Invalid application due to payment problems?

[MissyD]

any advice on what I should apply for and how to appeal as they said I have no right of appeal...

I basically wish to have 18mths leave.

[vinny]

Submit the appeal online or by registered post.

1. Cite the case law that relates to your initial in-time application. If the UKBA cannot prove that the said application was invalid, then it was valid.
2. Therefore, Section 3C was triggered.
3. Therefore, the subsequent application should have been treated as a variation (JH (Zimbabwe) [2009] EWCA Civ 78).
4. Therefore, you have the right of appeal (82(2)(d)) against a refusal.

Request cofirmation of your right of appeal from a Judge (due to the special circumstances above).

See also refusal decision.

[Obie]

The question is whether the fee issue was her fault. And i accept, that where the right of appeal is concerned, the burden of proof will be on UKBA, as they are seeking to curtail a right of appeal.

I find the technicality in Vinny's point very interesting indeed, but if it could be proven that the fee was indeed your fault, then you argument falls altogether.

I am not sure the OP's application could be said to have been varied, when she returned the application, after dealing with the fee issue.

But again, it is a technical area, Vinny could well be correct. However it all depends on whether it can be proven by UKBA that your application was not valid when it was sent.

[MissyD]

Many thanks for the responses and advice.

With reference to the fee...

they are claiming that I sent the incorrect amount.

I did not send the incorrect amount. I didn't send any money.

I filled out the form authorising a payment via debit card.

And filled out the correct amount and in the correct places.


I also have an overdraft facility at the bank so if it was a matter of insufficient funds - (which they did not say it was..and they did not mark off the box for insufficient funds or incorrect card details) then my overdraft would have covered the rest.

I had the funds in my account at the time of submitting.

Someone at UKBA did not even bother to process the payment correctly or attempt to process the payment at all and just sat there and decided to return the form and checked of just any box.

I kept a scanned copy of my application page for the fee payment which shows all info was correct.


How does the appeal affect my having to report to the local enforcement office and can I get my passport back?

[Obie]

If there is a Section 3c or Section 3D Right, then requiring you to sign may well be unlawful, because the condition of the previous leave continue to apply. People with leave to remain cannot be put on reporting restriction. You are not an immigration offender therefore it could be argued that any such restriction may well be unlawful.

[MissyD]

If there is a Section 3c or Section 3D Right, then requiring you to sign may well be unlawful, because the condition of the previous leave continue to apply. People with leave to remain cannot be put on reporting restriction. You are not an immigration offender therefore it could be argued that any such restriction may well be unlawful.

thank you for your response.

Is this requirement lifted once the appeal is sent in?

[Obie]

If it is indeed correct that your application was not invalid, and the Tribunal concludes you have a right of appeal, then section 3D may well be in play, and the reporting restriction will then be unlawful as you will not be someone who does not have a leave to remain, or liable to immigration detention.

[MissyD]

If it is indeed correct that your application was not invalid, and the Tribunal concludes you have a right of appeal, then section 3D may well be in play, and the reporting restriction will then be unlawful as you will not be someone who does not have a leave to remain, or liable to immigration detention.

ah ha..ok.. so it has to go to the hearing first.

so in the mean time do I report to the enforcement office?

if so what do I tell them?

and if the appeal is successful, what is my next available step?

thanks again much for your help.

[Obie]

Put in your application as VInny suggested, and let the first Tier Tribunal decide.

Directions will be issued by a designated judge for the Secretary of State to provide evidence that your application was indeed invalid. You could go one step ahead of them, by demonstrating that you provided the right information, and the fee section was filled in properly.

An appeal hearing will be set, and if it is found that your appeal is indeed valid, or the SOS could not provide convincing proof that your application was indeed invalid, you will be entitled to have your appeal allowed, on the basis that the decision of the SOS is not in accordance with the law and remains outstanding with the Secretary of State awaiting a lawful decision.

Whiles this matter is ongoing, they may try to detain you, therefore you are advised to report, or challenge the reporting restriction by means of a Judicial review. Try and do this as soon as possible, in any event before 3 months.

If you loose you could appeal to the Upper Tribunal, as such appeal is not not an excluded decision within the meaning section 11(5)

[MissyD]

Put in your application as VInny suggested, and let the first Tier Tribunal decide.

Directions will be issued by a designated judge for the Secretary of State to provide evidence that your application was indeed invalid. You could go one step ahead of them, by demonstrating that you provided the right information, and the fee section was filled in properly.

An appeal hearing will be set, and if it is found that your appeal is indeed valid, or the SOS could not provide convincing proof that your application was indeed invalid, you will be entitled to have your appeal allowed, on the basis that the decision of the SOS is not in accordance with the law and remains outstanding with the Secretary of State awaiting a lawful decision.

Whiles this matter is ongoing, they may try to detain you, therefore you are advised to report, or challenge the reporting restriction by means of a Judicial review. Try and do this as soon as possible, in any event before 3 months.

If you loose you could appeal to the Upper Tribunal, as such appeal is not not an excluded decision within the meaning section 11(5)

thank you Obie, how do I go about reporting or challenging the restriction?

what exactly is the enforcement office ? and what will I be required to do by going to them?

I've never heard what it is for?

[MissyD]

and which of the many forms on this site do I use??

http://hmctsformfinder.justice.gov.uk/H ... 20Tribunal

thanks again

[vinny]

Probably IAFT-1 Appeal To The First-Tier Tribunal (Immigration and Asylum Chamber) against an In Country [AsylumImmigration] Decision - from 19 December 2011.

