tier 4 student FLR refusal

[vinnie0020]

hello I am asking on behalf of my friend. he got refusal for tier 4 student flr. He came to uk in 2005 as a student visa which was valid for 3 years. he further extended his visa twice for 1 year making it 5 years. later he switch to Post study visa for 2 years. after post study he changed back to student visa and got extension for 1 year. At this point he has been in uk for nearly eight and a half years. He put his final extension for 1 and half year which he got refused for with the right to appeal.
The reason they gave was 1. funds shown in persons name doesnot prove to be your parents as birth certificate does not has his name.
2. You cannot study degree level and above for more than 5 years. which i think he has not completed yet as his degree level and above only count up to 3 years.
Summary of the visas
Sep 2005 to Dec 2008 (Entry Clearance student visa)
March 2009 to Jan 2010 (1st student visa extension)
April 2010 To March 2011 ( 2nd Student Visa Extension)
Nov 2010 to Nov 2012 (Post Study Visa)
Feb 2012 to Dec 2013 ( 3rd student visa extension)
Dec 2013 applied for student visa extension and got refused.

PS: Gap between the visa is the time taken by home office to process the application.

Ques: The five year rule regarding student visa came into affect since 2009, is it applicable on me aswell in terms of student visas before 2009?

I will grateful for you advise. Regards

[Greenie]

The 5 year cap did not come into force until 2012 but yes any time spent studying at degree level with leave as a tier 4 migrant or under the old student rules counts, including time before the rule came into force.

[vinnie0020]

Many Thanks
I have another question. The way I counted my time as degree level and above was coming up to 3 years. I did my degree as a top up final year. And i got exemption for the 1st and 2nd year as I had diploma and advanced diploma from this country which are level 4 and level 5. I think they have counted that period too.
Does that period count as degree level as i was under impression that it was level 6 and level 7 that count for 5 year rule.
Many thanks
Regards

[Choc-Ice]

Many Thanks
I have another question. The way I counted my time as degree level and above was coming up to 3 years. I did my degree as a top up final year. And i got exemption for the 1st and 2nd year as I had diploma and advanced diploma from this country which are level 4 and level 5. I think they have counted that period too.
Does that period count as degree level as i was under impression that it was level 6 and level 7 that count for 5 year rule.
Many thanks
Regards

It does according to HO interpretations..

[vinnie0020]

Thanks
So as per ho interpretation my appeal is more likely to be refused. So is there anything I can do.

Regards

[riz1986]

I think the 5 year degree cap rule could be challenged in High Court as it is back dated i.e., including migrants who were here under old student rules.This rule came into force in April 2012 which make no sense what so ever in immigration rules where you apply a rule back dated.HSMP forum JR was a landmark ruling by High Court which says u can't change the rules retrospectively.

Also the spouse visa minimum income threshold case is also in court pending for a final decision .see http://www.ukba.homeoffice.gov.uk/sitec ... ome-update

So I believe this 5 year degree cap rule can also be challenged on the basis in the court as a lot of tier 4 migrants are affected. Its only the matter of all students already affected or would be should get together set up a fund higher good lawyers and file a case in High Court.This is the only way forward !!!!

I'm more than happy to coordinate an effort for everyone.

[Olasunkanmi]

Thanks
So as per ho interpretation my appeal is more likely to be refused. So is there anything I can do.

Regards

@ vinnie0020, since you stated that you have already spent 8.5yrs in UK, you should still submit your appeal and this might take another 6- 8 months. You should then consider submitting another fresh application for say PHD programme (with the 5yrs cap on undergraduate programme, you still have another 3yrs for postgraduate) if your appeal fail and by that time you will be getting closer to your 10yrs qualifying period for your ILR.

Are you the applicant or your friend as you seem to get all the dates right which might implies that you are the person in question.

[vinnie0020]

Its my friend. but i have given him account details to ask the question as his case was very urgent and as i already have an account.
I really appreciate all the advise

Regards

[vinnie0020]

@Olasunkanmi. Thanks for the advise sir. It gave me bit of a hope. Sir if i do as you say and appeal and if they refuse take admission in Phd. Will it not affect my continuity towards ILR.

Regards

[Olasunkanmi]

@ vinnie0020, if your appeal got dismiss and you submit a fresh application in any different category within 28days then your 10yr long residency wont be affected as everybody has 28days grace period of overstaying which is consider during subsequent applications. The grace period is given because of circumstances like yours where applicants cannot submit a fresh application until after appeal is dismissed or abandon. You should therefore put plan in place for a fresh application so that you can submit immediately after your appeal is finalize.

[vinnie0020]

Thank you very much sir. That really helped. Is there any particular category that i can apply to or any category

Regards

[vinnie0020]

Hello
I met few solicitors and all said my chances to will appeal are very low. Also these days appeals take about 3 months. I don't know what to do. Need some more advise. Time limit is too less to prepare for switching.
One thing I don't understand that they refused me for 5 year cap but they still gave me 30 points for the cas.
Regards

[Olasunkanmi]

@ vinnie0020, have you submit your appeal yet? If yes, then for your information appeal process might take close to a year or so if you explore all the option at FTT, UT and court of appeal.

You should focus now on the initial stage of tbe appeal and then plan for next action once you get your hearing date.

