ILR outside the rules from tier 2

[bashet]

Dear Respected Members,

I got entry clearance via tier-2 general on October 2013. I applied for an extension on June 2016. But extension application was refused due to TOEIC issue. I went to judicial review (JR) and I won the case in June 2017. Home Office were instructed to quash the refusal decision and make a new one. In December 2017 home office refused me again on the same ground (TOEIC) which was already solved from last JR. However, after general procedure (AR + PAP) I am now to JR again. I know this time (according to a precedence rules of Mr. Khan and Others from court of appeal), I will get in-country appeal right to be considered for human rights.

Now, my question is can I apply for ILR based on tier-2 route (October 2013 – October 2018)? Although I didn’t have a job and income since June 2016 onward.
When I was refused on June 2016, I was awarded all the required points and had enough (40k) salary. Now I don’t have a job, but I don’t have any control on the situation. It’s home office to blame.

Can I apply for ILR now in this October 2018 in any logic?

Thanks in advance for reading this.

[CR001]

No, you cannot apply for ILR based on Tier 2 as you do not currently hold a Tier 2 General visa.

Additionally, for Tier 2 to ILR, there are mandatroy specific requirements you must meet, ie minimum of £35,500 pa salary, you MUST be currently employed and have an employer letter confirming this and that you will be required for the foreseeable future. You also have to have payslips and bank statements to submit and you also need absence letters from all employers.

Important to note that JR is a process separate to the Immigration Rules and JR does not give you Section 3C protection. So at the moment, you have had no legal status since your last visa expired.

[bashet]

Thank you for your kind reply.

Whatever you wrote, that everybody knows as they were described in gov.uk website! If it was a normal tier-2 question I wouldn’t ask here in the forum!

The fact is I am not liable for my current situation (not meeting the actual requirements). I used to have job and salary. It was my running job from where I had to step down when HO refused my application where I wasn't guilty (proven from JR).

I understand, 3c protection won’t cover by the JR. But my case will be sent down to first-tier tribunal allowing in-country appeal right according to the precedence established by Khan and Ohers case at court of appeal. If JR can’t prove me guilty (it’s proven I am not) why my 3c protection will be destroyed? When I will be sent down to first-tier tribunal will my 3c protection continue?

So, is there anything outside of normal law would allow me to apply for ILR?

[secret.simon]

So, is there anything outside of normal law would allow me to apply for ILR?

Simply put, no. ILR is not granted outside the Rules. To the best of my knowledge, it is also not open for the judge to instruct the Home Office to give you ILR.

I understand, 3c protection won’t cover by the JR. But my case will be sent down to first-tier tribunal allowing in-country appeal right according to the precedence established by Khan and Ohers case at court of appeal. If JR can’t prove me guilty (it’s proven I am not) why my 3c protection will be destroyed? When I will be sent down to first-tier tribunal will my 3c protection continue?

Section 3c leave only extends pre-existing leave. If there was no leave at the start of the period, such as if an application was out-of-time or if there was a JR, there is no leave to extend and therefore no Section 3c protection. Therefore, if your case is remanded to a fact-finding First Tribunal judge, as per Khan and Others, you will still not have Section 3c leave.

In your earlier JR application, was there a judgment in your favour OR did the Home Office offer to reconsider your case and you withdrew the case? They have different legal outcomes. As I understand it, if the Home Office offer to reconsider your case and you withdraw the case, they can refuse you on the same grounds.

Also, Cart Judicial Reviews in immigration cases are intentionally limited in their nature by a Supreme Court judgment. By continuously appealing judgments, immigrants could indefinitely stretch their leave under Section 3c. But that would exhaust court resources from other uses and fields. Therefore, the Supreme Court, in Cart and MR, limited judicial review in immigration cases.

Let's now look at the judgment in Khan and Others. That judgment approves an agreement between the Home Office and the lawyers on the other side.

Further, at para. 8 of the note, it was stated:

"Nonetheless, for the avoidance of doubt, the SSHD confirms that:
...
For those whose leave had expired, and who had made an in time application for further leave to remain which was refused on ETS grounds, the effect of an FTT determination that there was no deception would be that the refusal would be withdrawn. The applicant in question would still have an outstanding application for leave to remain and the Respondent will provide them with a reasonable opportunity to make any further changes to their application which would be considered on the basis of them not having employed any deception in the obtaining of their TOEIC certificate, and they would in no way be disadvantaged in any future application they chose to make.
(iii) In all cases, the Respondent confirms that in making any future decision he will not hold any previous gap in leave caused by any erroneous decision in relation to ETS against the relevant applicant, and will have to take into account all the circumstances of each case.
However, the Respondent does not accept that it would be appropriate for the Court now to bind him as to the approach that he would take towards still further applications in the future, for example by stating that each applicant has already accrued a certain period of lawful leave. The potential factual permutations of the cases that may need to be considered are many and various. In some cases, for example, it will be apparent that, whilst on the facts as presented at the appeal an appellant's human rights claim is successful, he would not have been able to obtain leave at previous dates. Again, this issue will have to be dealt with on a case by case basis." (Bold in original)

I have quoted the sections that I think apply to your case. If your case is decided under Khan and Others, the Home Office will treat you as still having a valid application pending and therefore having Section 3c leave extending your Tier 2 visa. However, as I interpret it, you will still need to meet the Tier 2 visa requirements when applying for ILR.

[bashet]

Many many thanks for your well explainaions. @secret.simon

So, if I successed from 1st-tier tribunal (having proved not guilty for TOEIC) means my application made on June 2016 is still valid. According to this I still have the CoS issued with enough salaray (40k) and now in October 2018 onward I am already 5 years in teir-2.

Where does this leave me?

Just wanted to add some of my history:
1. I came to UK in septembet 2009 as tier-4 student for the 1st time.
2. I went back home (for 3 weeks) and re-enter in October 2013 as tier-2 general.
3. I used to have very good employment history with very good salary. (now I don't have because of HO)!
4. June 2016, I still had 5 months visa left when my extention application was refused.
5. I applied early because of change of employment.

[secret.simon]

As I understand it, provided the Court dealing with the JR treats your case as a "Khan and Others" case and remits it to a fact-finding FTT judge AND the judge finds no deception, then you will likely be asked by the Home Office to reapply for a Tier 2 extension within a specified timeframe and such an application would be treated as being in-time.

Provided this process takes a year and you meet the requirements for ILR(LR), you may want to look at applying for ILR(LR) when you become eligible (which is only after the fact-finding FTT judge finds no deception).