Appeal and oral hearing...please advice

[scraggy]

Dear all

Would like to know what to expect and handle an oral hearing. My husband's and children visa was refused and from our understanding the case worker has made an error.

Application for leave to remain in the UK was done on 19th June 2012 but caseworker considered his application under Appendix FM (applicable from 9th July) rather than Part 8. Although he did not qualify for ILR, she (caseworker) did not even consider to grant him limited leave to remain which we hoped for.

However, according to both Appendix FM and Part 8, he still qualified for limited leave to remain for period not exceeding 30 months.

Could anyone kindly advice what to expect from an oral hearing. It is likely that we will be representing ourselves as funds are now limited. To hire a solicitor is something we are unable to afford. Even to go ahead with this appeal we are required to pay further £80 per person for written and £140 per person for oral hearing.

Furthermore, can anyone please advice me on this very important matter. My two UK born children were also refused leave to remain on the basis that my husband's application being refused. I have ILR. We are planning to apply their BC next week. Do we still need to go ahead with their appeal and pay more money or should we choose not to go ahead with their appeal? My husband is more concerned about them than himself and we do understand that as I have ILR and they are UK born, they are not required a visa(chapter 8, section 4a), but could someone give an expert opinion please.

Thanks! Really appreciate this..

[Amber]

The children born in the UK don't need visas as you're registering them as British.

Was your partner's application flr(m), if so what was the reason for refusal? You said it was being considered under Annex FM rather than Part 8, is this in respect of the financial requirement?

[scraggy]

Many thanks amber

Application was done on FLR O as my ILR was still being processed and my husband and children visas were expiring and we wanted to avoid staying in UK unlawfully.

FLR O application was completed upon advice from UKBA, and we filled it under category 'others'

His wage per annum exceeds 40k, so he covered the financial aspect (no of dependents : 3). He did not qualify for ILR as he did not do the Life in UK test.

He fulfilled all the requirements for limited leave to remain under appendix FM and Part 8.

We were just wondering whether our decision not to appeal for the children would any way jeopardize their application for BC and eventually stay in UK

[Amber]

You made an error, the application should have been FLR(M) asking for a decision to be made after that of your spouse (I assume you qualified for ILR as a long resident please clarify?). You were given the wrong advice and need to ask if your spouse can be considered under flr(m) under the old rules rather than flr(o).

I assume you husband was a PBS dep prior to applying for flr(o)?

[scraggy]

Thanks amber.

We will certainly be arguing this point in the appeal. Would there be any difference in arguing the application to be considered under FLR(M) and making a new application for FLR(M)?

This board is a wealth of info. So thankful!

[vinny]

You cannot make a new application while an appeal is pending.

[peppekalle]

Your chances of winning the appeal are much higher if you get representation I highly recommend it.

[scraggy]

Many thanks

I must have misunderstood vinny in

http://www.immigrationboards.com/viewto ... 132#806132

'She may appeal or apply again under the new rules.'

Since new application is not possible we will argue to be considered under FLR(M) which seems more straightforward. Points we plan to appeal

1. Application was considered under new rules - Appendix FM rather than old immigration rules. Application received and acknowledged on 19th June 2012. Rules change 9th July 2012. This is supported by the Transitional Guidance Section 2.1 . Therefore all arguments of refusal is invalid


2. UKBA has refused the application on the basis that he have not fulfilled the requirements of Appendix FM R-LTRP 1.1 (d) (i) (ii) (iii).

Section R-LTRP: Requirements for limited leave to remain as a partner
R-LTRP.1.1. The requirements to be met for limited leave to remain as a partner are-
(a) the applicant and their partner must be in the UK;
(b) the applicant must have made a valid application for limited or indefinite leave to remain as a partner; and either
(c) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets all of the requirements of Section E-LTRP: Eligibility for leave to remain as a partner;
or
(d) (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and
(ii) the applicant meets the requirements of paragraphs E-LTRP.1.2-1.12. and E-LTRP.2.1.; and
(iii) paragraph EX.1. applies.

In other words, the applicant who fulfilled R-LTRP 1.1(a) (b) and (c) (i)(ii) OR fulfilled R-LTRP 1.1(a) (b) and (d) (i)(ii)(iii) must be considered as meeting the requirements of Appendix FM R-LTRP.
In my husband's case, he did not fulfill the criteria of Section R-LTRP (d)(iii) however he fulfilled criterias for Setion R-LTRP (a)(b) and (c)(i)(ii). Therefore, according to Section R-LTRP he qualified for limited leave to remain.

3. Advice sought prior to application from UKBA as what form to use as wife's ILR application was still in process and FLR(M) required submission of these documents. UKBA advised to use FLR(O) under category 'others'. We would appeal to consider the application under FLR(M) as was wrongly adviced by UKBA

Sorry for any mistakes or anything. Anyone care to comment?

Many thanks![/b]

[vinny]

Sorry. In the previous post, I should have said either appeal or apply.

[scraggy]

sorry amber I missed your question, yes my ILR is based on 10 yr residency and my husband had a PBS dependent visa. We did not apply for ILR 5 yr rule as I did not qualify in terms of earnings as was on maternity leave.

[vinny]

I now believe that if your husband loses the appeal, or withdrew the appeal, then he may apply for FLR(M) under the old rules within 28 days (284(iv)).

But the FLR(M) application must be perfect and satisfy all the requirements of 284 as there would no longer be a right of appeal.

[scraggy]

Many thanks vinny. That sounds good enough for us. At least we will have a backup plan if we loose the appeal. Hopefully we'll be successful though!

[vinny]

3. Advice sought prior to application from UKBA as what form to use as wife's ILR application was still in process and FLR(M) required submission of these documents. UKBA advised to use FLR(O) under category 'others'. We would appeal to consider the application under FLR(M) as was wrongly adviced by UKBA[/b]

That's a good ground for the appeal. The FLR(O) application was based on wrong advice from the UKBA staff.

Perhaps you may ask the judge to consider if your husband satisfies 284 (under the transitional provisions) and direct the UKBA to accept an in-time FLR(M) application accordingly.

[scraggy]

I have just been on the phone with UKBA. According to them if my husband looses the appeal he does not qualify to make a new application under the 28 days rule. He will need to go back home and apply outside the UK. The 28 day rule is only if the application is rejected due to payment failure/error.

Is this true?

[Amber]

You should avoid ringing the Home Office for advice, it's seldom right.

[scraggy]

agree

[vinny]

I have just been on the phone with UKBA. According to them if my husband looses the appeal he does not qualify to make a new application under the 28 days rule. He will need to go back home and apply outside the UK. The 28 day rule is only if the application is rejected due to payment failure/error.

Is this true?

Unfortunately, their Guidance (5.4) does suggests that.

However, this may be inconsistent with the Immigration rules (A280(c), 284(iv) and Section 3C). If there are inconsistencies, then the Immigration rules trumps the Guidance.

However, more unfortunately, their interpretation/guidance will be difficult to appeal against, as there is no/limited right of appeal for an out-of-time application.

[scraggy]

thanks vinny..the links that you provide are certainly very useful