BIG TRIP

[William Blake]

Hi guys just need your input on a potential entry clearance application.

Brief background

My application for ILR based on long residence was refused in January of this year. When I physically received the refusal letter it was after my leave had expired. Because the refusal letter was dated prior to leave expiring I was not given any appeal. The grounds given for refusal were two prior late applications and a gap occurring in 1999 i.e. when I left visa expired abroad and I re-entered on fresh leave. Briefly the grounds for reconsideration are it is the date of posting that constitutes the date of the application so there were no late applications and regarding the gap I am applying for discretion and I argue (among other compassionate, human rights, strength of ties to the UK, contribution to economy and society etc.) in particular that before the immigration order 2000 all leave used to lapse when the holder left the common travel area (so back then even if you had an entry clearance for four years and then next week you went for a day trip abroad leave would lapse automatically anyway) and so it is not reasonable to expect me to comply with the requirement of having existing limited leave to remain on departure and return when the law at the time (in 1999) made it impossible for me to do so. I argue that the gap should thus be overlooked. After much discussion with legal counsels we submitted for reconsideration and requested Home Office to provide appeal rights based on human rights. Failing which I am then advised to re-apply, if refused and failing being given an appeal on re-applying then go to judicial review- as all options would then have been exhausted.

My concerns

So in the meantime a company has been working on a work permit application for me. Because I don’t have leave now and because I can’t switch into the work permit visa it is likely that I will have to leave and seek entry clearance form abroad. I am scared that I will not be readmitted into the UK should I leave. While the solicitors are trying to reassure me that the immigration officers will have no legitimate grounds for refusing me entry I fear that the immigration officer will seek an excuse to refuse me because he/she can see that I want to live in the UK. I suspect and fear that he / she will resort to underhanded tactics and absurd excuses to find some ground to stop me. I am also concerned they may try to apply the overstayer ban to me even if there is supposed to be a concession until 1 October. I say this based on my experience and the reported experience of others with the immigration service – others who have been given outrageous reasons to deny them entry to the UK. Like for example I worry I will get an entry clearance officer who thinks Britain is full of foreigners and who will then try to stop me.

I also understand it is possible to apply for discretionary leave to take up the work permit form within the UK. If I have to leave I will be doing so before 1 October 2008 and I will need to travel to Barbados to gain entry from there as this is the nearest diplomatic post to my country of origin. With this information my questions then are:

My questions:
a) What can I do to help ensure I will gain re-entry? Is there anything I should watch out for? Are there any documents (other than the standard required ones) that may help me to gain entry? For example, will the fact that my case is under reconsideration (should it still be under reconsideration when I leave) be a plus. Should I then document this fact and the history of my ILR application? i.e. what can I do to maximise my chances of getting the entry clearance.

b) I feel it may be safer to apply for discretionary y leave from within the UK but I think that the Home Office will be very reluctant to grant this and all that may happen is that they may hold the application for a long time and further hold me up from getting on with my life. If I do take the route of applying for discretionary leave from within the UK what feedback can you give me about the likelihood of succeeding with an in country application for discretionary leave. What reasons are good grounds for seeking discretionary leave from within the UK? What if I can show that the employer has and urgent need for me to start and that my ILR matter is still outstanding? Would that be a good explanation along with maybe the fact that I feel I have sufficiently evidenced my residential status in the UK over the last 11 years and feel I have a right to be here. i.e. what are good grounds for requesting discretionary leave from within the UK ?

[4444]

have yu got a family in the UK or a girlfriend who has a settled status in the UK, if so you might have good grounds on article 8. also did yu get removal directions with yo refusal. if not you can still apply under the 14years rule in 3years time.

[Frontier Mole]

My questions:
a) What can I do to help ensure I will gain re-entry? Is there anything I should watch out for? Are there any documents (other than the standard required ones) that may help me to gain entry? For example, will the fact that my case is under reconsideration (should it still be under reconsideration when I leave) be a plus. Should I then document this fact and the history of my ILR application?

Once you leave the country your application / appeal is considered abandoned so is of no consequence in an out of country application. So if it is not resolved by the time you leave, it will be treated as abandoned as soon as you show up elsewhere in the out of country visa system.

[William Blake]

Ah well that is a big help Frontier as I did not know that. So it may be best then to get the outcome to the reconsideration first before travelling. What about appeals? If I get an appeal and leave the country to seek re-entry is the appeal considered to be abandoned as well?

On the other hand if the reconsideration is still undecided by the time the work permit is approved then won't that be grounds for making an in country discretionary application for the leave to take up the visa. On the basis that I can't leave as the reconsideration is outstanding and I do not want to abandon it. Although waiting for this in country application to be decided may take a long time and come back refused anyway.

If I re-apply for the ILR and while my passport is with HO I apply for discretionary leave to take up the work permit on the basis that my passport is with HO and I can't travel because of this and also the employer needs me urgently. Would this help?

[Frontier Mole]

In country appeal is considered abandoned once you leave the country, this is the general ruling however there are exceptions. An ILR appeal is not one of those exceptions.

If your WP is granted, you would not have to make a claim for discretionary leave because it is giving you the green light to in effect to remain as you are in country.

I appreciate you want to do the best thing for your immigration claim but trying to juggle all the options and scenarios is like playing chess without a board and pieces. It can be done but is bloody hard

You have two very separate issues. Your ILR and the WP. They are not connected in any way as far as a UKBA casewoker would see it. So if the ILR reconsideration fails and your WP suceeds it will not alter the ILR decision.

