ILR refused

[Tvaswani]

Hi All,

My ILR application (10 year route) was rejected on grounds that I couldn't maintain continuous residence as I was more that 184 days outside (4 days over to be precise). Although the case officer is OK to grant me limited leave to remain for 30 months as family member visa and has shared the link for paying IHS withn 2 weeks.

I feel I have a good decent chance in my case and have some strong points. However it looks like judicial review is the only option and there is no way I can appeal. I wanted to know would it be worth it has anyone done it before?

Any thoughts welcome.

Thanks

[zimba]

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body like the Home Office. This is part of the administrative law in the UK. Failure to satisfy the immigration rules and then being refused for it is not unlawful, so what the judicial review is intended to do in your case ?

[Tvaswani]

Hi zimba, thanks for getting back.

Whilst it might not be unlawful its on unreasonalble grounds we think we have got a chance. Some of the points we feel have not been considered at all, One is the pandemic as it was during Mar 2021 and Sep 2021. Besides the case officer in one point has said the visa was stamped on x date and asked me to travel, without knowing that the passport was not in my hands as it has to come via VFS. The time when I received that made me cross 184 days limit. I travelled the right next day after my passport was received. I have got the proofs in form of VFS mail.

Just sad that we are not given a chance for appeal and only option left is JR.

Thanks

[zimba]

Historically SET(LR) is considered a human rights application, so the right to appeal should be granted. This guide has not been updated since late 2023 though, reflecting the changes made in April 2024: https://assets.publishing.service.gov.u ... appeal.pdf

[vinny]

One is the pandemic as it was during Mar 2021 and Sep 2021.

Collect evidence.

[Tvaswani]

Thanks Zimba, intresting as it was one of the authorised Home Office immgration consultants who came back to me saying he cant do anything as it needs to be an Judicial review. Besides I dont see anything for appleal on the application update.

[Tvaswani]

To be precise they have offered me the FM 10-year parent route.

[zimba]

Thanks Zimba, intresting as it was one of the authorised Home Office immgration consultants who came back to me saying he cant do anything as it needs to be an Judicial review. Besides I dont see anything for appleal on the application update.

What does that even mean?
You should be able to appeal the decision as the guide I shared above says you have the right to appeal.
See: https://www.gov.uk/immigration-asylum-t ... hin-the-uk

Also, has your ILR been refused or is it still pending? You are saying they offered you a visa under 10 year route, suggesting they are yet to refuse your application

[Tvaswani]

These are the exact words (in italics) zimba, the link you have shared I just started reading, however it reads as (in yellow)

Appeal from within the UK
You can only appeal to the tribunal if you have the legal right to appeal - you’ll usually be told if you do in your decision letter.

We have considered your application and you do not qualify for indefinite leave to remain. The reasons for this are set out in Annex A to this letter.

However, we are satisfied that you would fall to be granted limited leave to remain for 30 months under Appendix FM 10-year parent route, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A.

In these circumstances, in accordance with the consent you gave on the application form, we are now treating your application as an application for limited leave to remain. However, under paragraph 6(1)(c)(ii) of the Immigration (Health Charge) Order 2015, we will be obliged to treat your application for limited leave to remain as invalid if you do not comply with a requirement to pay an immigration health surcharge by the date specified. In respect of your application, in order for it to be valid and for you to be granted limited leave to remain, you must pay an immigration health surcharge of £2,587.50

[Nightshade]

Historically SET(LR) is considered a human rights application, so the right to appeal should be granted. This guide has not been updated since late 2023 though, reflecting the changes made in April 2024: https://assets.publishing.service.gov.u ... appeal.pdf

They've been doing this thing for the past few years where if they reject your application and then vary the said application to an LTR application and then grant you an LTR then they don't provide you with appeal rights. Your only option is to pay the IHS fee and accept it or do a PAP/JR, which would lead to your application becoming invalid because you didn't pay for IHS and you losing your section 3c whilst the case is pending. From their perspective, they will say that they addressed the human rights issues by offering the LTR.

I don't know how lawful that is, but that's what they did for me as well in 2021 as you're aware, and it basically led me to having to spend extra money for IHS, legal fee, and another SET (LR) application following an incorrect decision by them, which they've now admitted was their mistake.

[zimba]

These are the exact words (in italics) zimba, the link you have shared I just started reading, however it reads as (in yellow)

Appeal from within the UK
You can only appeal to the tribunal if you have the legal right to appeal - you’ll usually be told if you do in your decision letter.

We have considered your application and you do not qualify for indefinite leave to remain. The reasons for this are set out in Annex A to this letter.

However, we are satisfied that you would fall to be granted limited leave to remain for 30 months under Appendix FM 10-year parent route, were you to make a valid application for such leave. The detailed reasons for this are set out in Annex A.

In these circumstances, in accordance with the consent you gave on the application form, we are now treating your application as an application for limited leave to remain. However, under paragraph 6(1)(c)(ii) of the Immigration (Health Charge) Order 2015, we will be obliged to treat your application for limited leave to remain as invalid if you do not comply with a requirement to pay an immigration health surcharge by the date specified. In respect of your application, in order for it to be valid and for you to be granted limited leave to remain, you must pay an immigration health surcharge of £2,587.50

Your application has not even been decided yet and it is still pending, hence the offer. Any right to appeal after a refusal, may or may not be communicated. You can apply for an appeal if the law allows it. UKVI telling you or not is not really relevant. This does not change or negate anything I said above. I suggest seeking proper legal advice from people who know what they are talking about

[zimba]

Historically SET(LR) is considered a human rights application, so the right to appeal should be granted. This guide has not been updated since late 2023 though, reflecting the changes made in April 2024: https://assets.publishing.service.gov.u ... appeal.pdf

They've been doing this thing for the past few years where if they reject your application and then vary the said application to an LTR application and then grant you an LTR then they don't provide you with appeal rights. Your only option is to pay the IHS fee and accept it or do a PAP/JR, which would lead to your application becoming invalid because you didn't pay for IHS and you losing your section 3c whilst the case is pending. From their perspective, they will say that they addressed the human rights issues by offering the LTR.

