PSW Appeal - Need advise urgently

[Pragash]

I made an application for PSW visa on 21.03.2011. My application has been refused & HO has given following reason "evidence is insufficient and the letter from the institution dated 11 March 2011 states that the award of your degree will be approved in the week begining 18 th April 2011. Therefore when you submitted your application you had not been awarded your degree"

My case
I did my last exam towards the MBA in Dec 2010 and however one of my final examination was under apeal this was awarded on 8th March 2011 allowing me to graduate. As a result my file was presented to and approved for graduation by the University Graduation Committee on 18th April 2011.

As soon as my final examination appeal was awarded i requested a letter from the College where i followed the MBA programme. They issued a letter on 11.03.11 as per UKBA requirments. However they made a foot note as "We can confirm the above named applicant has met the requirments for MBA award which will be approved in the week begining 18th April 2011. This has led to refuse my application.

Now i need to know the following:
1. Does anyone have come across similar situation?
2. Can the judge say that i did not have the degree at the time lodging visa the appication?
3. Can I say that i had the award on 08.03.2011 since i had sucessfully completed all the examinations?
4. My graduation is on 21.06.2011 and i am planning to lodge the appeal on 15.06.2011. Will i be able to convince judge that i have a degree at the time of oral hearing?

5. University has sent me a letter dated 20th April 2011 explaining that my final examination was awarded on 8th March 2011 allowing me to graduate and graduation will be approved by the University Graduation Committee on 20.04.2011. Can this letter be good evidence to prove that i had the award on 08.03.2011.

Please help me with ideas to win my appeal. Thanks

[ddb]

You were rightly refused because as at the time you made your application, you were not qualified.

If you lodge an appeal, it is most likely to be dismissed (I believe it will be as you definitely weren't qualified when you applied).

Instead of an appeal, it's best you apply again (that's if you still have leave to remain).

[Pragash]

My student visa valid up 30.04.2011
I received the refusal letter on 06.06.11.
My graduation is on 21.06.2011
Therefore it is difficult for me to leave UK & come back for graduation. Therefore i have decided to make an appeal. I read the guidance which states that date of award is the date on which qualification was obtained.

I was informed by University on 8th March 2011 by e-mail that my appeal has been successful and I have met requirments for the degree.
Can this be good evidence to prove i had successfully completed the MBA programme?

[Greenie]

My student visa valid up 30.04.2011
I received the refusal letter on 06.06.11.
My graduation is on 21.06.2011
Therefore it is difficult for me to leave UK & come back for graduation. Therefore i have decided to make an appeal. I read the guidance which states that date of award is the date on which qualification was obtained.

I was informed by University on 8th March 2011 by e-mail that my appeal has been successful and I have met requirments for the degree.
Can this be good evidence to prove i had successfully completed the MBA programme?

the date of the award is the date the exam board sits and makes a final decision. from what you said previously, and from the evidence you submitted with your application, it appears that you were awarded your degree on 20.04.2011 for that reason there is a high chance your appeal will be refused.

[ddb]

My student visa valid up 30.04.2011
I received the refusal letter on 06.06.11.

Ouch...

I suggest you seek legal counsel from a competent solicitor.

In my opinion, the appeal is only going to aid in buying you time to make it to your graduation, aside that, there's no point appealing. Just saying.

Still seek legal counsel - an out-of-time application may be possible (may be not).

[Pragash]

Why did the college issue the letter first place on 11.03.2011 confirming with all the details? it's not my mistake really. College is a tier 4 liecensed instituiton?
Can the Judge take these factors into consideration?

[ddb]

Why did the college issue the letter first place on 11.03.2011 confirming with all the details? it's not my mistake really

The college issued the letter because you requested for it, and they gave the correct details as well i.e. the letter clearly stated that you will be approved in the week beginning 18th April 2011., not that you have been approved.

I believe it was in your best interest at the time to notice the statement. In this instance, the college isn't/wasn't at fault.

[Pragash]

What does really mean by out of time application? Why it may not be possible? Please could you explain.