[vinnie0020]

Hello sir.
I found from solicitors that the time elapsed during legal proceedings does not count towards ILR unless you win the appeal. Is it true? Looking at my situation as ho has kept my passport, is it still possible to get admission in university in masters and above. Can can I apply for marriage without my passport?
Regards

[shaq1]

Hello sir.
I found from solicitors that the time elapsed during legal proceedings does not count towards ILR unless you win the appeal. Is it true? Looking at my situation as ho has kept my passport, is it still possible to get admission in university in masters and above. Can can I apply for marriage without my passport?
Regards

If your passport with the HO then Uni will not issue you the CAS. Also you need it to get married, marriage registrar does not accept driving license as a photo ID.

[Olasunkanmi]

Hello sir.
I found from solicitors that the time elapsed during legal proceedings does not count towards ILR unless you win the appeal. Is it true? Looking at my situation as ho has kept my passport, is it still possible to get admission in university in masters and above. Can can I apply for marriage without my passport?
Regards

@vinnie0020, do you know that the ffg presently applies to your case;
(1) You are still on Tier4 student visa by virtue of section 3C extension of your last leave
(2) You can continue the programme for which you were refused the extension because you are still on the Tier4 student visa.
(3) If you therefore complete the programme for which your last extension was submitted during the appeal process and then submit your ILR even if appeal is lost, I believe the period during appeal process also count towards your ILR qualification period.

If you decide that you want to go for marriage, registry will accept your appeal documents as evidence that your passport is with HO and should conduct the ceremony but dont be desperate enough to go for illegal activities as your present situation look promising.

[vinnie0020]

hello Sir

All the solicitors that I met said time in the legal proceeding doesn't count until appeal is won and also it is very hard to cover 1 and half year in appeals. So i really don't know what's the best option.

Regards

[vinnie0020]

Hello

For instance if my first tier and upper tribunal appeal is refused what is my next option. I heard I can go for judicial review but if doesn't count towards the 10 years rule

Please advise
Regards

[Olasunkanmi]

@ vinnie0020, you should try and continue the programme for which you were refused as you still have your previous student visa extended under section 3C. You should also continue your appeal for as long as possible.

What is the present situation with your appeal? Also are you presently continuing your study?

I have advice you in one of my previous post that you should consider getting admission for PHD programme if the appeal is not successful and submitting that application within 28days of appeal dismissal will not break your long residency.

[searoze]

You cannot study degree level and above for more than 5 years. which i think he has not completed yet as his degree level and above only count up to 3 years.
Summary of the visas
Sep 2005 to Dec 2008 (Entry Clearance student visa)
March 2009 to Jan 2010 (1st student visa extension)
April 2010 To March 2011 ( 2nd Student Visa Extension)
Nov 2010 to Nov 2012 (Post Study Visa)
Feb 2012 to Dec 2013 ( 3rd student visa extension)
Dec 2013 applied for student visa extension and got refused.

Cap rule is:
3 years at below degree level (level 1-5)
5 years at degree level (level 6,7)
6 years if you have completed 4 years graduation degree

This cap DOES NOT calculate any extra time apart from your course start and end dates.

If your course start date was 01/03/2005, end date 01/03/2007 but you got student visa till 01/09/2007. It will be counted as 2 years not 3 years.
You calculate all your course start and end dates, then deduct any time spent on below degree level. Add time for you proposed course and calculate if its not more than 5 years.
In any case I would suggest you to go for appeal to stretch the time.
I assure you, the time spent during appeal (1st Tier or Upper tribunal) does counts towards 10 yrs ILR.

Please check Here and here

Hope it helps. Do not hesitate if you have any further questions

[vinnie0020]

Hello

I did level 4 and 5 (Diploma and advanced diploma) for 3 years and level 6 and 7 for 2 years and 10 months. But i think they counted level 4 and 5 as i got exemption for my level 6 based on level 4 and 5. My degree wasnt a 3 year degree, it was just a final year but i got 1st and 2nd year exempt because of my level 4 and 5 (Diploma and advanced diploma.
Regards

[thamsinkumar]

https://www.gov.uk/government/publicati ... d-3d-leave

Hello

I did level 4 and 5 (Diploma and advanced diploma) for 3 years and level 6 and 7 for 2 years and 10 months. But i think they counted level 4 and 5 as i got exemption for my level 6 based on level 4 and 5. My degree wasnt a 3 year degree, it was just a final year but i got 1st and 2nd year exempt because of my level 4 and 5 (Diploma and advanced diploma.
Regards

[vinnie0020]

Thanks everyone for the advise. I have launched appeal and waiting for the appeal date. Its been 2 weeks court took payment but still no updates with the hearing dates. Any idea how long it takes for them to give the hearing date

Thanks

[searoze]

vinnie0020 wrote:Hello

I did level 4 and 5 (Diploma and advanced diploma) for 3 years and level 6 and 7 for 2 years and 10 months. But i think they counted level 4 and 5 as i got exemption for my level 6 based on level 4 and 5. My degree wasnt a 3 year degree, it was just a final year but i got 1st and 2nd year exempt because of my level 4 and 5 (Diploma and advanced diploma.
Regards

Hi
You did the the best
While you waiting for your hearing, I would say the best thing to do is if you get level confirmation letter from the institutes where you got your diplomas from. Back in 2005-8, there were no requirement to mention the level of study so the most certificates and diplomas do not hold any level information on.
Best of luck

[vinnie0020]

I checked online today and it is different to what my institute said. I checked on the website below and it states the Advanced diploma is Level 6. But one thing i am confused that level 6 was for 6 months but as i took admission for whole diploma and advanced diploma, how can i prove that my advanced diploma was for 6 months as my letter from institute states i studied diploma and advanced diploma from 2005 to 2008.
Also if my level 6 and above including the new CAS comes up to 5 years and 1 month, are they more likely to refuse me in the appeal?

Thanks