Applying for PSW visa after completing 1 Year Overstay Ban

[taha81]

Hi All,

After my Student Visa Extension is Refused in August 2009, I appealed and attend the Tribunal Hearing in London in October 2009. The Judgment from Magistrate i received in November 2009 was ' I Dismiss your appeal BUT my Recommendation is that you can stay in UK till January 2010'.

After looking at this judgment, i assumed that i can stay in UK till 31st of January 2010. I didn't contact UKBA, submitted my Dissertation on 29th of January 2010 and next day i arrived back to my home country.

Now, i have realized my mistake that I actually Overstayed, as UKBA didn't accept the 'Magistrate Recommendation' and actually Dismiss my appeal in November 2009 and as i left UK in January 2010, i overstayed for 2 months.

My University announced my Final result in June 2010 and i received my Degree and Letter for PSW Visa in July 2010, and the maintenance funds for 90 Days will be ready in January 2011, Can i apply for PSW visa in February 2011, as i would have completed my 1 year Overstay ban on 30th January 2011 ???

and my another question is 'Will i get 10 points for my Immigration status in UK as a student ??? as i always spend my time in UK as a Student BUT the last student visa extension had been refused which i stated earlier.

Answers to my questions would be Highly Appreciated.....Thanks

[geriatrix]

The ban is yet to be imposed. Don't assume that when a ban has not been imposed on you, living outside the UK for a year voluntarily is akin to obeying a (non-existent) ban.

You may apply for Tier 1 (PSW) but the ECO will take into consideration the fact that you have overstayed in the UK and make a decision accordingly. Also, do not hide the facts (of being refused extension and that of overstaying in the UK) in the EC application.


regards

[taha81]

Thanks for your kind reply

Yeah i wouldn't hide anything when applying. I would illustrate everything.

But you know what, sorry to say i didn't understand this sentence: 'The ban is yet to be imposed. Don't assume that when a ban has not been imposed on you, living outside the UK for a year voluntarily is akin to obeying a (non-existent) ban'.

As i come back to home country from UK on 30th of January 2010, and the Ban of 1 year due to overstay would be lifted from me on 30th of January 2011, it seems logical that i can apply on 1st of February 2011 ???

and wanna know 'Will i get 10 points for my Immigration status in UK as a student ??? as i always spend my time in UK as a Student BUT the last student visa extension had been refused which i stated earlier.

[geriatrix]

Your opening post does not mention that a ban has been imposed on you, just that you applied for extension that was refused and that you appealed the decision which was subsequently not allowed.

As i come back to home country from UK on 30th of January 2010, and the Ban of 1 year due to overstay would be lifted from me on 30th of January 2011, it seems logical that i can apply on 1st of February 2011 ???

So, did UKBA impose a 1 year ban on you? If not, then staying out of UK for a year voluntarily cannot be viewed as one as a result because of (an imaginary) ban.

For you to obey a ban, a ban must first be imposed on you, right? Has one been imposed?


regards

[taha81]

Thanks alot for another quick reply......

I didn't receive anything from UKBA which can confirm that there is any Ban imposed on me.

I went to IAS (Immigration Advisory Services) office in my city. They got a team of lawyers and their Head office is in Central London. I went there with all the documents. They were confused after looking my passport and documents.

They asked UKBA to provide 'Subject Access' from 'Data Protection Unit', in reply we got a bundle of documents from UKBA, BUT still there is 'Nothing' which can prove that I have been Banned for 1 year due to overstay.

UKBA did answer our Question through email reply afterwords, i-e 'The decision as to whether your client overstayed will be based on the date of his exit from the UK, in conjunction with the dates of his current or last entry clearance validity'.

Now, for the safe side, i made my mind to wait exactly 1 year from the date i arrive back to my home country to complete Overstay Ban, IF ANY.

Hope I described my matter accordingly. Can't wait to see yours recommendation now.....

Regards,

[geriatrix]

Remain the same!

You may apply for Tier 1 (PSW) but the ECO will take into consideration the fact that you have overstayed in the UK and make a decision accordingly. Also, do not hide the facts (of being refused extension and that of overstaying in the UK) in the EC application.

[taha81]

Thanks alot for your quick replies....

Just a last Question to ask: 'Will i get 10 points for my Immigration status in UK as a student' ??? as i always spend my time in UK as a Student BUT the last student visa extension had been refused which i stated earlier AND Tier-1 PBS for PSW visa do need those points to be awarded.....

Regards,

[geriatrix]

Should, unless they find out that you submitted your dissertation while in the UK without a valid leave to enter / remain.


regards

[avjones]

Under paragraph 320 of the Immigration Rules:

(7B) subject to paragraph 320(7C), where the applicant has previously breached the UK's immigration laws by:

(a) Overstaying;

(b) breaching a condition attached to his leave;

(c) being an Illegal Entrant;

(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not);

unless the applicant:

(i) Overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;

(ii) used Deception in an application for entry clearance more than 10 years ago;

(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;

(iv) left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago, or

(v) was removed or deported from the UK more than 10 years ago.

Where more than one breach of the UK's immigration laws has occurred, only the breach which leads to the longest period of absence from the UK will be relevant under this paragraph.