[arsenal49]

you can make out of time application, if you must/

but there is no guarantee whatsoever that the caseworker will look at your application since you are technically an overstayer from 6th june.

also if 28 days pass and you are still in uk, then you will attract a one-year automatic ban!

if caseworker do decide to look at your app, then obviously you will get the visa since you will have a letter saying u have been awarded degree etc.

[ddb]

What does really mean by out of time application? Why it may not be possible? Please could you explain.

Based on experience, I can say that it is possible to make an out-of-time application (application made after leave to remain has expired), as long as it's not more than 28 days after leave to remain has expired - note though, that it's best not to leave it to more than 10 days.

I mentioned that it may not be possible, because it's up to the case worker to use discretion (even though they are obligated to consider out-of-time applications).

In your case, the UKBA responded after your leave had expired, so the clock starts from the date of refusal or if you've lodged an appeal, the clock would start from when you withdraw your appeal.

It's best to use a competent solicitor when making an out-of-time application as they're pretty good with preparing proper cover letters to attach.

Best to seek a competent solicitor for advice or assistance.

[Pragash]

Thank you very much indeed for all your advise. At least now i see a way forward.

Yes i am hoping to consult lawyer on Monday. But before that i need to know various options available. Suppose if my appeal has been refused and i leave the country immediately. Will I be able to re apply from my home country ?

Suppose my out of time application refused on the basis that i have overstayedin this country will i still be able to make an appeal?

[ddb]

Suppose if my appeal has been refused and i leave the country immediately. Will I be able to re apply from my home country ?

Yes

Suppose my out of time application refused on the basis that i have overstayedin this country will i still be able to make an appeal?

No, you won't be given another right to appeal, and I don't think your application would be refused on the basis of overstaying as you would still be inside the 28 days bracket. Just make sure you've got all the relevant documents.

Note that if you go ahead to make an out-of-time application, you'll have to withdraw your appeal first.

[Pragash]

I still did not lodge the appeal. I am hoping to do it on 15.06.11.
if not out of time application will be sent on 15.06.11

Why would HO not consider out of time applications if i send the application within 10 working days?

[ddb]

Why would HO not consider out of time applications if i send the application within 10 working days?

They will consider it because they are obligated to.

I suggested 10 days because the sooner the better and if considering ILR or Long residence, 10 days gap would be assessed with discretion.

[Pragash]

How long do they take to process out of time application? Do they take same time as normal processing?

[ddb]

As far as I know, it's the same.

Obviously quicker if all requirements are met and all relevant documents have been submitted.

Also have to take into consideration when biometrics have been enrolled. Personally know of one that took 11 working days from date of biometric enrolment.

[Pragash]

Do i need to show the fresh maintenance for the out of time application?
If i waite for the Bank statments i will run short of time.

[ddb]

Do i need to show the fresh maintenance for the out of time application?

Yes you do.

If i waite for the Bank statments i will run short of time.

If you can get them printed out, stamped, and signed then you should be all right (don't get caught out by missing bank logos).

If you do internet banking, then you can print out your statements at home (making sure to meet requirements), and take them to the bank for stamping and signing (on every page).

[Pragash]

If i send a fresh application within 10 days of my refusal letter would that amount to out of time application?

This because i applied for the visa on 21st March 2011 and i received the decision on 6th June 2011. Intending to make a fresh application on 15.06.11

I am just seriously thinking which option to undertake between an appeal and an out of time application.
What is most safest option with my present circumstances?

Appeal: if the judge dismisses my appeal then i can go back and re apply from Home country.

Out of time applicaion: if HO refuses my application due to overstaying or any other reasons then i will loose the right of appeal and also i will not be able to apply within next 12 months I will not be able to apply for PSW visa forever.

Under these circumtances i feel that appeal is the best option to choose in order to stay within the law. Is that correct? Could U please advise


Suppose if i admit that i have actually overlooked the date of award and assumed that final result date as date of award with the letter from the college will the judge accept my proposal on any other grounds.

[ddb]

If you want to wait till 15 June 2011, I think you should lodge an appeal to buy you time - that way you'll be in the country legally (note that you've got 5 working days from refusal date to lodge an appeal). An appeal is only going to buy you time right now. A solicitor can help with drawing up the grounds of appeal.