For your own piece of mind do not interrelat the issues. If your ILR recon is sucessful the WP becomes immaterial. If the ILR recon fails but your WP is granted you will get to stay, which in itself strengthens a future ILR claim.

Only if everything fails then do you start to think about what is the best option thereafter. I think a bigger part of all this is how quick are you going to get the UKBA decisions. It might all boil down to the gamble of do you stay pending ILR recon and perhaps appeal or do you cut and run in late September to apply to enter based on the WP.

Too close to call at this stage.

[William Blake]

Frontier mole you seem to have a good understanding of the situation and what I am trying to do. I thank you for taking the time to write your advice for me. I am confused though about what you mean by this?

If your WP is granted, you would not have to make a claim for discretionary leave because it is giving you the green light to in effect to remain as you are in country. ...

For your own piece of mind do not interrelat the issues. If your ILR recon is sucessful the WP becomes immaterial. If the ILR recon fails but your WP is granted you will get to stay, which in itself strengthens a future ILR claim.

How is this possible? I will need the visa that accompanies the work permit right? I was told that in order to get that visa I would need to apply for it - obviously - but the way you apply is either by leaving and re-entering through entry clearance; in fact I was told this is what the rules require or failing that if for some reason the applicant can't return and apply for entry clearance he / she would need to apply for discretionary leave from within country. So if the work permit application is succesful and the ILR is refused I still need to get the right visa. Isn't that the case?

[Frontier Mole]

It is a bit like what came first the chicken or the egg?

WP's get granted in country on a fairly regular basis. The fact that you are in country kind of kills the next stap of applying for a visa to enter. Do you see where I am coming from. Hence what happens with in country WP is that your whole immigration status and WP are thrown together in effect. They would not grant an in country WP if they do not want you to remain in the UK.

The next question is what would they put in your passport if they grant the WP? That I do not know. There must be other out there that have had this set of circumstances?

I am guessing a FLR stamp?

[William Blake]

Well the work permit people are separate to the visa people. The work permit folks look at whether this application / skill set warrants a work permit and simultaneously or shortly after work permit approval a separate application must be made to the visa folks for leave to remain on the work permit. As I understand it as a general rule if the applicant is not in a category that allows him to switch to a work permit from within the UK (which I don't think I am ) the applicant will be expected to leave and seek entry clearance from country of origin to take up the work permit. Otherwise if for some reason one cannot do this, one has to apply for discretionary leave to remain in the UK on the work permit.

Do you know where it says that appeal and reconsideration is considered abandoned once the applicant leaves the UK? It would be good to have something to which I can point. This may be useful if I do need to ask for discretionary leave from within the UK.

I am thinking a possible way forward is to keep working on the ILR application (recon, appeal, JR etc.) then while the work permit application goes in concurrently apply for discretionary leave to remain on the basis recon pending, appeal, JR pending; do not want to forfeit these rights by leaving, employer needs me urgently (get employer letter etc.) then hopefully by time the work permit comes back say three weeks later I will also have an outcome to the application for discretionary leave (hopefully shortly after) that way I won't lose much time. If discretionary leave is refused I don't know what to do then. I may get an appeal but I can't leave if I am going to forfeit my legal options.

[PaperPusher]

They would not grant an in country WP if they do not want you to remain in the UK.

They would.

[Frontier Mole]

WB -

Paperpusher is correct - my appologies. WP's handed out like sweets, if you qualify on the set criteria you get WP regardless of of your immigration status - even in country!
I thought I had read that the new UKBA set up brought everything together.

As for the other point Para 104 NIA 2002 Act sets out abandoned part.

104 Pending appeal

(1) An appeal under section 82(1) is pending during the period—
(a) beginning when it is instituted, and
(b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99).
(2) An appeal under section 82(1) is not finally determined for the purposes of subsection (1)(b) while a further appeal or an application under section 101(2)—
(a) has been instituted and is not yet finally determined, withdrawn or abandoned, or
(b) may be brought (ignoring the possibility of an appeal out of time with permission).
(3) The remittal of an appeal to an adjudicator under section 102(1)(c) is not a final determination for the purposes of subsection (2) above.
(4) An appeal under section 82(1) shall be treated as abandoned if the appellant—
(a) is granted leave to enter or remain in the United Kingdom, or
(b) leaves the United Kingdom.
(5) An appeal under section 82(2)(a), (c), (d), (e) or (f) shall be treated as finally determined if a deportation order is made against the appellant.

[William Blake]

No Problem Frontier. You can't be right all the time . I appreciate you are trying to help.


So I guess that info about Para 104 NIA 2002 Act apply to reconsideration as well. ie. as you stated reconsideration will be abandoned if I leave before an outcome to the reconsideration.

On the work permit form

http://www.ukba.homeoffice.gov.uk/sitec ... ercial/wp1

it asks the applicant to state where the candidate currently resides - section 7 and whether the applicant will be seeking entry clearance. Can a work permit that is issued in country be valid for presentation at an overseas diplomatic post? What I mean is if we were to apply for the work permit under the assumption that I will seek discretionary leave from within the UK and we do not get the leave granted can this same work permit be presented at an overseas diplomatic post should I then have to leave and re-enter or would the employer then need to get another work permit - one valid for presentation at an overseas diplomatic post ?

Yet in other words if I apply for discretionary leave from within the UK and it is not granted can I leave and then present the same work permit abroad?

Opinions welcomed.

Also anyone please give me an idea as to what sort of chances an in country discretionary leave application may have. And what are good grounds? Thanks