Administrative review or appeal

[ozgendeniz83]

HI,

I have a complicated immigration history. I am a highly talented scientist with a British husband and daughter. I worked in the UK for 6 years under Tier 2. However, due to the wrong advice given from UKVI and EU Settlement Scheme, instead of applying for Indefinite Leave to Remain in July 2019, I applied for EU Settlement Scheme. Unfortunately, 3 months after my application my Tier 2 expired (October 2019) and my lawyer suggested to apply for ILR on the basis of the fact that my work rights were extended (ECS check came positive even 4 weeks after my Tier 2 expired implying that on time EU Settlement application extended my Tier 2 rights (Article 3C)). Long story short, I just got refused from my ILR application and submitted an administrative review. The reason for the refusal was EU Settlement Scheme is not covered under Article 3C and this information was not clearly stated anywhere.

I have also been endorsed by the Royal Society for Global Talent Visa Application. The question is whether my ILR refusal would affect my GTV application procedure. I will have to go back to Turkey to apply for GTV Stage 2, which normally takes 3 weeks. I am now worried my immigration history would negatively affect GTV decision. This would be devastating as my family is here and another rejection means separation of our young family (my daughter is just 2 years old).

I would highly appreciate any input.

[zimba]

Did you apply for ILR within 14 days of your Tier 2 visa expiry and did you have 5 years of stay under Tier 2 by the end of your visa ?? If yes, then your ILR application should have succeeded. If you applied later or were not eligible, then that is a different story. You have been overstaying since the last October which may potentially cause a re-entry ban of one year.

[vinny]

Applications for leave to remain under Appendix EU are under the UK Immigration Rules. Why would, in-country, in-time, valid applications under the Immigration Rules not be covered under Section 3C?

Explicitly, 3C (2)

(ca) an appeal could be brought under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”), while the appellant is in the United Kingdom, against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission),
(cb) an appeal under the 2020 Regulations against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of those Regulations), or]
(d) an administrative review of the decision on the application for variation—
(i) could be sought, or
(ii) is pending.

There may be some confusion with timings. However, I believe that Section 3C was engageable, even prior to the right of appeal above. The legislations may have lagged behind good sense and intentions, possibly due to the Brexit rush, producing uncertainty.

[vinny]

However, due to the wrong advice given from UKVI and EU Settlement Scheme, instead of applying for Indefinite Leave to Remain in July 2019, I applied for EU Settlement Scheme.

Perhaps complain to them or Legal Ombudsman or Member of Parliament or Independent Chief Inspector or apply media pressure that applicants cannot reasonably rely on Home Office representatives’ advice?

[ozgendeniz83]

Many thanks for your replies.

To give you the dates:

I had Tier 2 between 15.06.2014-14.10.2019.

EU SETTLEMENT Application (as a primary carer of a British Citize) : 08.2019

ECS Check form HO : 11.2019 positive

In January we still did not hear from EU Settlement Application. My lawyer suggested to apply for ILR hoping that on time EU Settlement application will cover Article 3C (as my ECS came back positive).

ILR Application : 02.2020

Refusal of ILR 09.09.2020

Administrative Review Application: 14.09.2020.

Endorsement from the Royal Society L 14.09.2020.

[CR001]

Why did you not applied for a spouse visa if your spouse is British rather than the more restrictive gtv?

[ozgendeniz83]

The reason I did not apply for a spouse visa is 1. It takes longer than GTV Stage 2
2. It is more expensive than GTV
3. I need to renew it every 2.5 years.

GTV seems the be my cheapest and quickest option, the timeline is 3 weeks if you apply outside the UK.
I am hoping that I can go back to Turkey apply to GTV and come back within weeks.

But the question is would previous refusals affect this decisions?

We are also reaching to the media, MP for this matter as it is ridiculous that they are deporting me with a British family and highly skilled job and I did not do anything unlawfully in my immigration status.

[vinny]

I think they were wrong to decide that Section 3C was not engaged.

[ozgendeniz83]

I also had another ECS check in May 2020 which also came back positive.

So HO is saying that my work right were extended when I applied for EU Settlement Scheme and later for ILR. But yet their reasoning of refusal is that there is a gap between my Tier 2 and ILR application (4 month gap) even though I had on time application going.

