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Moderators: Casa, Amber, archigabe, batleykhan, ca.funke, ChetanOjha, EUsmileWEallsmile, JAJ, John, Obie, push, geriatrix, vinny, CR001, zimba, meself2, Administrator
How could the upper tribunal have given him permission to appeal to the higher court?vinny wrote:If the UT gave you permission to appeal to a higher court, then it's likely that Section 3C continues. Else, Section 3C would have lapsed when your appeal rights are exhausted.
You may make a fresh application only within 28 days after Section 3C lapses.
The documents required for FLR(M) are stated on the form.
My wife came here in April 2011 when she was about 23 years old. She made her application in Dec 2012. So they are saying as she has spent 23 years of her life in Bangladesh they don't see any insurmountable obstacle for her to go back. We can still maintain our relationship while she goes back to Bangladesh. Also now I think the reason for the refusal could be she applied on FLR (O) form which was supposed to be FLR (M).Obie wrote:What was the reason for refusal?
Did your wife had a leave to remain prior to making her application.?
Nothing was mentioned about the appeal in the refusal letter. So we just thought that our appeal rights are exhausted.vinny wrote:If the UT gave you permission to appeal to a higher court, then it's likely that Section 3C continues. Else, Section 3C would have lapsed when your appeal rights are exhausted.
You may make a fresh application only within 28 days after Section 3C lapses.
The documents required for FLR(M) are stated on the form.
They didn't mention about any requirement that she did not meet. They are saying you don't have any children here, you have most of your family in Bangladesh, your husband has spent most of his life in his country so there is no insurmountable obstacle for you to return to my country.Obie wrote:What you are talking about is proportionality.
Which requirement of the rules did the tribunal say your wife did not meet, that resulted in them concluding that it is proportionate for you to return and settle in Bangladesh.
Did you have a hearing at the Upper Tribunal, which was subsequently dismissed, or you were not given permission to appeal to them?
Can I make a fresh application on FLR ( M ) application form? While I seek permission to leave to the Court of Appeal?Amber_ wrote:If the upper tribunal dismisses your appeal from the FTT, then you can apply to the UT for permission to leave to the Court of Appeal. Time limits are set out in 44 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
Thank you very much for your reply. She had visa when she applied for extension on 14 December 2012. Since then we got the first refusal on 25 November 2013. We appealed first tier tribunal and upper tier tribunal. The final refusal we got was for rehearing to upper tier tribunal on 7 June 2014.Obie wrote:I dont think you can appeal to the court of appeal. It seems to me, that after the first tier tribunal dismissed your appeal, you applied for permission to appeal, and this was refused.
You cannot therefore appeal to the court of appeal. You can only apply to the high court for permission to Judicial review the Upper Tribunal refusal of permission to appeal.
Did your wife have a leave before the refusal.
If she does, and provided you meet the financial and accommodation requirement, you should apply before 28 days.
Thanks again. So should I raise appendix FM and Section 85 ( 3 ) when I appeal to the High Court for judicial review? Should I make the fresh application after I lodge the appeal to high court?Obie wrote:I believe the advise you received has been extremely poor.
It appear to me, that your wife applied for Leave at a time when you were not settled. So they would have refused.
Your lawyer should have varied the application once you had secured ILR and use form FLR(M).
However when you appealed, the judge ought to have engaged Appendix FM, and state what requirement you failed to meet, before dealing with proportionality.
You are entitled to raise appendix FM and section 85(3) allow you to raise those grounds at the tribunal.
Some thing went terrible wrong somewhere. I am not exactly sure what your rep was thinking or doing.
The problem is to find a competent advisor. I thought my lawyer was very much competent. Anyway I earn that amount annually. I will lodge the appeal for Judicial review in High court and apply for her in FLR ( M ) application in 28 days.Obie wrote:Perhaps I am a bit too technical. I dont think you have a grasp of the advise I gave you, perhaps you should seek a competent adviser to assess the merit of your case.
There is no section 3C right. Your wife should apply within 28 days or she will be considered as an overstayer. I hope you earn up to 18600 annually.
I know now one of my friend who was in the same situation as mine. He applied on SET(O) and FLR (M) for his wife accompanied with a cover letter requesting the Home Office to consider her application after his application was considered. Both of their application were successful.Obie wrote:I think I figured what happened.
When they made the FLR (O) application the guy's visa was on the verge of expiring and the same was the case for the wife.
There is therefore no way FLR(M) would have been appropriate, as the spouse was not present and settled , or a British at the time of the application.
Then his application was approved in June. I believe the UKBA was expecting a competent adviser to Vary the application, by filing FLR(M) and sending his passport showing she was the spouse of a person present and settled. They gave them 5 months to do this, which is an awful long time by UKBA's standard, but this was not done.
Now the lawyer had a second bite of the cherry, by raising these issues on appeal, provided of course the wife met all the conditions in Appendix FM, but it appears this was not done. It appears that both application and appeal was not advanced on the basis that the applicants sponsor was now present and settled. It is understandable at time of application, but they had a significantly long period between June and November and appeal to put things right.