Administrative review or appeal

[ozgendeniz83]

Hi,

I wanted quickly asked something. I have been refused for my ILR application on 9th of September (the details are here viewtopic.php?f=44&t=306324). I was told in my decision letter that I can submit an administrative review, which I submitted on 14th of September. However, I just talked a solicitor and he thinks that I may have right to appeal even though that was not mentioned in my decision letter as I have a British husband and daughter by birth (Under Human Rights).

First, would it be possible even though HO did not give me an appeal option?
Second, can I submit administrative review and appeal at the same time?

In summary, I am a highly skilled scientist (endorsed by the Royal Society as an "exceptional promise". I have a British husband (married in 18.02.2017) and a British daughter (born in 13.09.2018). I have worked in the UK for 6 years and held Tier 2 visa for more than 5 years. You can find the details in my initial post (viewtopic.php?f=44&t=306324).

Many thanks for your comments.

[vinny]

Second, can I submit administrative review and appeal at the same time?

Home Office may dispute that both may be submitted at the same time.
Administrative review:

Appeals

If an applicant has a right of appeal, they will not be eligible to submit a request for administrative review of the same decision. You must reject any application for administrative review about a decision where there is a right of appeal.

If an applicant has a right to request an administrative review of an eligible decision, they will not be entitled to an immigration appeal against that decision. If they try to appeal a decision at the tribunal when there is no right of appeal, the Home Office will argue that the appeal must be rejected because the tribunal has no jurisdiction (legal authority) to hear it.

For more information see Invalid appeals.

[ozgendeniz83]

Great, thanks for your reply vinny.

We decided to wait for the administrative review decision and if it is negative I will apply for Global Talent Visa. We are now trying to decide whether inside or outside UK application would be better for me, given that we are not sure if we can convince the HO to see the facts that I am not an overstayer and I am a highly skilled scientist with British family.

[ozgendeniz83]

Hi,

Now after reading couple of more posts I feel like admin review is waste of time and the HO probably will not change their decision.

In my refusal letter, one of the reasons was :

“We contacted you via email on two occasions, on 01 July 2020 and again on 12 August 2020 to attempt to gain further information about the Tier 2 gap, however we have received no response to our enquiries”.

In my administrative review, I sent documents providing evidence that we sent our responses twice and our three-page long explanation and emphasised my personal and professional life in the UK. I am also planning to add an explanation to challenge Section 3C for my case.

Do you know any articles or known cases to add to strengthen my point about Section 3C?

If administrative review is highly likely to be unsuccessful, would another refusal (ILR+AR) affect my future visa application (Global Talent Visa Stage 2)?

Would I have higher chances to apply to Global Talent Visa inside or outside the UK? Inside the UK applications take 8 weeks and outside applications take 3 weeks. But given that I already have an ILR refusal, would it be riskier to apply from Turkey (my home country) or from the UK (if they count me as an overstayer)?

Many many thanks for your comments.

[vinny]

If they (wrongly) interpret that you have overstayed, then W3.5 Breach of immigration laws may prevent you from applying in the UK.

[vinny]

AS (Ghana) v Secretary of State for the Home Department [2016] EWCA Civ 133 (20 January 2016) and JR078872018 [2019] UKAITUR JR078872018 (30 October 2019) (paragraph 24.) gave a general analysis of the legal framework for Section 3C and AR prior to the introduction of a Right of appeal for leave to remain applications under the EU Settlement Scheme, under Appendix EU.

I don’t see why Section 3C wouldn’t be engaged when the prerequisites of engaging Section 3C are satisfied. Moreover, if they had not refused a valid in-time application under Appendix EU, then there should be no impediment to vary a leave to remain application under Appendix EU to an indefinite leave to remain application under Part 6A before a decision.

It’s different for applicants subject to the EEA regulations who initially apply under the EU Settlement Scheme, as they would have had no leave to remain under the Immigration rules. Therefore, Section 3C would not have been engageable, until after they were granted leave to remain under Appendix EU and subsequently made in-time further or indefinite leave to remain applications.

If you had made an application under the EEA regulations, then Section 3C would also not have been engageable.

If my analysis is correct and you have made an in-time AR against your ILR refusal, then I don’t think you are an overstayer at this point in time.

[ozgendeniz83]

Many thanks for your reply vinny.

Should I wait for administrative review decision before applying the Global Talent Visa? Would it change anything if apply before the decision or just on the day of decision (in case the decision is maintained)?

