I am writing on behalf of my husband. He recently received refusal to ILR saying on 3 occasions he had rejections, Although he has had NOT one rejection in the past 10 years( sorry for bold)
The first instance this junior caseworker states is early in his 10 years and for that period we have solid proof because my husband has continuous visa stamped in his pp for that period and moreover he traveled to India twice during the time he says visa was rejected!! How could he travel and come back if he had no visa or if his pp was in Home office. Now this we can prove HO wrong,
Our concern is the next 2 'rejections' he speaks of
In March 2009, Husband applied for Student visa, the Application came back as my photo (dependent's )had a slight smile
, so they asked us to re submit with new photos within 28 days. Now UNfortunately this 2nd time around when we sent the application, one particular question D26 we missed to tick, that was again dependent application and it was asking if the dependent leave had expired at the time of application, we had to tick 'no'. But maybe we were tensed or some bad luck we didnt tick 'no' there.
How ever the HO send it back saying it is Invalid application, but they again asked us to re submit in 28 days and also enclosed a fresh application to send. (and both times sadly there was issues with (my)dependents photo and application,not main applicant)
But both instances we didn't receive any rejection/refusal letter. If we did, we should have left the country as we had no other visa, or we may have appealed which we didn't need to as the 3rd time they accepted and approved the visa.
I would now wish to write exactly what the case worker wrote to us. Sorry in advance for the long post.
"Consideration has been given to your application and it is noted from your immigration history outlined above that on 30 March 2009 your leave expired and on 25 March 2009 and on 21 April 2009 you submitted two consecutive applications for further leave as student which were both rejected.
You then on 19 June made an application for leave as a Tier 4 Student and your leave was varied from July 2009 to 28 December 2009. Although your leave was varied on 27July 2009 it must be pointed out that any time spent following the submission of an out of time application awaiting for consideration of the application is not considered lawful even if that application is subsequently granted. As you submitted a second application within 28 days, and this application was also rejected, you do not get a further 28 days. Therefore you remained in the United kingdom during this period, you were doing so without valid leave.Therefore your continuous leave is deemed to have ended on March 2009 and as such your period of continuous lawful residence is considered to have been broken at this point"
Paragraph 276D does not allow the Secretary of State the use of discretion where you are satisfied that 276B has not been met. Paragraph 276D states that ILR "is to be refused" rather than "it may be refused" or any other use of flexible terminology. The Secretary of State has no power to take any factors into consideration in the application of paragraph 276C of the Immigration Rules. 276D precludes flexible fulfilment of 276B when considering a grant pursuant to 276C.
We have not been given a right to appeal as we have a valid Tier 1 general visa till Jan 2016.
How ever we wish to apply for re consideration;
1. The case worker has mentioned 'Rejected' both times where as we have received No Rejection letter from HO, instead just letter asking to re apply with the changes with in 28 days.
2. Does our initial application become out-of-time even though both times we applied within the 28 day frame given to us in the return letter.
3. If the application had become out-of-time third time how did the HO accept and approve it.
4. And he says 'you remained in the UK without leave between March 30 March 2009 and July 2009 a period of approximately 118 days' - can he add the time period the application was with Home office which he has done ?
Dear Senior Members, Please please let us know if we can combat this decision with any solid points
we are very disappointed and confused.
Thank you