Varied Application from Tier 1 Ent (Extension) to FLR (FP) & Home Office Decision.

[hina_pirzada]

Dear Zimba, Casa & other senior members,
I have varied my tier 1 Extension application to FLR (FP) in June. The reason of variation was my partner is ill and I was struggling to continue the business activities as required. The grounds of FLR (FP) were my daughter she came with me to the UK in 2009 when she was under 2 years old. Since then all my family is living with my sister. We have very strong family ties and all my sister's children are British and born in my daughter presence. So my daughter has strong ties with them and they are all in the same school.
After the variation, HO asked NHS Consultant letter in the relation of my husband health condition. The letter was provided to them on time and he is not able to travel.
I just received the decision and they grant me six months leave to remain on the bases of my husband health circumstances outside the immigration rule with the right to work. Even they didn’t look at full circumstances which were mentioned in covering letter as well as in application form.
I am advised by HO to apply further leave to remain before the end of current leave if I wish to stay further.
I am very surprised with HO decision. I spoke to my solicitor and he says we cannot challenge HO decision.
My question is:
1) my leave will expire in March 2019 and my 10 years long residency will be completed in September 2019. If I submit a new application in March 2019 and I will not get the decision by September 2019 so I can vary my leave to ILR (10 years Long residency). All my stay in the UK is lawful.
2) Also, I am allowed to work full time so If I will submit a new application in time than my section 3C will continue or not?

Kindly let me know.
Thank you in advance for everyone who spares their valuable time on my query.

[zimba]

The answer to both the questions are yes. You must remember that in case of an early refusal before September 2019, your long residence might be affected.

[hina_pirzada]

Dear Zimba, Thank you for the reply. I just want to know for example I got refused before September with the right of appeal so still, I will able to vary my application. Normally the appeal process will take longer. I spoke to my solicitor he says these type cases normally get refuse by HO but still challengable under Article 8 ECHR.

One more thing I don't understand maybe you have knowledge. In my application, I focused my daughter residence in the UK over 8 + years as per paragraph 276ADE(1)(iv).

In Home Office decision letter they said I have not fulfilled all the requirement as per paragraph 276ADE(1) but they are allowing my leave under exceptional circumstances outside the immigration rule. However, the case essence was completely different. The case would normally be considered as per paragraph 276ADE(1)(iv). After the decision, I am under the impression about the Home Office has taken the decision without considering other factors. They only focused on the health situation of my husband.

[zimba]

You are hoping for that but there are no guarantees. Refusal of a human rights application does not always end with an in-country right of appeal. Also getting one does not mean that you get a right of appeal in the UK as the rules on this are quite complex
(see Rights of appeal)

The assumption that the 276ADE(1) applies to your case is also not that straightforward. The word 'reasonable' used in that paragraph makes it extremely difficult to argue. Paragraph 276ADE applies when 'It wouldn’t be reasonable to expect the child/you to leave the UK'
Where the parents have no separate right to remain in the UK under the Immigration Rules the Home Office almost always decides that in fact it is reasonable for the child to accompany his or her parents abroad back to the country of nationality.

See: https://www.freemovement.org.uk/can-chi ... residence/

[hina_pirzada]

Dear Zimba and other senior board members,

I have some queries related to the recent decision by HO for allowing me further leave remain on the basis of exceptional circumstances for 6 months. Kindly read the following content which I summarised.

DECISION:

Thank you for your application for leave to remain in the United Kingdom. Your application for limited leave to remain on the basis of your private life has been considered.
You do not meet all of the immigration rules for a grant of leave under Paragraph 276ADE (1).
Consideration has been given outside the immigration rules and due to your particular circumstances that you husband (name) is having issue in his health, it has been decided to grant you a period of leave outside the rules on an exceptional basis.
What this means to you:
A Biometric Residence Permit (BRP) will be sent to you under separate cover. We have enclosed your BRP with limited leave to remain in the United Kingdom for 6 months in accordance with GEN.1.10
If you have been granted less leave than applied for you may be eligible for the partial refund of an Immigration Health Surcharge payment made in relation to this application.
In order to qualify for the settlement, you must have completed a continuous period of at least 120 months in the United Kingdom with limited leave granted because of your family life.
Providing you continue to meet the relevant legislation at the time of application, you should apply for further leave prior to the expiry of your current leave via a charged application. Subject to meeting that criteria you will be given a further period of leave.
You may need to make further applications and you will need to satisfy the immigration rules to take your leave to the necessary 120 months required for settlement.
Future Applications:
If your circumstance remains the same following the continuous period of lawful leave to remain in the United Kingdom for 10 years and subject to meeting the requirement of the immigration rules at the time you may apply to indefinite leave to remain in the United Kingdom.