If it does not change anything I rather wait for administrative review which I submitted on 14th September 2020l.
I am also thinking to send the below explanation about Section 3C based on what you suggested. Do you think that is a reasonable explanation?

Thanks
"ILR application was refused on 9th September 2020. Reason for the decision was:

“Your previous Tier 2 leave expired on 14th October 2019. On 31st July 2019 you submitted an application for leave under the EU Settlement Scheme however as per the Section 3C rules:
Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations Immigration (European Economic Area) Regulations 2006. An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain. We contacted your representative via email on two occasions, on 1st July 2020 and again on 12th August 2020 to attempt to gain further information, however we have received no response to our enquiries. As 3C leave was not extended when you submitted your EU Settlement application, you have not held valid leave in the United Kingdom since 14 October 2019 and therefore do not meet the requirements to be granted Indefinite Leave to Remain under Part 6A Paragraph 245HF(j), with reference to Paragraph 39E of Part 1 of the Immigration Rules.”

In the decision letter and highlighted in bold, the HO is referring to an application under the EEA Regulations. While it is true that Section 3C is not engaged for these applications, I applied under the EU Settlement Scheme, which was an application under Appendix EU. Applications for leave to remain under Appendix EU are subject to Immigration Rules, as confirmed by the title: “Immigration Rules Appendix EU”; they are not applications under EEA regulations. Crucially, this was evidenced when my employer, xxxxxx, conducted an Employer Checking Service via UK Visas and Immigration of the Home Office and received a notice on 14 November 2019 with the unique ECS Reference number xxxxxxx, which confirmed that I still had the right to work in the UK until 13 May 2020. Furthermore, the HO clearly stated in this ECS Verification letter that the application type was “an ongoing application for leave to remain in the UK”. Therefore, this is clear evidence of the extension of my Tier 2 visa and subsequent right to work, as protected under Section 3C of the Immigration Act 1971. If Section 3C was not engaged, then my right to work would not have been extended.

The Immigration Act 1971 clearly states that Section 3C applies if:
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.
(https://www.legislation.gov.uk/ukpga/1971/77/section/3C)

In summary, before the immigration decision, I had varied and in-time valid Leave to Remain application under Appendix EU to an Indefinite Leave to Remain application under Part 6A. Therefore, Section 3C should, and was, engaged."

[vinny]

Wait for them to decide the AR. If you make an application for leave to enter or remain while an AR is pending, then the AR will cease to be pending under

AR2.10 Administrative review is not pending when:
...
(b) administrative review has previously been pending and the individual in respect of whom the eligible decision has been made submits a fresh application for entry clearance, leave to enter or leave to remain. In this case the day prior to the day on which the fresh application is submitted is the last day on which administrative review is pending.

[ozgendeniz83]

Thanks vinny. If AR does maintain the decision this would not add extra complication for my GTV application (if I do it on the same day of the decision), right?

Secondly, do you think the explanation about Section 3C (mainly based on your suggestions) is reasonable to send as AR documents?

Thanks

[vinny]

Let’s hope that they confirm that Section 3C was engage and still active and reconsider your ILR application under Tier 2.

I think our explanations are reasonable. Invite others to comment.

[ozgendeniz83]

Thanks.

How can I invite others to comment? Who should I invite? Sorry I havent used this board often.

[vinny]

Perhaps your lawyers, some other posters, (eg @Obie, @CR001, @secret.simon), etc?

[ozgendeniz83]

Can someone please comment and help in my situation?
@Obie, @CR001, @secret.simon can you please advise?

Thanks

[vinny]

Although you are writing a letter for an AR, see also How to write a pre-action letter that makes the Home Office change its mind for hints.

[ozgendeniz83]

Very helpful Vinny.

I modified my letter slightly based on the tips I got from the link you sent.

"This is a letter to challenge the decision dated 9th September 2020 to refuse my Indefinite Leave to Remain (ILR) application (UAN: REMOVED).

Background:
I first entered the UK on 13th June 2014 with my Entry Clearance visa under Tier 2. I held my Tier 2 Visa status until 14th October 2019. Before my most recent Tier 2 visa expired, I applied for the EU Settlement Scheme as the primary carer of a British citizen, who is my daughter, on 31st July 2019 and submitted my biometrics on 16th August 2019 (application number: REMOVED). I applied for ILR via Tier 2 (General) Route on 20th February 2020, while my EU Settlement Scheme application was still pending.