I don't know how lawful that is, but that's what they did for me as well in 2021 as you're aware, and it basically led me to having to spend extra money for IHS, legal fee, and another SET (LR) application following an incorrect decision by them, which they've now admitted was their mistake.

You are not forced to take the offer of FLR. They can refuse and then you can appeal. This is allowed as per the immigration act. UKVI does not grant the right to appeal, it is the law that grants you such a right. This is why it is important to seek proper advice as soon as facing these issues

[Tvaswani]

Thanks Nightshade for the reply. Its an open license to refuse for them as if they make a mistake there is no way to hold them accountable apart from taking them to courts.

Can I ask if you did a judicial review? do you think its worth it time and offcouse solicitor fees? I am aware its case to case. I dont know what a PAP is will have a look as the immigration consultant only mentioned a Judicial Review.

Can I also check how did they accept it was their mistake?

[Nightshade]

Thanks Nightshade for the reply. Its an open license to refuse for them as if they make a mistake there is no way to hold them accountable apart from taking them to courts.

Can I ask if you did a judicial review? do you think its worth it time and offcouse solicitor fees? I am aware its case to case.

I didn't. I straight up accepted it, this was in 2021.
I did another SET (LR) this year and pointed out the mistake in 2021 application, so they granted me ILR on the basis of Leave Outside The Rules because the condition under which I qualified in 2021 didn't exist anymore due to rule change in 2023.

The whole reason they applied discretion is because my application in 2021 was valid and it qualified, they just made a mistake.

You are not forced to take the offer of FLR. They can refuse and then you can appeal. This is allowed as per the immigration act. UKVI does not grant the right to appeal, it is the law that grants you such a right. This is why it is important to seek proper advice as soon as facing these issues

I had consulted with an immigration lawyer back then and they had told me the only option was a JR. That may have been incorrect advice, but at the same time the clock is always ticking, and finding the right advice becomes hard when it's so especially considering how it can take days to even get an appointment with a solicitor since you only have 14 days from date of rejection (which would be 10 days from the date they made the offer), plus I was also concerned with whether I could work during the period before I submitted my appeal but after the decision was made as I didn't want my company to be affected due to it in any way.

The main problem being the wording they used i.e.

"If you do not pay the immigration health surcharge by the specified date, your application for limited leave to remain will be treated as invalid. This means that you will not be granted limited leave to remain and your application fee will not be refunded. You will not be able to appeal this decision and you may be liable for removal from the United Kingdom."

not rejected since they had already varied the SET (LR) to FLR (FP) and it was the FLR (FP) that was becoming invalid. And I don't think any of the lawyers I spoke to were certain about the implications of that.

[Nightshade]

Tvaswani to answer your question on how they accepted it was their mistake, I did an SAR which I only received last week, and in there I saw notes they made for my SET (LR) application from 2024 where I saw their notes. I posted a screenshot of that note in my thread:

viewtopic.php?t=345093&start=25#p2173945

[Tvaswani]

Thanks Nightshade, its been quite a journey for you, for many probably.

Thanks zimba, agree I would set something up with a solicitor however time is ticking and I have a feeling I am going to end up doing the same as NIghtshade accept the offer due to the uncertainity.

On other note please forgive my ignorance what is FM 10 yaer parent route visa and would it allow my wife to work? if you can point me to the gov.uk page I would be greateful and might help me in decision making.

thanks

[zimba]

Thanks Nightshade, its been quite a journey for you, for many probably.

Thanks zimba, agree I would set something up with a solicitor however time is ticking and I have a feeling I am going to end up doing the same as NIghtshade accept the offer due to the uncertainity.

On other note please forgive my ignorance what is FM 10 yaer parent route visa and would it allow my wife to work? if you can point me to the gov.uk page I would be greateful and might help me in decision making.

thanks

What is your current route ?

[Tvaswani]

I got an ILR this year and my son got his British passport this year.

[zimba]

I got an ILR this year and my son got his British passport this year.

You are referred to your ILR application above. I am confused. Who is applying?

[Tvaswani]

Sorry it was for my spouse.

[zimba]

Sorry it was for my spouse.

Again, what is her visa route ? How long has she been under such route ?

[Tvaswani]

2014 to 2018 Tier ICT
18 to 24 student visa

Applied for long residency, which was not granted due to 4 days overstay taking the total to 188 days

Thanks

[zimba]

You can move her to the 5-year route rather than just accepting the 10-year route. Are you in employment ?

[Tvaswani]

sorry zimba for the delay, quite confused atm and trying all my options. Yes I am in full time work. I was also thinking on lines of if I have a British passport next year and my son already has one he would be 7 next year. not sure if we got a case.

thanks

[zimba]

sorry zimba for the delay, quite confused atm and trying all my options. Yes I am in full time work. I was also thinking on lines of if I have a British passport next year and my son already has one he would be 7 next year. not sure if we got a case.

thanks

Apply using FLR(M) to vary the ILR application to the 5-year family route, instead of taking what is being offered under the 10-year route. There is no 7-year route to settlement for a parent