Two appeals and no luck

[Njamani]

Just wanted to get some advice on how best to deal with my situation.

I have been in this country as a student since Feb 2000. I have gone through some personal circumstances which have meant that I have taken longer than should have to finish my studies. The Home Office was aware of these circumstances. Last year in August I applied to have my visa extended but didn't hear anything from the home office until June this year. They rejected my application on the basis that I had been in this country for over 9 years and had not made satisfactory progress on my course. They wrote that this made them realise that it was not my intention to leave this country after my studies are finished. My passport was sent back to me together with the forms to enable me to appeal the decision which I did. I went for a hearing on the 10 of August and within 3 days heard back from the AIT with their decision saying that I did not give enough evidence to support my circumstances and therefore felt that the HO was within right to deny my application. I was then given 5 days in which to appeal. My Lawyer wrote a very good arguement based on the fact that she felt there was an error of law in the way the Judge made the decision and also based on other factors. The appeal was sent straight away and I didn't hear from them until Friday 11 sept, the AIT made a decision to not make an order on my application. The senior Judge said that he was satisfied with the first decision I was given and felt that there was no error of law and has therefore rejected my appeal. I am going to get advice from my lawyer on what to do next but I am a bit worried that I'm not dealing with the best Immigration lawyers. Initially when I went to them I was assigned a lawyer who never bothered to communicate with me properly and was eventually told that she had left just a few days before witness bundle for appeal was due to be sent in, then I was assigned another lawyer a week later who didn't even bother to show up for the appointment she had given me. The last lawyer I was given is the one that ended up doing the witness bundle for me but even then the bundle wasn't handed in until the day of the hearing on the 10th of August. All this time I had been on legal aid as a student. When my first appeal was rejected my lawyer told me that I had to pay £250 in order to appeal again. When I asked about my legal aid she said that it was insurance just in case my second appeal was rejected they wouldn't be able to claim their money back for the work done so therefore I had to pay them. She assured me that this money would eventually be refunded to me once the case was finished??????? She then said if this appeal didn't work we could always go for a Judicial review which she said can be claimed as part of legal aid?????? Obviously as a student I can't afford to go to a Judicial review because of the money involved. So my questions are based on what I have written above:-

1. Do I enrol on my course in order to finish the remaining modules while at same time try and sort out my visa problems? Legally am I even still a student right now?

2. Its obvious that one of the reasons the HO has rejected my application is because I'm almost close to being here for 10 years therefore would have been entitled to applying for ILR. There is only 5 months left to my 10 years and taking into consideration you are supposed to apply 28 days before I would say just over 4 months, so is there a way I can get round this and start the process now and forget about trying to get the student visa?

3. Regarding my having paid £250 to my lawyer even though I am entitled to legal aid, how can I make sure that they are not getting double money from me and from the Legal aid society as well? And will I be entitled to get my money back?

4. If I request for a Judicial Review (embarrassed to say I don't even know what this is) which apparently can take a long time and I happen to clock my 10 years before the hearing will I still qualify for ILR then? Will I be under the same conditions as when I first arrived here, as a student while I am awaiting the review?

5. With the way the Law firm has handled my case and not giving me correct advice, (my lawyer suggested that if the worst comes to the worst I should disappear for another 5 years and then apply under the 14yr rule seriously???) should I even still be using them. I have a feeling I might have to start digging into my pocket soon so am I better off using someone else?

6. At this point am I still entitled to legal aid?

Sorry I know this post is a bit long but I wanted to give as many details as I could so as to get the best advice on what to do. I am not ready to go back to my country, I lost my Mum in 2006 and I don't have anyone back home except my brother. I would like to establish myself here if I can but I don't want to wait forever doing that as I have a problem with depression and that is the last thing I need, I'm not strong enough. Any good advice and links would be appreciated.

[Mr Rusty]

You've been refused LTR as a student, your appeal has been dismissed and you've been refused Leave to appeal to the Tribunal on a point of law. So you no longer have a right to be in the UK, and you should make plans to leave the country.

I'm not familiar with the details surrounding legal aid, but it looks as if you were asked to pay £250 to make the application to the Tribunal, and as that has not been successful there was no entitlement to legal aid and your lawyers are entitled to keep that for the work done.

Judicial Review is an application to the High Court, in effect to get a judge to agree that there is some aspect of your case where correct procedures have not been followed, or that UKBA or the Immigration Appeal court have improperly used their powers. I think it's quite likely that, whatever your right to legal aid, any solicitor will ask for several thousand pounds up front to make an initial application, in the same way that you had to find £250 to go to the Tribunal. If a Judicial Review hearing is denied, you will lose that money.

Your solicitor's "advice" that you should disappear for a further 4 years and hope to apply under the 14-year rule may just be an illustration that you haven't really a hope of remaining here legally rather than serious advice, and I bet you haven't got that in writing.

It's easy to blame your legal advisor when you don't get the outcome you want, but no-one can make a silk purse out of a sow's ear, and a failed student after 9 years looks pretty much like the latter.

[PaperPusher]

Njamani

You do not say what course you are studying or how many times you have failed modules and how many you have passed.

There is case law about this:

http://www.bailii.org/ew/cases/EWCA/Civ/2008/747.rtf

In short, although you can fail some modules, you cannot expect to stay when you are not making much progress in your studies. For example if you have already spent 5 years on a course of studies that should take three years, and you have asked to get another extension because you have yet again failed to progress, in this case it is quite likely that you would be refused.

Leave to remain is also for studies, not to stay in the UK too sick to study or raise a baby instead of studying for example.

Like Mr Rusty, I think staying in the UK as an overstayer is not a good idea and I am surprised a lawyer suggested it because overstaying is breaking the law.

It is up to you if you want to appeal again. I do not know about legal aid.