ILR application was refused on 9th September 2020. Reason for the decision was:

“Your previous Tier 2 leave expired on 14th October 2019. On 31st July 2019 you submitted an application for leave under the EU Settlement Scheme however as per the Section 3C rules:
Section 3C does not extend leave where an application is made for a residence card under the EEA Regulations Immigration (European Economic Area) Regulations 2006. An application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under the EEA Regulations are being exercised therefore the applicant does not require leave to enter or remain. We contacted your representative via email on two occasions, on 1st July 2020 and again on 12th August 2020 to attempt to gain further information, however we have received no response to our enquiries. As 3C leave was not extended when you submitted your EU Settlement application, you have not held valid leave in the United Kingdom since 14 October 2019 and therefore do not meet the requirements to be granted Indefinite Leave to Remain under Part 6A Paragraph 245HF(j), with reference to Paragraph 39E of Part 1 of the Immigration Rules.”

In the decision letter and highlighted in bold, the HO is referring to an application under the EEA Regulations. While it is true that Section 3C is not engaged for these applications, I applied under the EU Settlement Scheme, which was an application under Appendix EU. Applications for leave to remain under Appendix EU are subject to Immigration Rules, as confirmed by the title: “Immigration Rules Appendix EU”; they are not applications under EEA regulations. Crucially, this was evidenced when my employer, REMOVED, conducted an Employer Checking Service via UK Visas and Immigration of the Home Office and received a notice on 14 November 2019 with the unique ECS Reference number REMOVED, which confirmed that I still had the right to work in the UK until 13 May 2020. Furthermore, the HO clearly stated in this ECS Verification letter that the application type was “an ongoing application for leave to remain in the UK”. Therefore, this is clear evidence of the extension of my Tier 2 visa and subsequent right to work, as protected under Section 3C of the Immigration Act 1971. If Section 3C was not engaged, then my right to work would not have been extended.

The Immigration Act 1971 (https://www.legislation.gov.uk/ukpga/1971/77/section/3C)
clearly states that Section 3C applies if:
(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,
(b) the application for variation is made before the leave expires, and
(c) the leave expires without the application for variation having been decided.

In summary, before the immigration decision, I had varied and in-time valid Leave to Remain application under Appendix EU to an Indefinite Leave to Remain application under Part 6A. Therefore, Section 3C should, and was, engaged.

Finally, I provided evidence that my solicitors submitted the requested further information to the Home Office twice, on 21st July and 12th August 2020, and this evidence I sent was already linked to my administrative review application (UAN: REMOVED)."

[seagul]

Furthermore, the HO clearly stated in this ECS Verification letter that the application type was “an ongoing application for leave to remain in the UK”. Therefore, this is clear evidence of the extension of my Tier 2 visa and subsequent right to work, as protected under Section 3C of the Immigration Act 1971. If Section 3C was not engaged, then my right to work would not have been extended.

Had the ECS verification letter confirmed pacifically the engagement of section 3C by UKVI which now you are implying by yourself to have actually been the case? In my opinion (which might not necessarily be correct) the only time section 3C awakens when the previous and prospective (current) applications both falls under the boundary of UK immigration act 1971.

[ozgendeniz83]

Hi saegul. Not ECS did not mention anything about Section 3C, but they stated that "this person has the right to work subject to the restrictions in Section 4." due to "an ongoing application for leave to remain in the UK".

Since they considered my EUSS application as leave to remain application and the reasons vinny explained, I am challenging their decision.

[ozgendeniz83]

Just to update you,

I have submitted my documents for admin review last Friday. If they decide within 28 days, I should hear back from them before 12th October.

I am now preparing myself for the next stages. If admin review comes back negative and they maintain their decision, I will apply to Global Talent Visa Stage 2 on the same day. The question is whether to do inside or outside the UK application.

I was told that both have their risks. If I apply outside the UK and get rejected due to current ILR rejection, coming back to the country will be very risky and challenging.

If I do inside the country application, then I might have breached immigration law as admin review will be refused. (even though I will apply to GTV Stage 2 the same hour as I hear from admin review).

[ozgendeniz83]

I also contacted relevant MPs to challenge the HO decision during my admin review. Is there anything else I could do to strengthen my chances?

