ILR Refused is the HO right or wrong ?!

[Ameer_zyzom]

I applied under 10 years long residence ...

My immigration history

On 22/04/04 i was granted leave to enter the United Kingdom as a Student until 13/10/04.

On 16/11/04 i was granted leave to remain as a Student until 31/08/05.

On 24/08/05 i was granted further leave to remain as a Student until 18/09/06.

On 28/09/06 i was granted further leave to remain as a Student until 31/10/07.

On 14/12/07 i was granted further leave to remain as a Student until 30/11/08.

On 24/03/09 i was granted further leave to remain as a Student until 31/07/10.

On 01/09/10 I was granted further leave to remain as a Tier 4 (General) Student until 15/09/11.

Prior to expiry of my leave, the
I made an in-time application for further leave to remain as a Tier 4 (General) Student. This application was refused on 26/10/11 and the decision received on 31/10/11.

On 03/11/11 i re-submitted the application. However, the application was again rejected on 21/12/11 as it had been submitted whilst i was still entitled to appeal the decision made on 26/10/11. I calculate that i was entitled to appeal the decision by 11/11/11.

again I submitted the application on 05/01/12 but this was returned on 21/01/12 due to an error in relation to the fee. I submitted for the fourth time on 23/01/12.

You will note that all of the above applications were submitted within days of receipt of the refusal/rejection letters and within 28 days in any event.

On 10/04/12 i was granted further leave to remain as a Tier 4 (General) Student until 05/11/12.

On 12/10/12 i made an application for leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant. This application was refused on 29/05/13.

In a determination promulgated on 03/01/14 my appeal was allowed and the matter remitted to the Secretary of State.

On 05/08/15 - some 19 months after my appeal was allowed - i was granted leave to remain in the United Kingdom as a Tier 1 (Entrepreneur) Migrant until 05/08/18.


The home office decision:
You have applied for indefinite leave to remain in uk under 10 years long residence but your application has been refused

Reasons:
It is noted that your application dated 11 September 2011 was refused on 26 October 2011 with right of appeal. Your appeal right become exhausted on 11 November 2011..

You made a further application on 3 November 2011 this application was VOID because you still had appeal rights on your previous application

You did not have any valid leave to remain from your appeal right exhausting on 12 November 2011 until 10 April 2012 when you were granted leave to remain which equates to 4 months and 28 days.

Your gap in lawful residence is between 12 November 2011 until 10 April 2012.

Is the HO right ? And what is the difference between void and invalid application ?

You will note that all of the above applications were submitted within days of receipt of the refusal/rejection letters and within 28 days in any event.

[physicskate]

HO looks right to me - when an application is rejected twice in a row, continuity of visas is not treated as continuous. It would have only been ok if your application after refusal had been approved. But it wasnt. So you did not have leave between your application being rejected until the new visa was granted; you were not covered by 3c or 3d.

[Obie]

From my view , the problem is, you applied when section 3C was still active. They took over a month to inform you of the invalidity and once they did you remedied it straight away.

My difficulty is , does fairness not require then to consider that your 28 days commences from 22nd December when you were informed of the invalidity or the 12th November, when you became entitled to make a new application.

Because from the 12 November, you had up to the 10th December to make a new application, and If they had sent you the invalidity notice sooner, you would have remedied it, but the sat on it until the 21 December, when your leave had expired and your 28 days had elapsed .

I know in legal terms they may well be correct, but in fairness terms, is this correct. Might your case not be one for which the Secretary of State ought to have exercised the residual discretion found under the Long residency provision.

It could be argued. If you have an appeal right, it may well be worth exercising it.

[vinny]

Obie made a good point. It may be possible to agrue that your overstay should have commenced when they had informed you of your application being invalid, as Section 3C automatically extends expiry of leave so that an appeal could be brought.

What was the problem with the fee payment?

[Ameer_zyzom]

thank you physicskate, Obie, and Vinny

Obie: Yes I was given an appeal right

vinny: the payment page was missing from the application ( solicitor mistake )

there is another point from the rolls:

"You can use your judgement and use discretion in cases where there may be exceptional, reason why a single application was made more than 28 days out of time".

I Can submit evidence to show that incorrect advice was given by the solicitor, and my previous application was submitted by him and i dont have full Knowledge about immigration rolls and i used a solicitor to advice and to submit the application on my behalf.

and still i dont know the difference between void and invalid application

[geriatrix]

On 03/11/11 i re-submitted the application. However, the application was again rejected on 21/12/11 as it had been submitted whilst i was still entitled to appeal the decision made on 26/10/11. I calculate that i was entitled to appeal the decision by 11/11/11.

Something is not right!!

