ILR Refused

evku1973 · Post by **evku1973** » Sun Apr 17, 2005 12:18 am

Hello All,

I applied for ILR on 20.11.2003 on the grounds that I had lived in the UK for more than 10 years. They rejected it because I was illegal for 6 weeks.

My Immigration history goes like this. I came into the UK in Sept 1993 with a student visa for 2 years (college) and then got another student visa in Sept 1995 for 3 years (university) that lasted me until 1998. I then got married to my long time girlfriend but this was 6 weeks after my student visa had run out. Unfortunately I broke up with my wife a couple of months before my visa run out.

I am appealing on the ground of the fact that I have always worked and have never had to take money from the state. I have also got a good job.

How do you think I should go about this? What kind of questions will I be asked at the tribunal? And what do you think are my chances?

Could appreciate a speedy response as my hearing date is on Monday 16.04.2005.

Cheers

nyrnu · Post by **nyrnu** » Sun Apr 17, 2005 3:19 pm

During the 6 weeks, was you staying in the uk all the time without any legal visa covered? Did you submit dependent visa application before the expiry date of student visa?

If neither visa covered during the 6-week, nor submitted any visa renewal application before the expiry date of the previous visa, as Home Office referred, I am afraid it have become un-lawful stay during this period and thus the clock was not continued any more.

evku1973 · Post by **evku1973** » Sun Apr 17, 2005 3:55 pm

Yes I was here illegally because I did not think we were going to stay in the UK. Our plan was to get married and then go and live in France.

I am hoping that they will let me stay on the grounds that I have worked and paid taxes for the last 11.5 years.

Can some advice on this question. If they reject my ILR application the second time, can I change my application and apply for a work permit instead? Are they likely to give me a deportation order.

Chess · Post by **Chess** » Sun Apr 17, 2005 6:58 pm

You need a competent lawyer to handle your case. It is not DIY teritorry am afraid!

Good luck

Jeff Albright · Post by **Jeff Albright** » Mon Apr 18, 2005 12:03 am

evku1973 wrote: I am hoping that they will let me stay on the grounds that I have worked and paid taxes for the last 11.5 years.

Best of luck with this, hope you will get it but...
they may still dismiss your appeal because in strict law you were still illegal for 6 weeks...

, hence the term is 14 years and not 10... I know it is ridiculous but the immigration system works just like a machine or computer - if there is a law on your side you will get it... otherwise - not regardless whether it is fair or not...
It is worth remembering that once you entered the appeal process, this time will not count towards your 14 years term if you have no status now... in other words the clocks stopped where the appeal started... however if you are on a legal status now then the clocks continue ticking...

If you let us know what your status was before 20.11.2003 and what your status is now then it will be helpful.
Also, how did you manage to regularise your position after those 6 weeks in 1998? Had it been definitely regularised?
If you are working now, are you doing so legally?
Perhaps if you have a legal status now, you can keep renewing it until you have 14 full years and then you can apply for ILR? I understand you only have 2.5 years left to go.

evku1973 wrote: If they reject my ILR application the second time, can I change my application and apply for a work permit instead?

Depends on your status now. If you have it, then you can apply incountry. If I were you I would have gotten a work permit anyway because if you were unsuccessful with your appeal, you could just leave the UK for 2 days, then get an entry clearance and return immediately.

evku1973 wrote: Are they likely to give me a deportation order.

If they had not issued you with a Deportation Order during those 6 weeks in 1998, then now it will not happen.
Deportation orders are only currently issued against criminals, drug dealers and terrorists.
They may simply dismiss your appeal and ask you to leave, in this case, get your work permit ready and get an Entry Clearance from the embassy and return.

Good luck!

evku1973 · Post by **evku1973** » Thu May 05, 2005 7:32 pm

[b]Hi Guys,

I need some more advice. I have just received another letter refusing my ILR

and would like to ask you guys some more questions on how I should deal with this issue. The letter said that I had 5 days to appeal.