[MissyD]

Thanks Vinny

what is a judicial review and how would a person go about this?

and when I report to the local enforcement office what do they do? what ar the procedures?

Do I tell them I have filed an appeal?

[hassenpk]

As you rightly said,

7.18 There will be a number of safeguards to ensure that the amended rules are fair and proportionate:

• Where an applicant submits an application before their previous period of leave to enter or remain expires, but the application is rejected as invalid after their leave expires, the 28-day window in which the application may be submitted as an overstayer will start from the date on which the application was rejected, rather than when leave expired.

Unfortunately, they treat rejected in-time invalid applications (34C) different from refused in-time valid applications.

It would have been more fairer and proportionate if the UKBA had reinstated 17(1).

Hi Vinny,
28 days start from the point of invalidation and end when the new application launched or visa granted ? . Why i am asking because need to known am i eligible for 10 years rule .

Thanks
Hassan

[Jollyjustcome]

Hello, can Amber please help. I'm looking for what the rules were pre July 2012 regarding overstayers and applying within 28 days. How many days did you have to apply if you are an overstayer pre the new rules in 2012.

[RBeg]

Thanks Vinny



what is a judicial review and how would a person go about this?



and when I report to the local enforcement office what do they do? what ar the procedures?



Do I tell them I have filed an appeal?

Hi MissyD

So what happened to your case?
I would appreciate if you can update please.

thanks
Rbeg

[Obie]

I believe this thread needs to be updated with the changes of the law.

Following VED, which vinny has kindly updated in her original post, it is no longer the case, that the tribunal will adjudicate upon or determine an valid application ruled as invalid.

The only remedy will bw via Judicial Review.

However, if a subsequent application is lodged and refused, then basnet will engaged.

The Upper Tribunal appears to be changing the goal post ever so frequently.

[vinny]

However, if a subsequent application is lodged and refused, then basnet will engaged.

I think that is the key to obtaining appeal rights.

[Obie]

Yes it would appear so,, from the reading of Ved.

Ved is a senseless judgement and puts more burden on an appellant and result it further burden on the tribunal through the back door of JR.

An agrieved appellant will have to choose between making a new application and spending hundreds of pounds or Filing a JR and spending thousands of pounds. The SOS will have to foot the cost.

Why not deal with the issue of validity, rather that compelling an appellant to make a new application, and by the time the issue of validity arise, the secretary of state will not be able to prove it, and an appellant would have undergone undue financial trauma or difficulties.

[MissyD]

Hi MissyD

So what happened to your case?
I would appreciate if you can update please.

thanks
Rbeg

for some reason I was not getting any alerts as to new messages on this thread... to update on this situation:

I did appeal and went to court in February 2014 ..had a sort of crabby judge so the outcome was probably a blessing in disguise, but still not resolved.

To update:

went to court..the judge started to hear the case, then saw that the UKBA had not issued a particular document / paper that they are suppose to send when they give decisions (rejections, etc) and she refused to hear the case until the UKBA sent that document to me (forgot what the document is called, but it's basically a separate piece of paper telling you about the decision and right to appeal, etc)

She did 'hear' and prove that my application/payment was made in time and that UKBA could not prove that I did not pay the correct fee and that my original application made in time stands ..because I could prove it having had a copy of payment page from my application.

But she cannot hear the full appeal or put it through the court because of the missing document from UKBA.

She told them to send it through and when I got it I would have to appeal all over again.

Most of the lawyers present and the UKBA rep stated that most judges do not bother with the formality of the document she was speaking of and take it on principle from the UKBA rep in the court room and continue the case and that particular judge was just being difficult.

So to date, I am still waiting on UKBA to send that one document to start the appeal again....and of course it is causing lots of problems especially where employment is concerned with all companies worried that they will be fined by UKBA....

To my understanding, based on the judge giving that the application was made in time, this means that my 'visa' continues in the same until the case is heard and decided, which means I have the right to work under current visa (the one that expired and I was seeking to renew and they rejected and I am appealing).

1. Please let me know if I am correct in thinking this
2. Should I call UKBA or whatever they are calling themselves lately, to enquire as to what is going on?

Again, it's becoming really difficult to keep a job, even temp agency work, so any advice would be appreciated...

[MissyD]

I've found the information for the name of the document: the notice of the immigration decision

and this bit of info: the reasons for refusal letter is not the notice of the immigration decision and does not of itself generate the right of appeal. A notice of immigration decision must comply with the provisions of the Immigration (Notices) Regulations 2003. It is the Immigration decision which generates the right of appeal by virtue of section 82(1) of the Nationality, Immigration & Asylum Act 2002.

so my question I guess still is what is my status at the moment since they still haven't issued this document as per the court's directive.

[favour]

Hello MissyD, your story is very similar to mine, and I am surprised that you are yet to resolve it, even after over a year. same refeusal letter (lol)

Judicial review withdrawn, now apeal given, please help!

we have decided to go ahead with the apeal, but I hope they will agree i am not an over stayer.

[favour]

Did your appeal trigers 3d?

[MissyD]

I am not aware of what is section 3d...

I was told I'm covered by section 3c and have right to work as the judge told the Home Office rep that the only decision she is making is that the application was made in time, and I could prove my payment was made and correct.

I'm here trying to get some more info myself.

[Obie]

Further positive Judgement in regards to Section 3(C).

Basnet endorsed and extended.

Zahoor v Secretary of State for the Home Department [2014] EWHC 2751 (Admin) (08 August 2014)