My Questions:
1. I don’t understand their means to complete 10 years on the basis of private life? However, I am in the UK since 2009 and all my application were in time application. I was never overstayed.
2. Is this general wording or my continuous law full residency has broken? Because I varied my application form Tier 1 (Ent) Extension to FLR (FP)?
3. In Long Residency rues I did not find anything. The rules simply say that you have lawful leave in any immigration category will count towards 10 years.
4. I have paid IHS £1600 at the time of Tier 1 (ENT) Ext and £2000 at the time of variation. They have refunded me £1600 and taken £400 for the current grant of leave. But £1600 for previous application still not refunded.
5. The application fee for the previous application I was paid £4912 and the varied application fee I paid was £4132. I got refund £4132. Can I get refund excess fee which I paid at the time of previous application which is £780?

I will be grateful to you in advance if you reply my quires.

Thanks

[hina_pirzada]

Anyone on this forum to help my query??

[zimba]

PLEASE DO NOT START NEW TOPICS TIER 1E forum is NOT a suitable forum to discuss your case

You applied under FLR(FP). The form tells you under what conditions you can apply under FLR(FP):

Complete this form only if you are applying for leave to remain in one of the following categories:
• Family life as a partner (10 year route)
• Family life as a parent (5 year & 10 year routes)
• Dependent child of a person who has, or is at the same time applying for, limited leave to enter or
remain in the UK other than under the points based system or UK Ancestry (10 year route)
• Private life in the UK (10 year route)
• Leave outside the Rules on the basis of family or private life

As you can see, private life is one of them which normally requires at least 120 months of lawful residence to be granted (similar to long residence)
You were however simply granted leave outside the immigration rules simply for your exceptional circumstances.
If you think you are owed money, write to UKVI and request a refund.

[hina_pirzada]

Thank you, Zimba for your response and valuable time which you are putting toward board members issues.

At the time of submitting FLR(FP form I tick the box "leave outside the immigration rules".

At the moment I have granted leave to remain until March 2019. My previous application of Tier 1 (ENT) Extension was on time which was submitted in May 2017. I submitted a variation application on 26.06.2018. So the time spent from May 2017 till 26.June.2018 is count as lawful residency?

I am confused about section 3C(4) which states that:

This section explains how a variation application is to be treated while leave is
extended by section 3C of the Immigration Act 1971 (“section 3C leave”).
A variation application can seek to vary the:
• length of time for which the person is permitted to remain in the UK
• the condition attached to the leave
• the purpose for which the person is permitted to remain in the UK

While the person’s leave is extended by section 3C they cannot make a new
application for variation of leave. This is because Section 3C (4) states:
‘A person may not make an application for variation of his leave to enter or remain in
the United Kingdom while that leave is extended by this section.”

However, section 3C (5) does allow the person to amend their existing application at
any time before it is decided by the Secretary of State. The application to amend the
existing application has to be a valid application. Where there is a difference in the
fee between the initial variation application and the amended application any
additional fee must be paid.

Example
The initial variation application is for an extension of PBS leave. Before that
application is decided, the applicant makes an application for leave under the family
route. The family route application will amend the initial application. The higher family
route fee must be paid before the application is valid. The application for an
extension of PBS leave will no longer be considered.

I am confused about 3C(4) and 3C(5) and Section 3(C).

[zimba]

If you applied for your extension before visa expiry and then varied to FLR before any decision, your lawful stay is intact. Remember that by March 2019 you need to have a very good reason to stay in the UK. I suggest to plan accordingly and secure your position before March 2019 to keep the lawful stay intact. This should enable you to apply for long residence in Sep 2019.

[hina_pirzada]

Dear Zimba, Thank you for the response and the suggestion. You are absolutely right I must have good reason to stay further in the UK.

I have only the same route FLR (FP) on the basis of my child who is residing here over 8 years (in April 2019 it will be 9 years). Our varied application was not properly considered by HO under paragraph 276ADE(1) (iv) where we submitted relevant information with regards of my child why it would not reasonable for my child to leave the UK. Which includes my child educational, friends, family, social, emotional ties and also a wider family network. HO didn't look all those things and decided my case on the basis of medical issues of my husband.

When the decision arrived I spoke to my solicitor and asked him to make arguments with HO that why paragraph 276ADE(1)(iv) did not consider. Solicitor advised me that there is no point to take any action against the decision because they have granted me further leave. He said we will make a new application in March 2019 and then wait for HO decision.

I have read most of the cases where the Court approach entirely different as compare to HO in these kinds of cases.

Do you think my solicitor approach is right?

Also, my leave was expired on 25/05/2017 and my solicitor post my case on the same day when It was expiring is there any issue? I received my Biometric Enrollment on 05/06/2017.

was my request to further leave to remain on time?

Thanks

[zimba]

I already posted the relevant information on the paragraph 276ADE(1)(iv) above. That is not an easy route and is not granted in 99% of the cases

Also, my leave was expired on 25/05/2017 and my solicitor post my case on the same day when It was expiring is there any issue? I received my Biometric Enrollment on 05/06/2017.

There should be no issues as the date of application is the date of posting.