1. Should I apply for a work permit only or should I appeal for the ILR as well as the work permit? Would the home office find it unusual if applied for both visas?

2. If I apply for a work permit, how much resource in time, cost and effort will my employer have to give? How long does it usually take? The reason I ask the question is because I happen to be the only foreigner at my place of work and I am not sure if the HR department will put the effort in if the process is too costly and too resource taking?

3. Will I need a solicitor if I to obtain a work permit?

Any real stories and advice would very much appreciate.

Cheers

Evan

try-one · Post by **try-one** » Thu May 05, 2005 9:13 pm

Hi Evan,
A work permit takes less than a week to be approved (approx). You don't need a solicitor for the WP application. Your company needs to provide accounts information, company information and the only tricky part is that they need to show that they have advertised the job an no local-eu candidate was found. that would take 2 months approx.
Pending your other ILR situation, I strongly advise you to contact a specialist, as chess clearly said " you are not in DIY territory", you have 5 days and you might be loosing your time trying to get a ILR or WP....

evku1973 · Post by **evku1973** » Thu May 05, 2005 10:04 pm

[quote="try-one"]the only tricky part is that they need to show that they have advertised the job an no local-eu candidate was found. that would take 2 months approx.quote]

can you let me know if my employer will need to advertise for my job again even though I have been in the role for approximately 4 years? If so, would they show there advertisements from 4 years ago.

Cheers

Evan

Kayalami · Post by **Kayalami** » Fri May 06, 2005 6:16 pm

evku,

WP
Appropriate answer requires a knowledge of whether your job is in Tier 1 or Tier 2. The latter requires proof of advertising to the resident labour pool i.e. EEA nationals and permanent residents with no one meeting the job criteria relative to you. If it is a Tier 2 job and the employer can document that the skills you have acquired in the role are such that no other person from the resident labour pool meets them it will be approved. I doubt the employer has docs from 4 yrs to apply retrospectively but in any case it is best to work from a position that the role is advertised today..i.e. yes it must be advertised.

ILR
Jeff has enquired as to your UK status vis a vis the 10 yr route. You mention no status post 1998 nor details of your ex-spouses nationality/ UK immigration status - such is vital to provide definitive feedback. On 1st impressions I gather you have had no leave since your student visa expired..IND would have waived any illegality post issuance of a visa in 1998 after your studies. As such your ILR application has been rightly refused..it is not in accordance with the rules...what paragraphs of the rules does the refusal letter state?

Summary

1. You are too short on detail on the ILR matter to get a relevant response.

2. An appeal is a waste of time though I'm suprised you got one based on the limited info you provided.

3. You will not be deported but remain liable for removal at any time you come to the attention of the Immigration Service (some can live with this some can't).

4. The WP route is the ideal way forward but have you considered the HSMP scheme if you do meet the criteria? Now is the time to apply prior to Labour starting the implementation of their 5 yr immigration plan. Their reduced majority IMHO will result in some mods to the plan but the overall theme shouldn't change overall.

evku1973 · Post by **evku1973** » Sun May 08, 2005 6:14 pm

Thanks for response Kayalami,

In response to your questions

My Job is Tier 2.

Between [/quote]You mention no status post 1998 nor details of your ex-spouses nationality/ UK immigration status - such is vital to provide definitive feedback[quote]

My immigration status between 1998 and 2003 was remain to stay on condition that I was married to a EEA national. My ex-spouses nationality was French.

I have tried the HMSP Scheme but my earnings were 3 grand short, so I didn't gain enough points.

Cheers

Evan[/quote]

Jeff Albright · Post by **Jeff Albright** » Sun May 08, 2005 7:32 pm

evku1973 wrote:My immigration status between 1998 and 2003 was remain to stay on condition that I was married to a EEA national. My ex-spouses nationality was French.