A new application submitted during such time that the applicant is "entitled to appeal" cannot be rejected for the reason stated above ..... it can only be rejected for the reason stated above if the applicant "entitled to appeal has in fact already submitted an appeal and the appeal is outstanding on the day of such a new application" and in this case the application would be a "void" one.

Or am I missing something?

[Ameer_zyzom]

Ameer_zyzom wrote:
On 03/11/11 i re-submitted the application. However, the application was again rejected on 21/12/11 as it had been submitted whilst i was still entitled to appeal the decision made on 26/10/11. I calculate that i was entitled to appeal the decision by 11/11/11.
Something is not right!!

A new application submitted during such time that the applicant is "entitled to appeal" cannot be rejected for the reason stated above ..... it can only be rejected for the reason stated above if the applicant "entitled to appeal has in fact already submitted an appeal and the appeal is outstanding on the day of such a new application" and in this case the application would be a "void" one.

Or am I missing something?

You didn't miss any thing

You are 100% right there is some thing wrong... Because I re submitted the application during appeal time the HO decided to void the application, and the case worker said to me that this is my mistake and I should to wait until 12 November befor i re submitt the application. This what happend
* I went to Liverpool same day service

[geriatrix]

So the caseworker ill-advised you, you believed him/her .. and as a result you are indeed in trouble, as I see it.

You received a refusal on 31-10-2011.
Since your leave had expired by then (15-09-2011), your leave was extended under section 3c and that would have continued until all appeal options were exhausted.
Assuming you chose not to appeal, so your section 3c leave ceased on 11-11-2011 and from the next day onwards you became an overstayer.
You made the next application on 05-01-2012.

So, you were an overstayer between 12-11-2011 and 05-01-2012, which is more than 28 days.

Had you submitted an application on or before 09-Dec-2011 (within 28 days of becoming an overstayer on 12-11-2011) you could have argued that you had sumbitted all further applications within 28 days of refusal / rejection hence contiuity of residence was not broken (in line with 276B(v)).

[Obie]

As per section 3C (4) , the caseworker is right. The OP was not entitled to make a new application, until 12-11-2011. The caseworker was right on that. It is unfortunate that the OP suffered from an extremely inept advise.

My issue is whether in the light of the OP'S case, and the time the SSHD took to inform him about the void application, whether or not does justice not require the SSHD to overlook that period of overstaying, given the circumstances of the case and the fact that OP act expeditiously in all the circumstances.

I agree with the caseworker, that on a proper and strict reading of the law, the OP indeed overstayed.

[Ameer_zyzom]

Dear Obie

Could you please explain to me What is the difference between void and invalid application ?

[Obie]

An application which statute does not permit to be made is void , if made.

An application which is deficient in some area like failure to pay full fees, to enrol biometric or fill mandatory sections, is invalid by virtue of that failure.

[Ameer_zyzom]

Thank you Obie
I ment the difference not the meaning and 28 days after I received the notes from the HO that my application is void or invalid is there any different, and there is no clear guidance about the void application and if the application was void then I will loss the benefit from 28 days even if I submit my application within 28 days from HO letter or notice that my application is void .
Still I don't know if there is any different between invalid or void or refused or rejected application and 28 days after you receive the letter or the notes from the HO.

[CR001]

Obie has explained exactly what the difference is between void and invalid.

You cannot submit an application if you have an appeal pending, this would make your new application void as it is not permitted to have an appeal and a new application.

If you had a problem with payment of the visa fee and the application is rejected on this basis, this is an invalid application.

[Obie]

OP I think your only option is an appeal and the tribunal may rule that discretion should be exercised in your favour, in the circumstances of your case.

But I have to be honest and say, section 3C (4) does not permit this, although the supreme court has granted permission in a case involving that particular question.. but as the law stand, you are not permitted to apply.

[Ameer_zyzom]

Thank you all and special thanks to Obie,
I will go to appeal the HO decision, and I'm thinking to send a letter to the HO to ask for re-considering the decision, do you think this is a good idea?

[vinny]

I made an in-time application for further leave to remain as a Tier 4 (General) Student. This application was refused on 26/10/11 and the decision received on 31/10/11.

On 03/11/11 i re-submitted the application. However, the application was again rejected on 21/12/11 as it had been submitted whilst i was still entitled to appeal the decision made on 26/10/11. I calculate that i was entitled to appeal the decision by 11/11/11.

again I submitted the application on 05/01/12 but this was returned on 21/01/12 due to an error in relation to the fee. I submitted for the fourth time on 23/01/12.

Even if they used the concession that your date of overstay started from when they rejected your application that was made while Section 3C was in-force, you still have the problem of making a subsequent invalid application, due to the missing fees page. The time between 21/12/2011 and 23/01/2012 was more than 28 days.