Once you've got all your documentation together (make sure everything meets the requirements to date), withdraw your appeal and immediately send your out of time application.

Again, I suggest you seek legal assistance. A competent solicitor can prepare an iron clad cover letter, plus could even fax your appeal withdrawal request so you could post the application the same day.

[Pragash]

10 business days or 5 business days after refusal. IAFT-1 form states that 10 business days if you are not in detention. ????

One more point i want to get it clarified:

UKBA guidance Paragraph 79 " The date of award is taken as the date on which the applicant was first notified in writing, by the awarding istitution that qualificiation has been awarded."

UKBA defines date of award as "The date on which you were first notified in writing, by the awarding institution, that the qualification has been awarded is the date on which the qualification was obtained (known as the date of award)". In my case 8th of March 2011

And also states that:
"As long as the date of award (or the completion of the NHS Foundation Programme) is no more than 12 months before the date of application, we will award the points".

My MBA is purely exam based. Why can'nt i argue that completion of the MBA programme is the date of award although you have mentioned earlier that date on which board of examiners sit for the award. (In my case this has happened after 40 days of my final result)

I am just thinking in different point of view. May be wrong but i need to try this out.

Your views on this please..... As you said earlier i will consult a competent solicitor on Monday.

[ddb]

10 business days or 5 business days after refusal. IAFT-1 form states that 10 business days if you are not in detention. ????

Pardon me for mixing up the number of working days, it's just that I go by the principle of 'the earlier the better' .

One more point i want to get it clarified:

UKBA guidance Paragraph 79 " The date of award is taken as the date on which the applicant was first notified in writing, by the awarding istitution that qualificiation has been awarded."

UKBA defines date of award as "The date on which you were first notified in writing, by the awarding institution, that the qualification has been awarded is the date on which the qualification was obtained (known as the date of award)". In my case 8th of March 2011

If you refer back to your original post, your appeal was awarded on 8 Mar 2011 not your qualification.

The letter from your institution stated that your qualification will be granted the week beginning 18 Apr 2011; and according to UKBA, it has to be your qualification nothing else.

[Pragash]

UKBA guidance para 80 states: " We do not accept the date of award as the date of graduation"

UKBA Annex B
The original certififcates of award must always be provided unless the applicant is awaiting graduation having successfully completed their degree.

Becasue of my appeal, my file was presented to and approved for graduation by the University Graduation Committeed on 20/04/2011.

Can i argue that the i had successfully completed the degree on 8th March and approval for graduation obtained on 20.04.2011.

Yes it could be a weak argument but i have no other choices.

[ddb]

UKBA guidance para 80 states: " We do not accept the date of award as the date of graduation

UKBA Annex B
The original certififcates of award must always be provided unless the applicant is awaiting graduation having successfully completed their degree.

This should also be read along side the excerpt below;

If the certificate has yet to be issued, the
applicant will be unable to provide the original
certificate of award. In these circumstances,
the applicant must provide:
ii) an original letter from the institution at
which the applicant studied towards his/her
eligible qualification. The letter must be an
original letter (not a copy), on the official
letter-headed paper of the United Kingdom
institution at which the applicant studied. It
must have been issued by an authorised
official and must confirm the:
• applicant’s name;
• title of the qualification;
• Date of the award (as defined in
paragraph 79 of these guidance notes);
• the body awarding the qualification;
• explain the reason why the applicant is
unable to provide their original certificate
of award; and
• confirm that the certificate will be issued.

Can i argue that the i had successfully completed the degree on 8th March and approval for graduation obtained on 20.04.2011.

Yes it could be a weak argument but i have no other choices.

Please note that UKBA announced that as of 23 May 2011 new evidence would not be accepted when making an appeal.

In your case, if you had not initially submitted the subsequent letter from your institution explaining that approval for graduation would be/was obtained on 20 Apr 2011, then unfortunately you have no chance of winning your appeal.

[ddb]

Then again, a solicitor might find a loop hole somewhere (highly unlikely though).