[seagul]

Just to update you,

I have submitted my documents for admin review last Friday. If they decide within 28 days, I should hear back from them before 12th October.

I am now preparing myself for the next stages. If admin review comes back negative and they maintain their decision, I will apply to Global Talent Visa Stage 2 on the same day. The question is whether to do inside or outside the UK application.

I was told that both have their risks. If I apply outside the UK and get rejected due to current ILR rejection, coming back to the country will be very risky and challenging.

If I do inside the country application, then I might have breached immigration law as admin review will be refused. (even though I will apply to GTV Stage 2 the same hour as I hear from admin review).

Also, be mentally prepared to receive an offer of flrfp visa - 30 months from UKVI for which anecdotally they have been more inclined to, which although isn't guaranteed at all the times.

[vinny]

Good luck and hope you get good news to share.

[ozgendeniz83]

Hello. I am still waiting for an admin review decision (today is the 25th day).

But we got an email from Home Office through our local MP. In the email they said that they are still considering my admin review, but also wrote this :
"On 31 July 2019, Dr Deniz submitted an application under the European Union
Settlement Scheme (EUSS). This application currently remains outstanding.
Dr Deniz has informed you that she does not have permission to work whilst
her application is ongoing. Please pass my apologies to Dr Deniz for this
incorrect advice as she does have permission to work whilst her application
is being considered. As she submitted her settlement application prior to
the expiry of her previous application, she is covered by Section 3C."

So this should prove that I should be covered by Section 3C and they should reconsider my ILR application decision. Of course due to the chaos at the HO, I do not know what is gonna happen. But I thought I would update you with this information.

[AmazonianX]

Hello. I am still waiting for an admin review decision (today is the 25th day).

But we got an email from Home Office through our local MP. In the email they said that they are still considering my admin review, but also wrote this :
"On 31 July 2019, Dr Deniz submitted an application under the European Union
Settlement Scheme (EUSS). This application currently remains outstanding.
Dr Deniz has informed you that she does not have permission to work whilst
her application is ongoing. Please pass my apologies to Dr Deniz for this
incorrect advice as she does have permission to work whilst her application
is being considered. As she submitted her settlement application prior to
the expiry of her previous application, she is covered by Section 3C."

So this should prove that I should be covered by Section 3C and they should reconsider my ILR application decision. Of course due to the chaos at the HO, I do not know what is gonna happen. But I thought I would update you with this information.

This is good news and development on your matter, we look forward to it being an around all the way good news and success.

[vinny]

On 31 July 2019, Dr Deniz submitted an application under the European Union
Settlement Scheme (EUSS). This application currently remains outstanding.

If the EUSS application was varied, then it’s no longer outstanding.

[ozgendeniz83]

Hi again,

I finally got my admin review decision today, which was successful.

I am pasting the reply below. But I am still not sure whether this means my ILR can be rejected again. If it goes to the original case worker, who thinks I am not covered by Section 3C I might be rejected again. Would the original case worker see the reply from the Home Office to our MP confirming that I am covered by Section 3C? If not how can I make it visible? Lastly how long can it take for them to reach a decision again? I am in this uncertainty for more than 1 year.

Thanks

Your application for administrative review has succeeded.
I have carefully considered your application for administrative review. I have found that the original decision maker may have made an error when considering your application. I have therefore withdrawn the original decision.

What this means for you.
Your application for leave to remain has been sent back to the original case working team to reconsider. They will make a new decision on your application and tell you the outcome. You will be entitled to apply for a fresh administrative review of the new decision.

Your existing leave and conditions of leave are extended under section 3C of the 1971 Immigration Act while your application is under consideration.

Fee for Your Administrative Review Application
As I found errors in your original decision, the fee for your administrative review application will be refunded.

Further information
The section below sets out the reasons why your administrative review succeeded, and the original decision was withdrawn.

NOTICE OF DECISION
Re: Doctor xxxxxx
Date of decision: 12 October 2020
Our ref: 1212-xxxxxxxxxx

REASONS FOR DECISION
Thank you for your application of 14 September 2020 for an administrative review of your granted application for leave.
I have carefully considered the points that you raised in your administrative review. I have withdrawn the original decision because I have found that the original decision maker may have made an error when considering your application.

The error was that some of the evidence supplied prior to the initial decision in support of your application, was not considered. Therefore, I have sent your Tier 2 Indefinite Leave to Remain application for reconsideration to correct the error and make a new decision on your application.