Evan, a few things we still need to be clear about.
Have your status been granted to you or has your application to remain as a spouse to the EEA national been pending all this time?
To be able to have the right to stay in the UK on the basis of marriage to the UK or EU national you must be BOTH married AND live your relationship at the point when you apply to remain in the UK indefinitely. In immigration jargon your marriage must be "subsisting". If you are still married but live separately from each other, this does not give you the right to remain in this country indefinitely.

Kayalami · Post by **Kayalami** » Mon May 09, 2005 11:32 pm

evku,

1. Were you granted a visa/ right of residence permit stamp or card to remain in the UK as the spouse of an EEA national exercising treaty rights between 1998 and 2003?

2. On what date did such expire?

3. Are you still married to your spouse?

4. Is your spouse still in the UK?

5. If yes to 4 is she still in employment/ self employment?

6. Do you have children (to include adopted either courts or defacto) from this relationship?

evku1973 · Post by **evku1973** » Tue May 10, 2005 6:53 am

1. Yes, I was granted a residence permit stamp to remain in the UK as the spouse of an EEA national exercising treaty rights between 1998 and 2003.

2 This Visa expired in 26th Nov 2003 and a month before that I applied for an ILR.

3. I am still married but we do not live together

4 and 5. My Spouse does contract work between the UK and France but pays tax in the UK. I would approximate that she spends more than 8 months of the year in the UK.

6. We have no children

evku1973 · Post by **evku1973** » Tue May 10, 2005 5:46 pm

Need some more advice guys....

I spoke to my lawyer today and advised me to ask the company that I work for to apply for a work permit on my behalf. He also said that he will appeal against my ILR refusal as well, but he said they are likely to refuse an ILR again so that is why he wants me to run two applications concurrently. Is this good practice?

I have also today been in touch with a consultant from workpermit.com and she said that I can't switch my status and therefore will need to go back to Kenya and apply for the work permit from there. Is this true and if so, are there any exceptions?

I personally feel betrayed by my lawyer because he insisted that I should apply for a ILR with has now taken more than 18 months to resolve. Could I possibly claim to the home office that if I had had good immigration advice in Nov 2003 then I would have sorted myself out?

Does anyone know of a good work permit lawyer firm?

Kayalami · Post by **Kayalami** » Wed May 11, 2005 3:02 pm

evku1973,

Regratable that you did not seek legal advice at ILR application stage - you were entitled to apply for such on the basis of the EEA family member residence permit on a stand alone basis. Instead you went on the grounds of 10 yr residence...is there a particular reason why?

It appears the the Workpermits consultant is refering to an in-country switch once Work Permits UK approve your employers sponsorship. They are correct in that you have no leave to vary so would need to apply for a WP visa abroad in a country where you are a national or legal long term resident. An exception to such may be made under the most compassionate of circumstances - I fail to note any (e.g. terminal illness of a spouse or dependent whom you are supporting) that apply to you based on the info you provide. Comments to the HO pertaining to a legal representative prejudicing your case AFAIK have no discernable effect - you can complain to the law society. Did you explain all your circumstances to the lawyer when you applied for ILR?

Your marital status and EEA aspects of your UK imigration status means that this is still an avenue open to you - EU case law has seen EEA family memers continue to reside in the UK despite formal separation and even divorce...each case law would be specific with some covering a continuing right of residence based on dependents. Talk to workpermits again - they may have an EU law expert. Further help can be sought from an organisation registered or otherwise exempted by the Office of the Immigration Services Commissioner (OISC) - ensure they have an EU law expertise. Until the EU aspects are considered I would suggest you sit tight - post grant of any leave to remain, Mombasa can be very well your next port of call (I love the madafus).

Good luck

Chess · Post by **Chess** » Wed May 11, 2005 4:41 pm

evku1973 wrote:?

I have also today been in touch with a consultant from workpermit.com and she said that I can't switch my status and therefore will need to go back to Kenya and apply for the work permit from there. Is this true and if so, are there any exceptions?

Mzee,

Osijali sana - lakini mambo ni hatari!

