To reconsider a decision OR move to Ireland?

[Jellybean105]

Hi, I'd like some urgent advice or some information to help my husband and I to make a decision. I would really appreciate it if someone could advise..

The situation so far -
previous visa valid till july 12
applied for extension in july
refused with appeal in nov
appealed which was denied in jan with appeal to appeal
appealed again which was pending..
made a new application for spouse visa june 13
received refusal recently stating he is an overstayer

So today we went to see an agent (a friend of a friend) and I wanted to ask for some advice.

I have an option to go Ireland under the surrinder route OR -

According to the agent, he said that my husband has not overstayed. The original visa was valid until July last year and he had lodged a new application in time. After that he appealed and again appealed which was refused. While the appeal was going on, he was legally residing in the UK. We applied for the spouse visa and there was no time in between the appeal and the application to have 'overstayed'. While the application was made after a year from the original application, he clearly has not overstayed. If he had overstayed at any time, they would not have given him a right of appeal for his previous visa.

In the letter he received it says:

"You submitted this application on 5th June 2013, more than 28 days after your leave of remain expired. To qualify for leave under D-LTRP 1.1 you must not be in the UK in breach of immigration laws (disregarding any period of overstaying for a period or 28 days or less). As you have overstayed by more than 28 days you fail to qualify for leave by virture of LTRP 2.2 of the Immigration rules. "

The decision has no right of appeal. The agent suggested to challenge the decision. He said they will either approve or deny the right of appeal and then will set a date for the hearing, which could take months.
Has anyone had any experience with this?

I just want to know if there is any hope going ahead and challenging the decision and going for a hearing (I have already forked out thousands of pounds and a lot of effort on this route and wondering if I should see it through) - or go for the Ireland route?

[Jellybean105]

Can someone please help? Or does anyone know who I could ask for legal advice on whether its worth appealing the decision? We need to submit it asap if we are going ahead with it.

I'd really appreciate your help.

Thanks

[thebionicredneck2003]

Why was the original application refused?

It is very important to let us know why it was refused and why subsequent appeals have been refused, as it may not be worth it to contnue with appeals if there is really chance of success.

[Jellybean105]

Thank you for replying.

Well the original visa was a student visa. It was expiring october but it was curtailed to may because of some problem with the college. He decided to change colleges but after he applied for extension he found out that the college didnt have a license (thats why it got refused). He appealed because he wasnt aware of it and he should have got a chance or time to change colleges.

His appeal went up to tribunal and was pending decision. On one of the replies it said he can apply with a new application if he does not want to appeal.

We met last year in june and we got married in feb this year. Because the student visa was going on forever we thought we'd apply for spouse visa..

He got refused on the basis that he is an overstayer.

[Jellybean105]

Any advice or suggestions?

[vinny]

If his appeal (of the refused appeal) was still pending, then they should not have accepted a fresh application.
If his appeal was not allowed and exhausted, then he was an overstayer from the date when his appeal rights were exhausted.

[Obie]

That advice from the friend was not legally sound at all.

Section 3D rights cannot have the effect of allowing a new application to be made.

If you were served with a one stop notice, and asked to state additional grounds under section 120, then on appeal, a judge will be required to be a primary decision maker and address those point.

A new application cannot be made under the rules, except exception 1 applies.

[Jellybean105]

Thank you both for your replies!

We are going to leave the UK and go to Ireland.
He has to call up the law enforcement officer and discuss his plans (THE CALL IS UNAVAILABLE?!).
Do you think they will let my husband go to Ireland with me even though he has no visa?

Am I right in thinking the UKHO or law enforcement officers can't force you to go anywhere in particular as long as he leaves the UK? Even if they say he has to go back home, can he fight and say they can't make him because his wife (me) is returning to Ireland and he'd like to go as well.
And as under the eu law it is perfectly legal for him to come with me, will they allow it?

We are going to go via liverpool ferry.

Also, will they stamp his passport with anything? Like he can't return within 6 months or something?

Does anyone have any experience with this?

Thank you!

[Jellybean105]

Should I post a new topic for these questions?

Also, we have proof that he has not overstayed (although his letter says that his new application could not be accepted because he had overstayed). According to his pending appeal he was legal all the way until his decision for the spouse visa came. So will he be banned from returning?
If so, can he return to the uk under the surrinder route?

Sorry for all the questions!

[ouflak1]

Also, will they stamp his passport with anything? Like he can't return within 6 months or something?

Ireland and the UK have a common arrangements that allows citizens of each free travel. There is normally no checking of documents for travel within the UK/Ireland common area by land or sea. However there is random spot checking that may occur on some ferries and ships. All air traffic goes through immigration control. On the wikipedia page, it states that among the type of required identity documents that are allowed for Irish Ferries is a passport. Further it states that they would need a valid visa. However it is unclear whether any employee of that company would ever actually check this.

[Jellybean105]

Thank you for clarifying that. At the moment, he can't get through to enforcement law. The number they have provided is unavailable. We have tried to contact other areas but no one is picking up!! He has until Monday to call up, what should we do??

I'm worried about them not letting him go to Ireland with me

[Jellybean105]

So, my husband finally got through to law enforcement yesterday. The lady asked him a few questions like when do you want to leave etc and he said he wants to go Ireland with me. She said if HO have your documents its most likely that they will tell you to go back home.
She said to come to their office on Monday and discuss it in person and to bring along all the documents to prove I am exercising my EU treaty rights etc.

If anyone has any advice on what to say to the officer I'd really appreciate it. I will take all the EU laws printed and other relevant documents to prove he can come to Ireland with me. But how can I approach him/her without sounding to rude or arrogant etc.