Application refused, advise required, please.

[joolze]

Dear Forumites,

Much as i've been a background (non-contributory) participant in much of the discussions on this forum (mainly perusing varied topics).
I have just today received a refusal letter to an application i made in march '14. Here are the background info - I have been in the Uk for more than 20 years but has been unfortunate in my immigration odyssey the last of which culminated in an arrest in 2009 and the discovery of the absence of my Portuguese wife from the matrimonial abode, hence the decision to revoke the EEA spousal Visa (which i've had for over 4 years).

At the end of the deportation notification and the subsequent appeal, the it was withdrawn and i was granted a six months permit pending the application of my current partner who is on a PBS visa due for an ILR in February '14 (which was successful). However, without an accompanying letter with the BRP i presumed that i could apply as a PBS dependant which i did in March the result of which came today. Not surprisingly it revealed that the initial visa was granted on human rights basis as i've got a 5 year old girl with my present partner who was born in the UK.

The letter stated that there is no right of appeal but that i could make an application in any other category. My questions therefore are how long do i have, to make a new application and do i have to wait for my daughters registration before putting in an application plus would an FLR(FP) be the appropriate route. Many thanks in anticipation.

[Obie]

Firstly, let me get the legal points resolved.

Why were you not given a right of appeal?

Did you have leave before the application? and did that leave expire during the consideration of that application?

Is the Portuguese woman still in the UK and exercising treaty rights?

Where you given a right of appeal against that revocation?

[joolze]

Hi,
Thanks for the prompt response, and the Portuguese woman has never exercised treaty right in the UK (she disappeared immediately after the union) that was why the decision is somehow non-contestable. After the deportation order was withdrawn after appeal for re-consideration i was granted a 6 months permit with its expiration the same as my partners PBS leave (she is due to apply for ILR). But because there was no letter explaining the ground, i simply assume that it was as her dependant as a PBS migrant and applied for extension accordingly which was refused with the explanation that it was on a human right basis. And No i wasn't given an appeal against the revocation hence the deportation order.

[Obie]

But through the Portuguese woman, you were issued with a 5 years residence permit, which was revoked 4 years into the marriage. So surely she must have exercised treaty rights in the UK or am i missung something?

If you apply as a PBS migrant, and your wife is about to obtain ILR under that system, then surely your human right case ought to have been considered . The status quo still remains does it not?

What i have difficulty with is the refusal of an appeal right.

I guess you applied before the 6 months ended, therefore they should have granted you a right of appeal because as a result of their decision, you loose your section 3(C) right, or an i wrong on that?

[joolze]

Hello,
I applied after the expiry of current leave but not up to 28 days after, and i guessed it was refused because i applied using the PBS form (for which i paid about £1600 instead of £601 for the FLR (FP)) it was refused and they were also saying there's no record of my entry into the country. But that i could apply in any other category and that my documents has been sent to a removal center and that i should contact the center. Meanwhile the Portuguese case is already a non issue as she was only here for about 1 month to set up documents for the initial application, my solicitor mentioned the right of retention but as ignorant is no excuse in law, i just wasn't aware of what options i had until it was too late. Thanks again for taking the time to reply.

[Obie]

Well I believe the only option available is Judicial review I suppose, because according to what you have stated, the author of the refusal said your human right has been assessed or am I wrong.

Where is the child on whose basis you were granted the leave?

[joolze]

No, he/she said "On 06 June 2013 you were granted Leave to Remain in the UK under Human Rights until 07 February 2014" and another paragraph reads "Future applications for entry clearance or leave to enter the UK will not be refused under pagraph 320(7B) if you are making an application as:
a spouse, civil partner or unmarried or same sex partner under paragraphs 281 or 295A of the immigration Rules;
a fiancee or proposed civil partner under paragraph 290;
a parent, grandparent or other dependent relative under paragraph 317;
a person excising rights of access to achild under paragraph 246; or
a spouse, civil partner, unmarried or same sex partner of a refugee or person with Humanitarian Protection under paragraph 352A.352AA,352FA or 352FD.

And the child is here in the UK.

[joolze]

In closing it said
"Please note that there is no administrative review available for an in-country application under the Point Based System.
If you are not entitled to a statutory right of appeal, you may wish to submit a fresh application with new or additional information not included in the application that is the subject of this decision. The application must include full supporting evidence (including required evidence supplied to us with any previous) and the appropriate fee. All supporting evidence must meet the full requirements specified in the immigration rules. Alternatively, if you wish to apply for leave to remain in another capacity you must do so on the appropriate application form with the appropriate fee. Further information and the relevant application forms can be obtained from our website http://www.homeoffice.gov.uk. "

[joolze]

Many thanks to Obie for the reply but my question still remain unanswered i.e. how long before the HO comes knocking on my door as i haven't got any resources now to make a fresh application plus, is the FLR(FP) the appropriate form to use.
Thanks in anticipation.

[Obie]

https://www.gov.uk/government/publicati ... flrfp-flro

The about link provides the application for fee waiver if you are unable to meet the fee requirement.

As you will be applying under the 10 year route, it seem to me that FLR (FP) will be the appropriate form.

[joolze]

Thank you once again for the response, unfortunately i couldn't avail myself of the fee waiver as i am neither -nor could i be classed- a destitute, which is the requirement for the waiver.