four month Discretionary leave to remain

[maha82]

I came to UK as student in February 2008 with a three and half year leave and my wife join me two years later September 2010. We applied for extension in June 2011 but were refused on the grounds of insufficient maintenance funds. I appeal in September 2011 and won the appeal under article 8 private life. After many months of waiting UKBA does not issue our visa and I was asked by the college to stop attending classes until l receive my visa from UKBA. In April 2012 my wife seek asylum because she has a family related problem, which is all the more reason I invited her as student dependent. The time my wife seek asylum we were not together we had a disagreement and she left home and seek asylum with our 9 month old boy, now 2 & half. By the time I knew their whereabouts her appeal decision was refused and basically category as failed asylum seeker and reporting monthly. We reconciled and she moved into my house in September 2012 and UKBA was informed and her reporting was change to Hounslow where she report monthly but still we have not received our student visa from UKBA with many efforts by me and solicitors. April this year we were invited for a family return conference and I raise my student visa issues and I was told they are going to look into it and get back to me. After couple of months they wrote a letter for me to report alone with my wife as I am person liable for deportation according to the letter. After two months of reporting we held another family return conference meeting and I raise my issues again and i was told the same as before, they will review my case. After one week of the meeting I was asked to send my passport as they are reconsidering the judge decisions to issue my visa. Last week we received our visa under discretionary leave to remain with work permitted but is only four months which is due to expire in February 2014. I understand discretionary leave are given for 2 and half year or 3 years but I don't know why we were given only four months. If we are to extend the discretionary leave on what basis should we use as it’s given to me base on the student visa not my wife asylum. The two lawyers we approach have different opinions and we are bit confuse, therefore i will very happy if anyone can share they experience with us.We have very limited time to extend.

[Obie]

On what basis was your appeal allowed?

Do you still have the determination?

If it was under the rules, then UKBA is wrong to issue discretionary leave outside the rules?

Does the live indicate no of hours you could work for?

If it is given outside the rules, then it is not tier 4. They have essentially failed to give effect to the judgement, but this could benefit you significantly.

30 months applies to application made after July 2012. Yours appears to be pending before that date.

If it is DLR outside the rules that may still benefit you, when you will receive a Tier 4 sponsorship with that is another thing.

Try and make sure you file in an application under article 8 before the leave expires, to ensure your rights continue and to enable you to get a right of appeal in the event of a refusal.

[maha82]

On what basis was your appeal allowed?

Do you still have the determination?

If it was under the rules, then UKBA is wrong to issue discretionary leave outside the rules?

Does the live indicate no of hours you could work for?

If it is given outside the rules, then it is not tier 4. They have essentially failed to give effect to the judgement, but this could benefit you significantly.

30 months applies to application made after July 2012. Yours appears to be pending before that date.

If it is DLR outside the rules that may still benefit you, when you will receive a Tier 4 sponsorship with that is another thing.

Try and make sure you file in an application under article 8 before the leave expires, to ensure your rights continue and to enable you to get a right of appeal in the event of a refusal.

THE decision state that: The appeal is dismissed under paragraph 245 x(d) of HC395 (as amended)

The appeal is allowed on human rights grounds Article 8.

This decision was made on 13th September 2011

I still have the determination

It does not state the number of hours to work....it Just state work permitted and under remark there is nothing where they normally put no recourse to public fund

[Obie]

Well UKBA may well be correct then, but the 4 months may not be in accordance with policy. What article 8 grounds did you pursue, and on what basis did the judge say you should be granted leave.

Was it based on your children and your life in the UK, or was it based on the stage of your course and the difficulties you will encounter, given the advance level of your course.

[maha82]

[quote="Obie"]Well UKBA may well be correct then, but the 4 months may not be in accordance with policy. What article 8 grounds did you pursue, and on what basis did the judge say you should be granted leave.

Was it based on your children and your life in the UK, or was it based on the stage of your course and the difficulties you will encounter, given the advance level of your I


I suppose to complete the course in February 2012 and the appeal decision was made in September 2011. I believe the judge decision was base on the course am doing at the time which I should complete in February after 6 months of the decision.

[Amber]

Although DLR was usually granted for period of 3 years, there was discretion to grant shorter or indeed longer periods. Usually a grant of 6 months at a time would be made where refusal or withdrawal of asylum or Humanitarian Protection was based on grounds of criminality.

You should note that:

Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision. If the circumstances remain the same and the criminality thresholds do not apply, a further period of 3 years DL should normally be granted. Decision makers must consider whether there are any circumstances that may warrant departure from the standard period of leave.

If the Judge believed you had established a family/private life in the UK, then providing the circumstances are of a similar nature the leave should be extended.

Given the way the UKBA/UKVI have handled your case there are certainly grounds for a complaint to establish why the Judge’s decision was not implemented and why you have only been given 4 months DLR.

You should consider an FLR(O) extension of DLR before you current leave expires.

Under the old DLR access to public funds and work was permitted.

