lolwe wrote: ↑Wed Nov 11, 2020 2:22 pm
Mecry2020 wrote: ↑Wed Nov 11, 2020 10:17 am
lolwe wrote: ↑Wed Nov 11, 2020 9:49 am
Mecry2020 wrote: ↑Wed Nov 11, 2020 9:18 am
@lowe, Thanks for your suggestions, how can one apply for leave outside the rules? will the letter be sent with the EUSS application or what. Do you have a draft of the letter or what the contents will be.
Thanks.
Hi Mecry2020,
You can send in the letter anytime. A good time may be when you apply for Administrative Review. You can also apply when you send in a new application for settlement under the EU settlement scheme.
If you apply for LTR again, you can ask them to give you indefinite leave to remain immediately as part of a LOTR request.
You can also apply using form Set(O). You can pay extra to apply for same day service. This option is expensive and does not have a right of appeal.
Have you been in the UK legally for 10 years? How much longer do you have under Appendix FM?
When you write the letter, think of the judge. The Home Office may refuse your request for LOTR. What can you say to the judge about your particular situation? You want the judge to agree that you should be granted settlement now, instead of in the future.
The applicant must describe and provide evidence of the factors that warrant a period of LOTR. The applicant should set out the period of leave required or requested in their application. Applicants seeking ILR outside the Immigration Rules should provide details as to why they should be granted ILR rather than limited leave. Every case will be considered on its merits taking into account the individual facts of the case. Applicants seeking LOTR must provide documentary evidence to support their claim.
The Home Office must take into account the circumstances of each case and the impact on children, or on those with children, in the UK (See Section 55 of the Borders, Citizenship and Immigration Act 2009).
SET(O)
Apply using Set(O) - No breach of ECHR Article 8
https://visas-immigration.service.gov.uk/product/set-o
If an applicant in the UK wishes to be considered for a grant of indefinite leave to remain (ILR) outside the Immigration Rules, they should apply on form SET(O) and pay the relevant fees and charges. The refused applicant will not have a right of appeal against the decision or an administrative review of the decision. Compelling compassionate factors are, broadly speaking, exceptional circumstances which mean that a refusal of entry clearance or leave to remain would result in u
njustifiably harsh consequences for the applicant or their family, but which do not render refusal a breach of ECHR Article 8, refugee convention or obligations.
What the Home Office will say if they refuse your request for LOTR:
- You have not raised any such exceptional circumstances, so it has been decided that your application does not fall for a grant of leave outside the rules.
- In support of your claim you state [insert details of circumstances raised]. You have submitted [insert details of any evidence submitted]. The circumstances are not considered exceptional...
Guidance
This guidance tells UK Visas and Immigration when it may be appropriate to exercise discretion to grant leave outside the Immigration Rules (LOTR) on the basis of compelling compassionate grounds (other than family and private life, medical, asylum or protection grounds).
https://www.gov.uk/government/publicati ... tion-rules
Thanks @lolwe
I have been on Appendix FM for 7years now and indefinite leave will be too expensive for me. I am waiting for appeal decision on DRF1 and wanting to renew my passport to re-apply for EUSS because I missed AR for my first application. I will includes this argument if I need to appeal EUSS.
Thanks, this makes sense to me now.
I am encouraged with the good news on this platform and will share mine soon.
Cost is not a good argument for LOTR. The judge will tell you to apply for a fee waiver.
Maybe I am missing something? DRF1 will only give you papers that confirm your freedom of movement rights. Freedom of movement expires on 31 December 2020.
I think you can still try for AR even if you missed the deadline, if you have good reasons. The problem is that if you have limited leave to remain under Appendix FM, they will probably still refuse the application.
The Home Secretary has a "residual discretion" under the Immigration Act 1971. “Residual discretion” does not mean that Home Office civil servants can grant leave outside the Rules in any case that takes their fancy.
Just to try and help, I have quickly written this letter to get you started. I would really hire an immigration solicitor for the letter, if possible. Only use this letter if you are desperate.
....
Dear Secretary of State for the Home Department,
RE: JANE DOE, DOB 1 January 1960,
I write in response to your recent refusal to my application for settlement as a Zambrano carer. In particular, I write to request indefinite leave to remain outside the rules.
BACKGROUND
I entered the UK on a visitor's visa on the 1st of January 2010.
My son, Charles Doe, was born on 1 January 2011.
My relationship with my partner ended on 1st January 2012.
The Home Office granted me limited leave to remain as the parent of a British citizen on 1 January 2013.
My application for limited leave to remain was extend twice in June 2016 and January 2019, respectfully.
My current limited leave to remain as the parent of a British citizen child under Appendix FM expires on 1 January 2022 - six months after the deadline for applying for settlement under Appendix EU.
Although a refusal of my request for leave outside the rules would not be in breach of your obligations under ECHR Article 8, Article 3, refugee convention or otherwise, a refusal would result in unjustifiably harsh consequences for me and my family. These consequences fall broadly into three categories: fairness, the best interests of my British child, and statements made by the Home Office regarding applications made under the EU settlement scheme.
FAIRNESS
- I fulfil all of the requirements under Appendix EU for Zambrano carers, apart from the requirement that I not have limited leave to remain under another part of the Rules
- I meet the requirements to be granted derivative residence as a Zambrano carer under Regulation 16(1) paragraph 5 of the EEA Regulations 2016
- The EEA Regulations do not exclude Zambrano carers who have limited leave to remain
- A Zambrano carer who did not apply for leave to remain would only have to wait five years. I have already waited seven years.
- If my leave to remain had expired before June 2020, I would have succeeded in your EU settlement application
BEST INTERESTS OF THE CHILD
Per Section 55 of the Borders, Citizenship and Immigration Act 2009, any function of the Secretary of State in relation to immigration, asylum or nationality must be discharged having regard to the need to
safeguard and promote the welfare of children who are in the United Kingdom. Accordingly, any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be in accordance with the law.
Discuss the benefits to Charles Doe in terms of
- current living expenses and accommodation
- ensuring equality of opportunity
- reference letters from the school, GP, pastor, imam, etc
STATEMENTS MADE BY THE HOME OFFICE
The Home Office has stated publicly to media
- all options will be exhausted before refusing someone’s application for settlement
- they “are always looking to grant status”
- their caseworkers work with applicants and will exercise discretion in their favour where appropriate
- “it’s important to remember that refusals make up only a tiny proportion of concluded applications”