[Obie]

But if he overcomes the void issue, then he will be in the position, will he not, in arguing that fairness will require the Home office to request that he resolve the fee issues within a certain period, as is the current practise under the rules.

I am of the view that he may be ok, if he can deal with the void issue.

On a proper construction of Section 3C(4), people who clearly have no intention of appealing , and who have expressed a wish not to appeal, by making a new application, should really not be penalised from making a new application .

It is arguable at the very least, that it could not have been the intention of parliament to put an appeal deadline that precludes a person from making a new application, in circumstances where they do not wish to appeal.

Perhaps one could leave that for another day in court. If an opportunity arises for such an argument to be ventilated.

[Ameer_zyzom]

thanks again for all of you and special thanks to Obie
any way, i will go to the court and i will fight the HO decision and i will inform you about the hearing date and the out come and if there is any suggestion before that more than welcome...
Regards

[avjones]

Very difficult indeed to give an accurate answer on this - there are ambiguities. My best guess is that you will not succeed on appeal, but you could well do. It;s a complicated legal area.

[masha]

Hi
I read your details n strangely they resemble alot to my case. Home office was absolutely wrong in making your application void!!! But do you have any evidence for this.. Your case is all based on this blunder of ho. If you can prove this you Win the case as remaining errors were done due to ho mistake.

[Ameer_zyzom]

Hi
I read your details n strangely they resemble alot to my case. Home office was absolutely wrong in making your application void!!! But do you have any evidence for this.. Your case is all based on this blunder of ho. If you can prove this you Win the case as remaining errors were done due to ho mistake.

yes of course, and you can see all the evidence and when the HO received all my previous application in my SAR

[Ameer_zyzom]

I regret to inform you that my appeal has been dismissed.

[secret.simon]

Can you give more details as regards the dismissal, perhaps by quoting from the judgment/ruling?

[Ameer_zyzom]