So once you left the UK voluntarily, not at the expense of the SSHD, more than 12 months ago, you won't fall for a compulsary ban.

However, that doesn't mean you will get leave.

[taha81]

Millions of Thanks to both of you.....Yours time spending on my case and providing logical points with what the Law says, are Highly Appreciated.....

I reached to the conclusion that 'I would apply for PSW Visa in the 1st week of February, as i would left UK 12 months ago on my own expense and doesn't fall for a compulsory ban'.

I would attach a Cover letter which explains everything with all the relevant documents, plus my MSc. degree from Brunel University and letter, plus the maintenance funds documents and then Just hope for the best.

Regards,

[aWilliam]

Please anyone can help me, or anyone can share similar experience.

My situation is this: I applied for Indefinite Leave in December last year and my student visa expired 31/12/09. The ILR was refused and I was given right to appeal so I appealed and it does not seem to be good.

My questions are:

1. Can apply for PSW while my appeal is pending?
2. if so do I have to inform the court about this?

[geriatrix]

Please anyone can help me, or anyone can share similar experience.

My situation is this: I applied for Indefinite Leave in December last year and my student visa expired 31/12/09. The ILR was refused and I was given right to appeal so I appealed and it does not seem to be good.

My questions are:

1. Can apply for PSW while my appeal is pending?
2. if so do I have to inform the court about this?

As per this post of yours, you state that your appeals have been dismissed. So where is it pending now?

If you have exhausted your appeal options then you are an overstayer since the day your last appeal was dismissed. And with no valid to enter/remain in the UK, you are not entitled to make a new application. If you make one, it will be at UKBA's discretion to accept it for assessment.


regards

[aWilliam]

@ Sushdmehta. Thanks for your prompt reply.

I believe I have exhausted my appeals and all of them was dismissed. My lawyer believes that I should apply for PSW now, so I'm in doubt.

On 20th June 2010 I received my MA degree and now I have the certificate, the letter and bank statements. because of this I thought that I was qualified to apply for PSW or at least maybe from my country.

Can you tell me please if I should go back to my country and apply for PSW?

[geriatrix]

@ Sushdmehta. Thanks for your prompt reply.

I believe I have exhausted my appeals and all of them was dismissed. My lawyer believes that I should apply for PSW now, so I'm in doubt.

On 20th June 2010 I received my MA degree and now I have the certificate, the letter and bank statements. because of this I thought that I was qualified to apply for PSW or at least maybe from my country.

Can you tell me please if I should go back to my country and apply for PSW?

Applying from home country may be a better option, given your circumstances. If you've been an overstayer for more than 28 days then this may affect any entry clearance application(s).


regards

[aWilliam]

thanks again,

When do you start counting 28 days? the last letter I received was 23/11/10 refusing to appeal to the Upper Tribunal. My lawyer is confusing me a bit saying that i still can appeal against this decision, of course this is going to cost me another £250.

I just want to clear any doubts before doing any decision that would cause more problems.

[geriatrix]

thanks again,

When do you start counting 28 days? the last letter I received was 23/11/10 refusing to appeal to the Upper Tribunal. My lawyer is confusing me a bit saying that i still can appeal against this decision, of course this is going to cost me another £250.

I just want to clear any doubts before doing any decision that would cause more problems.

If an appeal has been considered by the Upper Tribunal, in some circumstances it may be possible to challenge the decision by applying to the Court of Appeal. Your solicitor can advise you on further course of action, if any is available to you.

You start counting the 28 days from the day you receive the decision in writing.



regards

[aWilliam]

@sushdmehta, thank you very much.

[avjones]

There are two stages in a leave application to the Upper Tribunal.

Firstly, you ask the First Tier tribunal for leave to appeal. If that doesn't work, you appeal directly to the Upper Tribunal, by written grounds.

In my experience, you get leave much more often from the Upper Tribuanl directly, ie, the second stage.

So I'm not sure if your refusal is the first or second stage.

[aWilliam]

There are two stages in a leave application to the Upper Tribunal.

Firstly, you ask the First Tier tribunal for leave to appeal. If that doesn't work, you appeal directly to the Upper Tribunal, by written grounds.

In my experience, you get leave much more often from the Upper Tribuanl directly, ie, the second stage.

So I'm not sure if your refusal is the first or second stage.

The first stage was about "Permission to appeal to the Upper Tribunal" and was rejected. The second was "appeal to the Upper Tribunal" and also was rejected. My lawyer wants to challenge decision by appealing to the Court of Appeal. I think that is not working as well.

I'd like to travel on 10/12/10 back home and apply for PSW. Before buying the ticked: do i have to inform the HOme Office that i'm abandoning the appeal? or just leave the country? Can you advice me please,

thanks

[avjones]

At the moment, it's been rejected, that's it? then the appeal is over.

A good idea to tell the HO, though. Then you can show when you left.

[aWilliam]

Thanks all for your help,

I'm going back to my country to apply for PSW. I was reading all around about documents that I need to provide. I have all of them except the Student Visa as my visa expired last year 31/12/2009 but I applied for ILR which was not going positive so I left the country.

Do I have to send my passport and all appeal forms? has anyone had same experience?

Thank you