Post
by stranger786 » Fri Sep 01, 2017 1:01 pm
Your application was placed on hold following a pause in Appendix FM decision-making, which began on 22 February 2017. This applied to applications made or considered under Appendix FM where the application falling for refusal involved a child. This temporary hold was to enable the Home Office to consider the implications of, and to make necessary changes in the Immigration Rules and guidance to reflect, the judgment of the Supreme Court in MM (Lebanon) & others v SSHD [2017] UKSC10.
Changes to the Immigration Rules to give effect to the Supreme Court judgment came into force on 10 August 2017. Decision-making in respect of all Appendix FM applications has now resumed, taking into account these changes.
Your application has been unsuccessful. You should now leave the United Kingdom.
What this means for you.
Your application has been unsuccessful.
You must leave the United Kingdom now, or you will be liable to be detained and removed.
If you do not leave voluntarily and removal action is required you may be subject to a re-entry ban of up to 10 years. You may also be prosecuted for the offence of overstaying, the penalty for which is a fine and/or up to 6 months imprisonment.
While in the United Kingdom you may not work or access benefits.
Further information
If you have any reason to stay in the United Kingdom that you have not already told us about, you must tell us now using the application forms on our website: gov.uk/ukvi. You should seek legal advice as soon as possible if you are intending to stay in the United Kingdom
The enclosed documents set out the reasons why your application has been unsuccessful and informs you of the legal consequences.
Thank you for your application of 21 November 2016.
Your application has not been considered by the Secretary of State personally, but by an official acting on her behalf.
Immigration History
You entered the United Kingdom on 05 May 2007 with entry clearance as a Student valid from 10 April 2007 until 30 June 2010.
You were issued a Certificate of Approval on 15 March 2010 to marry a Lithuanian national, .
On 28 June 2010 you applied for leave to remain as a Tier 4 (General) Student which was granted on 02 August 2010 until 17 August 2011.
On 02 July 2011 you applied for further leave to remain as a Tier 4 (General) Student which was granted on 19 August 2011 until 29 June 2012.
On 09 March 2012 you applied for leave to remain as a Tier 1 (Post Study) Migrant which was granted on 5 September 2012 until 5 September 2014.
On 28 August 2014 you applied for leave to remain as the spouse of a person present and settled in the UK. This was refused, with a right of appeal, on 03 March 2015. You duly appealed this decision on 19 March 2015. The First-Tier Tribunal dismissed your appeal on 27 April 2016. Permission to appeal to the Upper Tribunal was refused by the First-Tier Tribunal on 03 October 2016 and by the Upper Tribunal directly on 02 November 2016. Your appeal rights were deemed exhausted the same day.
On 21 November 2016 you lodged your current submissions for indefinite leave to remain on the basis of long residency grounds.
Basis of application
1. You have sought indefinite leave to remain in the UK on the basis of long residency under paragraph 276B of the Immigration Rules, and on the basis of your family and private life under Appendix FM and paragraph 276ADE(1) of the Rules and Article 8 of the European Convention on Human Rights (ECHR)
2. You state that you are married to a British Citizen,, and you’re your “…relationship has not formally broken down and no divorce proceedings have been initiated yet…”
3. It is also claimed that you have “…spent the last decade in the UK and have contributed to the UK through [your] academic achievements…works…relationships…”
4. In support of your application you have submitted a representatives cover letter, marriage certificate, degree certificate and Life in the UK Test letter.
Repeat application
5. You have previously had a human rights claim refused with a right of appeal. On 28 August 2014 you applied for leave to remain as the spouse of a person present and settled in the UK. This was refused on 03 March 2015. Your appeal against this refusal was dismissed on 27 April 2016. Therefore your current claim has been considered to determine whether it is either a repeat claim or a fresh claim. We have done this consideration under paragraph 353 of the Immigration Rules (HC 395 as amended).
6. Paragraph 353 of the Immigration Rules states:
“When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
This paragraph does not apply to claims made overseas.”
Elements of claim not previously considered
7. Your family and private life were addressed in your previous refusal decision of 03 March 2015 and in the decision of the First-Tier Tribunal dated 27 April 2016. You have provided no new evidence, and made no new arguments in relation to your family and private life which would warrant reconsidering this decision.
8. It is noted from your previous application that your wife has a daughter, , born on 20 January 2012. However, you have provided no evidence to show that you have a parental relationship with Miss , or that you are taking any part in her upbringing. It is also noted that no mention of Missis made in your current application.
9. Accordingly it is considered that Miss family life is with her mother, your wife, and not with you. As such it is anticipated that Miss would remain in the UK with her mother. This is deemed to be in her best interests under section 55 of the Borders, Citizenship & Immigration Act 2009.
Long Residency
10. Paragraph 276B of the Immigration Rules states the requirements for indefinite leave to remain on the grounds of Long Residency. Namely that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded, as will any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period.
11. Paragraph 276A of the Immigration Rules states that for the purposes of paragraph 276B to 276D and 276ADE(1);
(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain; or
(ii) temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted; or
(iii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
12. With reference to your immigration history above you held valid leave from 5 May 2007 until 2 November 2016. This is a period of less than 10 years.
13. Although you made this subsequent application on 21 November 2016, it must be pointed out that any time spent in the UK following the submission of an out of time application and while awaiting consideration of that application is not considered lawful even if that application is subsequently granted.
14. Therefore you fail to meet the requirements of paragraph 276B(i)(a) of the Immigration Rules.
15. For the reasons outlined above, your submissions are considered to fall within the remit of Paragraph 276D with reference to Paragraph 276B(i)(a) of HC395 (as amended).
16. Careful consideration has been given to whether your submissions amount to a fresh claim. Although your submissions have been subjected to anxious scrutiny, it is not accepted that they would have a realistic prospect of success before an Immigration judge in light of the reasons set out above.
17. As outlined above, a consideration has been undertaken of your submissions that have not previously been considered. However, this new claim taken together with the previously- considered material, does not create a realistic prospect of success before an Immigration Judge. Please note that this consideration has also been undertaken against the provisions of paragraph GEN.3.2. of Appendix FM, but for the reasons outlined above, there are no grounds on which to grant you leave to remain on this basis.
18. As your submissions do not create a realistic prospect of success before an Immigration Judge, they do not amount to a fresh claim.
Consideration of Paragraph 353B
19. You have claimed that even if your removal from the United Kingdom would not be a breach of the Refugee Convention or ECHR, there are exceptional circumstances for allowing you to remain in the UK. Consideration has therefore been given to the following relevant factors
(i) Character, conduct and associations including any previous criminal record and the nature of any offence of which the applicant has been convicted.
20. Regard has been had to your character, conduct, and criminal history. It is noted that you have no known criminal record. However, the lack of criminal record does not justify allowing you to remain in the United Kingdom.
(ii) Compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable.
21. Regard has been had to your compliance. It is noted that you have previously failed to attend a marriage interview when required and were refused leave to remain for the same. It is considered that your personal history, character, conduct and employment record are not sufficiently compelling to justify allowing you to remain in the United Kingdom.
(iii) Length of time in the United Kingdom accrued for reasons beyond the migrant’s control after their human rights or asylum claim has been submitted or refused.
22. Regard has been had to your length of time in the United Kingdom. It is noted that you have only ever been granted leave to enter and remain as a Student. It is considered that your length of residence is not sufficiently compelling to justify allowing you to remain in the United Kingdom
23. Careful consideration has been given to all these circumstances individually and together, but for the reasons given above it is not accepted that there are exceptional circumstances in your case considered sufficiently compelling to justify allowing you to remain in the United Kingdom.
