.
.
You have not raised any such exceptional cfucumstances, it has therefote been decided iou're your application does not fall for ^ graflt of leave outside the Rules.
You have a extant leave as a Tier 2 Genenl Migant valid until 26 September 2015 and please note to understand the conditions attached to your leave to remain in the United Kingdom.


Pardon the spelling, I copy pasted the scanned document!!

[Obie]

In my opinion, I believe you should exercise your right of appeal . You have nothing to lose and everything to gain.

[helixus]

I am definitely appealing and should go for the oral hearing to gain myself more time ?

In the meantime, do I extend my Tier2 G or rely on 3c leave?

Should I get a good solicitor to draft my appeal grounds? I don't know where to begin

[Obie]

The difficulty is, Section 3C is not engaged in you case, as you had a leave before a decision was made.

It is so unfair, but it appears that the qualifying criteria for Section 3C to be invoked in a case like your, does not apply in circumstances where you have an extant leave after an application has been refused.

[vinny]

You have a extant leave as a Tier 2 Genenl Migant valid until 26 September 2015 and please note to understand the conditions attached to your leave to remain in the United Kingdom.

If you have extant leave, then I'm surprised if they said you have a right of appeal.

Probably best to extend before your leave expires.

[Obie]

As you will be aware, section 82 has been amended by the Immigration act 2014 so as to reduce the rights of appeal to about 4-5, and therefore the possibility exists that a person will be refused a human right claim or ILR, and they have an extant leave, they will still have a right of appeal, where as before Section 82 does not confer a right of appeal in circumstances, where the refusal of the variation will not result in the applicant being without leave.

I am not sure one can really say this is the few circumstance where the 2014 act favors an applicant.

However Section 118 of the Nationality Act 2002 does not appeal, due to the fact that they had a leave during and after the application, Section 3C will not apply.

It appear the Secretary of State acted deliberately in order to ensure that the appellant cannot rely on Section 3C, so they made a decision and granted a right of appeal few weeks before his extant leave was due to expire.

In my opinion, OP should not have applied and wasted so much money until his leave had expired, especially given the fact that the Home Office are seeking every conceivable way to drain an applicant as much as they can.

[helixus]

I am being advised by solicitors that I need to extend my Tier2 and that I cannot simultaneously appeal against the ILR refusal. That is not only now, but even later in the event the conviction is quashed so I would need to make a fresh ILR application. (is this right?!)

An immigration adviser however said I have very good grounds for appeal. Do they just want my money? If I fall under general grounds for refusal that cannot be right!

Please guys what should I do?

[helixus]

RIGHT OF APPEAL
you have a right of appeal against this decision under section 82 of the Nationality, Immigration and Asylum Act 2002 because the Secretary of State has decided to refuse your human rights claim.
If you wish to appeal you should complete a "notice of appeal' form and send it to the Tribunal at the address shown on the form. You can submit your appeal on line at..


So why are they telling me I cannot appeal I do not know. If your conditions have changed at the time of the hearing such as the bad character does not stand, can you not win an appeal that way?

What kind of grounds am I submitting if I go ahead with this?

[Obie]

I don't know why the solicitors are trying to confuse you.

I have alluded to the fact that your case has merits, and the Secretary of State ought to have given proper consideration to 276 A2 at the very least.

I believe you should appeal. I think you should renew the Tier 2, as there is no Section 3C at present?

I believe you should have made the ILR application towards the end of your visa.

[helixus]

Thanks Obie. I was too scared to leave it until my Tier2 ran out in case I'd be refused and had to leave the country with no plan B.

Any suggestions what my appeal grounds would be? I am completely broke as you can imagine, everything has cost an arm and a leg and more to spend still. I know some people represent themselves and I feel I could do it if this is the case of me just saying I have no conviction anymore if I'm fortunate enough at the time of the hearing. Anything more complicated than that, such as how can I argue against the decision for the time being having bad character, I do not know

[Obie]

Thanks Obie. I was too scared to leave it until my Tier2 ran out in case I'd be refused and had to leave the country with no plan B.

Any suggestions what my appeal grounds would be? I am completely broke as you can imagine, everything has cost an arm and a leg and more to spend still. I know some people represent themselves and I feel I could do it if this is the case of me just saying I have no conviction anymore if I'm fortunate enough at the time of the hearing. Anything more complicated than that, such as how can I argue against the decision for the time being having bad character, I do not know

Well it seems to me that they acted unlawfully in not waiting for the outcome of the appeal.

No consideration given in regards to grant of extension under the long residency provision.

[helixus]

Many lawyers I've spoken to have said they had no responsibility to wait but make the decision based on the facts at the time.

It is because of this, according to them, that an appeal would fail as well, because at the given time I had a conviction even if I manage to rid of it at a later date.

They are also surprised I was given the right to appeal at all...

The only person who's been positive about my situation is an immigration advisor who wants a hefty fee for representation. I feel I wouldn't need where to begin with the grounds so I should probably pay that and hope for the best?

Someone said I should have the right to have a review of the decision under the Immigration Rules. - should I rather this than an appeal? What is more straightforward?

A solicitor even said my Tier 2 extension could be at risk due to bad character!

[Obie]

Why did he say that he say your Tier 2 will be at risk?

[helixus]

Someone said it might be? I asked why because the bad character requirement doesn't apply to that and the offence wasn't even serious. I think they're all idiots who are after money.

I'm so lost

[Obie]

Well I beg to differ with them.

I don't they are correct that you will not qualify for Tier 2.

You actually qualified under 2 potential basis , even if the refusal of ILR was correct.

My understanding of the Law/policy, which has been the case for a long time, is that you cannot make a deportation order or an adverse decision on a person, if the sentence or the decision on the basis of which you intend to take the adverse decision, is the subject of an ongoing judicial proceedings.

[helixus]

Can anyone here help me draft grounds along the liens of: 1st conditional discharge is not a conviction and 2nd I have a pending criminal appeal for this. Would I be able to represent myself?
The amount of money I am being asked to do something that could be highly unsuccessful is ridiculous and for that much I'd be better off re-applying for ILR if cleared.

[helixus]

My health service charge for the Tier2 extension has been refunded.

I reckon this means my application has been refused. I called the HO straightaway, who confirmed a recorded letter was sent out to me today but they do not know the contents of it.

Please what do I do now as I am in a state of mad panic with an ongoing job in a country I've lived for over 10 years!

Please help me what do I do

[Obie]

It may be that you made an invalid application or failed to pay the correct fee or your application was refused.

[helixus]

It may be that you made an invalid application or failed to pay the correct fee or your application was refused.

I extended my work visa on which I had been for 4 years previously. I paid the right fee too. I will have to wait and see what the exact reason is but I feel it has all got to do with the conviction.

Also I read online the surcharge is refunded when you have no right of appeal either.

What am I going to do now

[Obie]

But I advised you to exercise your right of appeal, I do hope you did not make the mistake of not exercising it.

NHS surcharge will be refunded in circumstances where an application has been refused and there is no right of appeal.

[helixus]

Obie, I did appeal against the ILR refusal in September and I am waiting for them to set a date in the next 8 months. I remember you saying this granted me no 3c leave due to having current leave at the time. You advised to extend the Tier2 which is exactly what I did. I have just checked my bank balance and the Health Surcharge has been refunded so I can be certain the extension has also been refused. While I will wait to see what the exact reasons are for this, I feel it has to do with the conviciton. How is it that you cannot even get a temporary visa due to this? I am panicking as I haven't got a clue how long I have before I am made to leave the country and I have exhausted all my options, what do I do now?