To add the detail : I gave my biometrics on 29.06.2020 and 01.07.2020 they contacted us asking for more explanation about this gap, even though we sent our replies twice to the email address where we got the requests from in my ILR refusal letter it stated that they never got a reply from us.

Thats why we applied for administrative review to send our 3-page long explanation and proof of sending their requested explanation to them.

[ozgendeniz83]

Thanks vinny for your reply. This is what we want to think as well. Before my ILR application we consulted 5 different lawyers and they could not come with a consensus answer whether EU Settlement Scheme is covered under 3C.

If they were wrong, how can we push them to reverse the decision? I also have the support of a trade union and a journalist from Guardian is interested in our story.

[vinny]

So HO is saying that my work right were extended when I applied for EU Settlement Scheme and later for ILR. But yet their reasoning of refusal is that there is a gap between my Tier 2 and ILR application (4 month gap) even though I had on time application going.

Their reasoning is contradictory. If Section 3C was not engaged, then your work rights would not have been extended.

What application for ILR did you make? Was it under Tier 2?

[ozgendeniz83]

I totally agree with you Vinny. If 3C was not applied for my case, ECSs should not have come back positive (twice). This is what we used as an argument in the cover letter and the detailed explanation they requested from us (which they claim they never got).

I applied for ILR under Tier 2.

[vinny]

In summary, before an immigration decision, you had varied an in-time valid Leave to Remain application under Appendix EU to an Indefinite Leave to Remain application under Part 6A.

It would be interesting to see their arguments on why they thought Section 3C was not engaged.

[ozgendeniz83]

In their decision letter it states ;
Section 3c does not extend leave where an application was made for a residence card under the EEA regulations immigration Regulations 2006. Application for a residence card is not an application to extend or vary leave, it seeks confirmation that rights under EEA regulations are being exercised therefore t the applicant does not require leave to enter or remain.

This was their exact statement. Even though in my ECS check the explanation was ongoing leave to remain Application.

[vinny]

Ah. They were referring to applications under the EEA Regulations. It’s true that Section 3C is not engaged for these applications.

However, if you applied under the EU Settlement Scheme, then it was an application under Appendix EU.

Applications under Appendix EU are applications under the Immigration Rules. As confirmed by the title:

Immigration Rules Appendix EU

They are not applications under EEA regulations.

[ozgendeniz83]

So this was totally the error of the case worker. Is that right?

I already submitted my administrative review based on the fact that they have never received my responses to their request.

Can I make another point for this error? Would contacting MP help?

Many thanks Vinny.

You can imagine how hard it is to imagine that my 2 year old daughter may not have her parents in the same country.

[vinny]

I think so. Include these points to them.

[ozgendeniz83]

Many thanks Vinny. This sounds very promising. As they give me 10 days to submit any documents for my administrative review I probably can still send them these.

I would probably need a legal representative to do all of this.

[vinny]

Good luck! Please let us know what happens.

[ozgendeniz83]

Thank you. I am now looking for a lawyer to make a legal statement to send to the HO.

I also found this now where it clearly states :

"The present regulations amend two pieces of primary legislation. The first is section 3C of the Immigration Act 1971, which is amended so that it applies to appeals against decisions to vary pre-settled status under these regulations. The reason is that, where a person applies under the EUSS for a variation of their leave, their leave is extended whilst their appeal is pending."

Weblink removed by moderator

[vinny]

Just out of curiosity, is you husband an EEA/Swiss National who had exercised treaty rights in the UK before becoming British?
Or is he also Irish?
Or did you live with him in an EEA/Swiss country before coming to the UK?

[ozgendeniz83]

No, he is British by birth, so is my daughter.

One question, my employee asked for ECS in May which came positive and is valid for 6 months. While my application is under administrative review, would this extend my work rights as my ECS is valid until November?

[ozgendeniz83]

I also did not live with him in an EEA/Swiss country. We met here.

[vinny]

No, he is British by birth, so is my daughter.

One question, my employee asked for ECS in May which came positive and is valid for 6 months. While my application is under administrative review, would this extend my work rights as my ECS is valid until November?

I contend is that Section 3C applies and is still active.

[ozgendeniz83]

Thanks vinny for your answers. We have consulted a lawyer who suggested that I can apply for an appeal even though they have not specified that in my decision letter.
The question I have is can I submit an appeal and administrative review at the same time?

Thanks