First -tier Tribunal's decision
Findings of facts and reasons
12. the relevant part of the appellants immigration history is set out below
13. He was first granted leave on 16/11/04. That was renewed without a break until 15/09/11 on that same day he applied for leave to remain as a tier 4 migrant but his application was refused on 19/10/11. I am satisfied he benefited from section 3C as his application was in-time.
14. On 03/11/11, he made an application again for leave to remain as a tier 4 migrant but the respondent treated this is void because he did not become appeals rights exhausted until 11/11/11 ( the appellant never exercised that right of appeal). No steps were taken again in 2011.
15. On 05/01/12 he made an application for further leave to remain as a tier 4 migrant but that was rejected 19/01/12 ( seemingly on fees issue ).
16. On 23/01/12 he applied for leave to remain as a tier 1 entrepreneur. That was a change in status and this leave was granted on 10/04/12. That was subsequently renewed in time and he benefits from extant leave until 05/08/18 (i.e. Some 18 months left to run).
17. The appellant claims that he has had 10 years long residence which has been continuous. At the start of the hearing I read out the relevant paragraph of the case law dealing with section 3C leave. That was because there was a material dispute as to whether there was indeed a break or not; and why the respondent was asserting 12/11/11 as the date of lapse of that leave.
18. I am satisfied that the refusal has correctly identified the date of the appellant being appeals right exhausted on 12/11/11. That was because he applied on 15/09/11 while he had extant leave but this having been rejected the operation of the Act prevented a further application until the appeal right had been exhausted. That is because from my understanding of the case law his section 3C leave was extended after the decision was made until the appeal period ended and in this time he could not make a further application.
19. His subsequent application was void for payment reasons and then the one that was valid was made on 23/01/12 but as this was out of time ( i.e. no extant leave) the appellant did not benefit from section 3C leave. The application was granted which reset the clock for continuous residency.
20. I am satisfied that the respondent has correctly asserted a gap of 4 months and 28 days in continuous residence.
21. The appellant has in effort to meet the grounds for refusal attempted to contact the previous solicitors who were involved with making the 2011/2012 applications. That is because he asserts that these applications were in error and/ or against his instructions. Those enquiries have not borne any fruit.
22. However, I am not satisfied that this is a material consideration for this appeal. At the relevant time, the appellant had been in the U.K. for about seven years ; first as student and then as tire 4 migrant. I am not satisfied he could have had a legitimate expectation of incurring a further three years of lawful leave in order to meet the 10 years residency at the time of the impugned application which broke his residency. Much can happen in three years; it is not an inconsiderable period of time.
23. If he had a legitimate expectation at the time, one would have expected him to pursue the complaint with the legal advisers at that time. I note in any event there was a delay for the reminder of 2011 and then a switch from tier 4 migrant application at the start of January; and some three weeks later making application for tier 1 entrepreneur application. I am satisfied that the appellant's concerns at the time were with regards to regularizing his position. He did so with no active pursuing of the firm until recent times regarding any issues that it may have had on his continuous residency.
24. I note the policy relied upon but I am not satisfied that the appellant's situation falls into the examples of gaps in lawful residence. The period to be met as a gap is fairly significant and much more than the 28 days that is ordinarily permitted. I am not satisfied when looking at the immigration history of the appellant; the various applications which were made; and the late pursuance of the solicitors' alleged misconduct is sufficient to bring this case within the realms of 'exceptional circumstances' as envisaged in the policy document. I would echo the same rationale for the issues raised with regards the Home Office processing the applications.
25. For all of those reasons I am satisfied that did have a break in residency as set out in the refusal letter. He therefore cannot meet the 10 years continuous residency either under the rules or as per the exception set out in the policy.
26. I am not satisfied that there are sufficient grounds to look outside of the rules given that the appellant has extant leave until 05/08/18. If I was required to go outside of the rules I would note the following which would not take the appellant's case any further in any event.
27. I am not satisfied that there are any article 8 right being interfered with at the present time. He is with his wife and children in this country enjoying family life. There are no removal direction; he is running his business; he has 18 months left to run on his leave; and all the evidence suggests he could make a further in-time application.
28. Whilst of course if he was granted ILR his children could apply for British nationality that is a prospective matter. The argument is based on the failure of the children to obtain something which they may be entitled to but their entitlement is contingent on the appellant meeting ILR status; not as of right by operation of statute ( as say for example being able to apply once a British born child reaches 10 years old ). Given the not insignificant gap in 10 years residency and the failure to come within the purview of exceptions under the policy I am not satisfied that rights which are contingent can be said to have been engaged under article 8. If they are then the application of a predictable set of rules, treating similar applications in a like manner etc in pursuance of lawful immigration controls mean any interference is not disproportionate.
29. The appellant also relied upon his ability to regularize his family affairs and financial affairs. He is currently on tier 1 entrepreneur visa and that strikes the correct balance in terms of providing for a sufficiently long period for business decisions to be made and lawful immigration control. He has had such tier 1 visas since April 2012 and as I understand it he will be able to apply again at the end of the current period and/ or make a settlement application after five years. As such, any interference with family or private life is mitigated to the extent he has some 18 months left to run and is able to apply again in the future. The appellant's arguments are really centered on personal convenience rather than active interference with article 8 rights in my assessment.
30. Furthermore, there is a dearth of evidence as to how family life is being interfered with given the children are all with the appellant and his wife. Considering the lead cases of MK and JO I am not satisfied that there is sufficient evidence produced by the appellant to show that there is an interference with the children's Article 8 rights or as to how their best interests should be decided otherwise. In those circumstances, the default position of maintaining the status quo is appropriate and adequately deals with the article 8 rights of all the family members and the best interest of the children.
31. Based on the evidence before me I am satisfied that making a further in-time application which is properly evidenced strikes a proportionate balance between any Article 8 rights asserted and the state's economic interests in immigration control.

Notice of Decisions
The appeal is dismissed on human rights grounds.
No direction for anonymity is made

[Ameer_zyzom]

There is some point from the appeal decision I would like to share it with you :-

* Point 14- " ((No steps were taken again in 2011))." He is right, Because my application and all my documents was with HO, including my passport, until 21/12/11 ( Seven weeks), how I will re-submit ?!
* Point 16- ((On 23/01/12 he applied for leave to remain as a tier 1 entrepreneur. That was a change in status and this leave was granted on 10/04/12. That was subsequently renewed in time and he benefits from extant leave until 05/08/18 (i.e. Some 18 months left to run).))
He is 100% wrong I applied as Tier 4 migrant granted 10/04/12 until 15/11/12 and I applied as tier 1 entrepreneur on October 2012 and I was granted on 05/08/15 until 05/08/18 after 34 months .

* Point 19- ((His subsequent application was void for payment reasons)) -
he is wrong, my application was rejected not a void
* Point 23- ((If he had a legitimate expectation at the time, one would have expected him to pursue the complaint with the legal advisers at that time. I note in any event there was a delay for the reminder of 2011 and then a switch from tier 4 migrant application at the start of January; and some three weeks later making application for tier 1 entrepreneur application. I am satisfied that the appellant's concerns at the time were with regards to regularizing his position)):- he is 100% wrong I applied for Tier 1 entrepreneur on October 12 Not in January and after 10 months not 3 weeks later
* Point 29 (( He has had such tier 1 visas since April 2012 and as I understand it he will be able to apply again at the end of the current period and/ or make a settlement application after five years.)) he is wrong again I was granted tier 1 visa on August 2015 NOT April 2012.