ILR Appeal 2018

[acyc]

Hi all

I am having some problems with making decision to appeal to upper tribunal or making a fresh application.

So when I applied for the ILR, my day of absence were over the limit of 540 days, in fact it was 640.
So I got refused by the HomeOffice (HO), and I applied for an appeal.
The first tier judge dismissed the appeal as the Judge thinks the number of dates were over and I should not be granted the ILR. However, my lawyer said the Judge should consider my absence from the date of the hearing not the application date nor the HO decision date.

Do you think I should appeal to that or just make another application as as of today, I am way below the 540 days limit.

Thanks!!

[zimba]

That is an odd thing to say by an immigration lawyer
You applied for an appeal on your immigration decision, the court simply considers if UKVI correctly followed the rules or not. If you were above the limit then the court will dismiss your appeal as UKVI correctly made the decisions as per rules at that time.
As you are protected under Section 3C, you can withdraw the appeal now and apply again under SET(LR) assuming you are now below 540 days

[acyc]

That is an odd thing to say by an immigration lawyer
You applied for an appeal on your immigration decision, the court simply considers if UKVI correctly followed the rules or not. If you were above the limit then the court will dismiss your appeal as UKVI correctly made the decisions as per rules at that time.
As you are protected under Section 3C, you can withdraw the appeal now and apply again under SET(LR) assuming you are now below 540 days

Hi Zimba
Thanks for the advice, I have read as I make a new application, my section 3C will come to an end and if my new application is refused, I have no rights to appeal.
Also the Home Office case worker considering my new application will have access to the Judge's decision from the tribunal, would be not be in my favour? Although I am not way below 540 days.
Thanks

[zimba]

Yes. In case of a new application your section 3C ends. As far as I see, your case will be eventually dismissed anyways as I do not see that you have a case there, so you exhaust your appeal rights and lose section 3C anyway. If your new SET(LR) is refused you might get right to appeal but you remain an overstayer.
The decision of the tribunal judge should not matter in the new application in this case. A new application will not obviously succeed if you are not below 540 days as per rules

[acyc]

Yes. In case of a new application your section 3C ends. As far as I see, your case will be eventually dismissed anyways as I do not see that you have a case there, so you exhaust your appeal rights and lose section 3C anyway. If your new SET(LR) is refused you might get right to appeal but you remain an overstayer.
The decision of the tribunal judge should not matter in the new application in this case. A new application will not obviously succeed if you are not below 540 days as per rules

Thank you for the explanation.
Sorry I mean I am NOW way below 540 days (instead of NOT below....) sorry..
So It seems reasonable to make a fresh application.
Does anyone have this same situation before?

[zimba]

Yes, assuming you are otherwise eligible under SET(LR)

[acyc]

Yes, assuming you are otherwise eligible under SET(LR)

I have also heard, as my section 3C comes to an end, Home Office case working sometime count the days of absence from the date of decision not the day of my application (the Fresh application), is that true?

[zimba]

No, the date of application is only relevant