My advise is that you need to sit down and lay a good strategy which will solve these problems - we dont want you to be heading to Jomo Kenyatta airport yet

Seek a competent lawyer - and as advised by Mzee Kayalami, you should try EU route..

Kwaheri Mzee

evku1973 · Post by **evku1973** » Thu May 12, 2005 2:42 pm

Thanks Kayalami, you have been very helpful

The reason I decided to go for the ILR is because that was what the lawyer advised me to do after I had advised him of my situation. It I had known that I could apply through the EEA route then I would have done so.

I have asked my lawyer about the EU law but he hasn't got a clue so I intend to look for more resources of information myself.

Has anyone out there know of a case that has been accepted using the EU law? If so, please forward the details to me.

Cheers Guys

mercury · Post by **mercury** » Sat May 14, 2005 5:03 am

evku1973,

How long did they take to decide your appeal (from the day you lodged it)?

regards
Mercury

evku1973 · Post by **evku1973** » Sat May 14, 2005 11:33 am

They took approximately 1 month

mercury · Post by **mercury** » Sun May 15, 2005 5:12 am

Thats very quick for an appeal. Did they actually send it to Immigration Appelete Authority?

uk123 · Post by **uk123** » Mon Jun 06, 2005 3:44 pm

Hi evku1973, When you say they "refused" your ILR application, did they just send you a letter or did they stamp a rejection in your passport? I am asking this because I am also planning to apply for ILR and since I have 1 year's break in my UK stay during last 5 years, I am afraid that my ILR application would also get refused. I am concerned about if they stamp a rejection in our passport because that might have a negative impact on my future. Your answer is very important to me. Please do respond. Thanks !!

evku1973 · Post by **evku1973** » Sun Jul 17, 2005 9:35 pm

Unfortunately the home office has finally refused my ILR even after appealing twice and has issued me with a letter asking me to leave the UK with immediate effect. Therefore I would like to ask you some questions:

1. My lawyer has told me not to worry about that the letter. He claims that they are only trying to intimidate me. Is this true?

2. Have I got anymore rights i.e. EEA route

3. Can the company I work for still apply for a work permit on my behalf?

4. The letter I have received from the HO says that I have to leave the country. By law, how long can I get away with before the HO come and knock on my door.

5. Has anyone out there managed to switch there visas since Nov 2004 while in-country? If so, what were the exceptional reason that got you the switch?

Anyway help would be much appreciated.

Cheers

Ev

Smit · Post by **Smit** » Mon Jul 18, 2005 12:14 pm

Evku,

I have just been reading your postings. A couple of things come to mind, you say you have been working and paying taxes for 11.5 years yet you were on a student visa for the initial 5 years in the UK. You were not allowed to do any work on a student visa in those days, did you obtain a work permit as well during that time?

My quick response to your queries:

!. I would not ignore the Home Office letter, wonder why your lawyer is asking you not to worry about it. Your ILR application and appeals have been rejected, and you should leave the UK, otherwise you risk jeopardising any future applications.

2. Your relationship with your wife has ended so I don't see how you are entitled to EEA rights (but I stand to be corrected).

3. Yes, your employer can still sponsor your work permit, but you will need to obtain an EC from Kenya if the work permit application is approved.

4. Does your letter not state the period in which you are required to leave the UK? I would think it is 14 or 28 days.

5. Don't know.

Maybe you should waited to apply for ILR under the 14 years concession rather than 10 years. But this is moot now.

evku1973 · Post by **evku1973** » Mon Jul 18, 2005 6:27 pm

Hi Smit,

About the 11.5 years.... all I was trying to prove is that I didn't take any money from the state and that in that 5 years I paid my NHS contribution plus a bit of tax.

Answering your question on my letter from the HO. The letter does not have state how long I have got before I leave. Therfore, I only assume that I am allowed to stay for atleast 3 months.

Cheers

Ev

antontony · Post by **antontony** » Mon Jul 18, 2005 11:29 pm

Hello,

The grave problem is that your immigration clock stopped the day you became an overstayer.

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