10 Year ILR Refused

[ilruk84]

Dear All,

I am writing this on behalf of my cousin whose visa was recently refused. Below is his history and reason for refusal,

- Came to UK in Oct 2006 on Student Visa
- Apply for extension on time in Oct 2007 for student visa and successfully granted
- Apply for another student visa extension on time in with valid visa in November 2009 but application sent back as rejected as payment was declined and he got the application back on 16th December
- Applied again in January 2010 1st week (he cant remember exact date as he doesn't have the posting receipt) and visa was granted on 10th Feb 2010
- Applied for PSW in time application in May 2011 and visa was granted for two years
- Applied for Entrepreneur visa within UK in May 2013 no news on application after that
- Varied his application from Entrepreneur to SET ILR in October 2016 as he completed his 10 years
- Refusal received on August 23rd 2017 with right of Appeal

Now the refusal says that in December 2009 his visa was rejected and from 16th December to 10th Feb he dint have valid visa so he passed 28 days time period as per home office record they received the application on 18 January 2010

Now as per my cousin he didn't have any reason to delay the application and he reapplied in 1st week of January on 8th or 9th but he doesn't have any proof of postage.

So when he got the rejection Home office didn't have him chance to resend the payment details instead they rejected his application. The reason for payment to decline was that bank needed to block his card as they found suspicious transition from other part of the world and we think during the same time HO tried taking the money hence it got declined.

Now he went to see couple of barristers and they all are saying that without proof of postage its very hard, can anyone suggest anything what can be done. He has lodge the appeal but need some solid points to win his case any help would be appreciated.

Regards

[zimba]

Based on the law, section 3C does NOT extend when the application submitted is returned as invalid. This means the applicant is considered an overstayer from the expiry date of the last visa. Obviously any period of overstaying beyond 28 days breaks the lawful continuous period required for long residence.
In case of Mirza v Secretary of State, the supreme court criticised this law but maintained the decision made by HO.

[ilruk84]

Hi zimba

Thanks for your reply. I understand what you have said but dont you think HO should have asked for payment details again rather than refusing the application? Can we fight on this point in court?

Also he posted the application within 28 days but he doesn't have any proof it could be that HO entered the application late in their system

Regards

[jt897142]

Hi zimba

Thanks for your reply. I understand what you have said but dont you think HO should have asked for payment details again rather than refusing the application? Can we fight on this point in court?

Also he posted the application within 28 days but he doesn't have any proof it could be that HO entered the application late in their system

Regards

@ilruk84 -
you can request your subject access details using the link.
https://www.gov.uk/government/publicati ... mmigration

I think using this you can find out many details such as certain dates. such as which application you made on which date.

I haven't used it myself, but our gurus of this forum can advice.

Hope all goes well.

All the best.

[zimba]

Hi zimba

Thanks for your reply. I understand what you have said but dont you think HO should have asked for payment details again rather than refusing the application? Can we fight on this point in court?

Also he posted the application within 28 days but he doesn't have any proof it could be that HO entered the application late in their system

Regards

No HO was not obliged to ask for payment details again.
If you bother to read the actual ruling I posted above, you see it is a about the failure to pay the fees

Section 3C of the Immigration Act 1971 extends a person's leave to remain pending determination of an application to vary the period of leave, provided that the application is made before the expiry of the original leave. The principal issue raised by these three appeals is how section 3C applies where an application is made in time, but is procedurally defective for some reason. In two cases (Mr Iqbal and Mr Mirza) the defect related to non-payment of fees;

[ilruk84]

Hi,

Thanks for replies, so what are his options? He has already appealed but are there any other options like can he reapply for entrepreneur visa ?

Regards,
Anwar

[zimba]

He can apply for another visa if he wishes and the appeal goes nowhere.

[ilruk84]

Hi,

Just an update my cousin has appealed and waiting for his hearing date, will update once he had his hearing with outcome.

[Obie]

The rules have since changed to require Home Office to give a person 10 working days to resolve issues wit fee, but in 2010 such rules did not exist.

I don't think the issue was when he posted it, as it is accepted that the application was posted on the claimed date. The issue is whether the fee was paid.

If he claimed he had sent a payment authority and there was sufficient funds in his account, then the burden will be on the Home Office, but if he claims he did not pay the fees, then there is not case for Home Office to answer, as the application was invalid and this had an effect on his leave.

The Home office is saying he cease from having leave in December 2010, was that section 3C or ordinary leave?

[ilruk84]

Thanks Obie for your reply.

Yes he did have sufficient money in his account for the HO fees but again his bank card was forged during the same time as he applied for his visa and bank cancelled his card and by that time he got his new card HO already had send his application back as invalid.

As his visa expired on 30th Nov (he made his application on 26th Nov), I think after his application was returned as invalid he was covered under section 3C