[maha82]

Although DLR was usually granted for period of 3 years, there was discretion to grant shorter or indeed longer periods. Usually a grant of 6 months at a time would be made where refusal or withdrawal of asylum or Humanitarian Protection was based on grounds of criminality.

You should note that:

Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision. If the circumstances remain the same and the criminality thresholds do not apply, a further period of 3 years DL should normally be granted. Decision makers must consider whether there are any circumstances that may warrant departure from the standard period of leave.

That's exactly what my solicitor advice me to do, to go for judicial review and I was also u cannot switch to another visa type ones on discretionary leave to remain. Is that true am kind of confuse









That's what my solicitor advice me to do to go for judicial review and I was also told




That's exactly what one of the solicitors told me to go for judicial review. I was also told I cannot switch to another visa type ones am on discretionary leave

If the Judge believed you had established a family/private life in the UK, then providing the circumstances are of a similar nature the leave should be extended.

Given the way the UKBA/UKVI have handled your case there are certainly grounds for a complaint to establish why the Judge’s decision was not implemented and why you have only been given 4 months DLR.

You should consider an FLR(O) extension of DLR before you current leave expires.

Under the old DLR access to public funds and work was permitted.

[maha82]

Although DLR was usually granted for period of 3 years, there was discretion to grant shorter or indeed longer periods. Usually a grant of 6 months at a time would be made where refusal or withdrawal of asylum or Humanitarian Protection was based on grounds of criminality.

You should note that:

Decision makers must consider whether the circumstances prevailing at the time of the original grant of leave continue at the date of the decision. If the circumstances remain the same and the criminality thresholds do not apply, a further period of 3 years DL should normally be granted. Decision makers must consider whether there are any circumstances that may warrant departure from the standard period of

If the Judge believed you had established a family/private life in the UK, then providing the circumstances are of a similar nature the leave should be extended.

Given the way the UKBA/UKVI have handled your case there are certainly grounds for a complaint to establish why the Judge’s decision was not implemented and why you have only been given 4 months DLR.

You should consider an FLR(O) extension of DLR before you current leave expires.

Under the old DLR access to public funds and work was permitted.

One of my solicitors said that I go for judicial review an I was told I cannot switch to another visa type ones on discretionary leave to remain.Is this true

[Amber]

If you meet the requirement for alternative leave you may be able to switch. However, you should try and work on your DLR as under the old rules the route to settlement is 6 years.

[Obie]

Well it may be the case that the leave granted, although delayed, was the most appropriate form in the circumstance. The judge does not seem to say that your removal will be a breach of your private and family life in the UK, but rather seem to be saying that in light of the stage of your course, it will be a disproportionate interference with article 8, to refuse you the right to complete it. These are different case analysis.

However the possibility remains for you to renew it.

[maha82]

[quote="Obie"]Well it may be the case that the leave granted, although delayed, was the most appropriate form in the circumstance. The judge does not seem to say that your removal will be a breach of your private and family life in the UK, but rather seem to be saying that in light of the stage of your course, it will be a disproportionate interference with article 8, to refuse you the right to complete it. These are different case analysis.

However the possibility remains for you to renew it.[/quote]


Thank you so much for the help. I don't know if this add-up from the date of the decision to my visa expiry dat is exactly 2years 5 month some days. Could be they have taken notes of the decision date to now.

[Greenie]

If you meet the requirement for alternative leave you may be able to switch. However, you should try and work on your DLR as under the old rules the route to settlement is 6 years.

As DLR is granted outside the rules it is generally not possible to switch into other categories in particular points based system categories.

If the from what you have written your appeal was allowed so you can complete your course but was not allowed under the rules because you didn't meet the rules however the practice in such cases is to grant leave for the same duration as would've been granted under the rules, I.e. until the end of the course plus 2/4 months depending on length of the course. Has the course was already finished they just gave you the plus 4 months.

Is agree you can try to extend the leave but it will be difficult to win on the basis that it will be a breach of your right to a family life alone.

[maha82]

[quote="Greenie"][quote="D4109125"]If you meet the requirement for alternative leave you may be able to switch. However, you should try and work on your DLR as under the old rules the route to settlement is 6 years.[/quote]

As DLR is granted outside the rules it is generally not possible to switch into other categories in particular points based system categories.

If the from what you have written your appeal was allowed so you can complete your course but was not allowed under the rules because you didn't meet the rules however the practice in such cases is to grant leave for the same duration as would've been granted under the rules, I.e. until the end of the course plus 2/4 months depending on length of the course. Has the course was already finished they just gave you the plus 4 months.

Is agree you can try to extend the leave but it will be difficult to win on the basis that it will be a breach of your right to a family life alone.[/quote]

Thanks greenie

What happens is I did complete the course bec I failed. When I want to continue the following semester I was stopped by college bec the visa was long due. I want to complete the same and do my master, I can use that as an argument when extending the leave.

[Greenie]

If you have evidence that the university will allow you back on the course and that you otherwise meet the tier 4 rules (apart from the fact you have discretionary leave and can't switch into tier 4 ) then this might succeed.