ILR review, knowing my rights

[paulp]

Question to paulp, if the review is negative and I do not have any existing leave, how can I put in a fresh application ? This is quite a daunting process of time and money wasting just because my case worker was not "in the mood " on the day, so to speak. I am aware that there are worse situation than mine.
Thanks

Do not allow your leave to run out, you will lose all chances for ILR. Reviews are often done at the request of MPs but do not read to much into it.

Make an application for a further student visa or ILR, depending on what your immigration consultant advises you.

Also, do realise when the caseworker needs to exercise his discretion, it's exactly that, his discretion. You are virtually at his mercy. There is no guarantee that he will give you ILR, otherwise it would have been in the IDIs/instructions.

[ukstay]

Thanks paulp, I will give it a good think. Am I right that when I put in a fresh application , the review will be canceled automatically ?

[paulp]

Thanks paulp, I will give it a good think. Am I right that when I put in a fresh application , the review will be canceled automatically ?

I'm not sure whether they can run concurrently. In your case, I would advise contacting one of the immigration consultants on the board or an OISC registered consultant, and ask for a honest appraisal of your chances for ILR before proceeding any further.

[ukstay]

Ok thanks guys.

[ukstay]

Ok guys, I reapplied and got my ILR approved sent back this morning. Thank you all so much for your advices earlier.

[paulp]

Congratulations! Hope you're planning ahead for naturalisation with regards to your absences.

[pieface]

Ok guys, I reapplied and got my ILR approved sent back this morning. Thank you all so much for your advices earlier.

Hi ukstay. So how did things pan out? Did you just make a new application or try for a review?

[ukstay]

paulp, thank you! You have been great with your unbiased answers and clarity. I don't have lots of absences last five years but for now will have to get on with my works (had been hugely delayed due to not having the passport for traveling over last 8 months) first before thinking of any kind of application. Will look into it soon.

pieface: I got the review turned down shortly after my posts here. I had put in fresh application with brilliant professional help on 27th February and got the passport today.

Good luck to everyone else.

[William Blake]

I was hoping to get an answer to the questions posed at the outset:

1) Do reconsideration / review refusals attract appeal rights?

2) Do fresh applications made after leave has expired (overstayer) attract appeal rights if refused?

[ukstay]

William Blake

As far as I understand (within my case)

1)Reconsideration/review refusals do not give you appeal rights but you can consider judicial reviews (which would cost a lot and given that one has enough time on current leave)

2)My application made before my previous leave expired so I would have had given rights to appeal. Not sure about after leave expires (overstayer)

Shall leave the answers for the experts on this forum.

[coolgeeser]

pieface: I got the review turned down shortly after my posts here. I had put in fresh application with brilliant professional help on 27th February and got the passport today.




Ukstay could you let us know who did you get professional help from? Thanks

[William Blake]

William Blake

As far as I understand (within my case)

1)Reconsideration/review refusals do not give you appeal rights but you can consider judicial reviews (which would cost a lot and given that one has enough time on current leave)

2)My application made before my previous leave expired so I would have had given rights to appeal. Not sure about after leave expires (overstayer)

Shall leave the answers for the experts on this forum.

Second point; I think one who is an overstayer could still apply. Cf. how 14 yr illegal category is handled. The applicant will not have leave. With 10yr long residence ILR the requirement is to have had 10 yrs. There isn't anything I can find that says one must have leave at the time of applying after having accrued the ten years.

[William Blake]

The point I was asking about review attracting appeal rights is this. I have been informed that some solicitors write to HO ask for review and a grant of leave not forthcoming ask that HO give them a right to appeal in AIT.

I know of instances where this has occurred and apparently BIA has power to give such an appeal but it is really confusing as I know in one other case atleast where ILR was refused on review; appeal was given subsequent and consequent to this selfsame review but the AIT judge declared the appeal invalid as the 'rules' did not allow for it, as the applicant had leave at time of original application. I just wondered what is the position on such occurrences.

I know one does not get appeal if leave is exisitng at the time of refusal but if BIA grants an appeal, after a review has been made; firstly can BIA do this legitimately and secondly can the judge disallow such an appeal.

[William Blake]

Under the Nationality Immigration and Asylum Act 2002, s. 81(1) (as amended), "Where an immigration decision is made in respect of a person he may appeal to an Immigration Judge".

An "Immigration Decision" is defined in the Act under s.82(2):

In this Part "immigration decision" means-

(a) refusal of leave to enter the United Kingdom,

(b) refusal of entry clearance,

(c) refusal of a certificate of entitlement under section 10 of this Act,

(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,

(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain,

(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,

(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),

[amended by the Immigration, Asylum and Nationality Act 2006]

(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),

(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),

[inserted by the Immigration, Asylum and Nationality Act 2006]

(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),

(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (c. 77) (seamen and aircrews),

[inserted by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004]

(ib) a decision to make an order under section 2A of that Act (deprivation of right of abode),

[inserted by the Immigration, Asylum and Nationality Act 2006]

(j) a decision to make a deportation order under section 5(1) of that Act, and

(k) refusal to revoke a deportation order under section 5(2) of that Act.


Under the same Act, s.84, an appeal can be made on certain grounds:

(1) An appeal under [02-82] section 82(1) against an immigration decision must be brought on one or more of the following grounds-

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful by virtue of section 19B of the Race Relations Act 1976 (c. 74) (discrimination by public authorities);

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.


So if you have leave you won't be given an appeal but what if you feel the decision violates your human rights? Could one ask for a review and failing a positive outcome ask BIA to grant human rights appeal? Does anyone know?

[paulp]

With 10yr long residence ILR the requirement is to have had 10 yrs. There isn't anything I can find that says one must have leave at the time of applying after having accrued the ten years.

William Blake, the 10 ILR is for 10 years of legal residence counting back from the day you applied. If on the application day, you don't have leave, you don't have 10 years of legal residence.

Once the application is made "in-time", Section 3C protection extends the leave of the applicant till the decision of the home office.

[William Blake]

I am not so sure. You specify on the form when you are counting your ten years from until such and such a date. I don't think it has to go up to the date up applied. For example, one could meet ten years last week and then have a gap this week and then still apply provided the ten yrs precedes the gap. The issue is whether you have ten years lawful continuous residence for the period you specify. Cf. 14 yr rule.

So unless you can back up what you are saying my inclination is that if say you reached ten years last week and your visa lapsed / expired this week you can still apply provided the ten years precedes the lapsing.

I see nothing that could stop this from going ahead.

[William Blake]

Furthermore some folks have visas that take them beyond the ten years and they then may apply sometime after reaching the ten years.

[William Blake]

Ukstay,
If I understand you correctly, you have been on a student visa for 10 years.
If that is the case you have no grounds to even apply for ILR, as been on a student visa does'nt count towards ILR.
Your only route into the UK will be to return to your country of orign and apply for some form of visa either based on your qualifications or a job offer from a company in the UK, who may or may not wishes to sponors you.

Some words are better unuttered

[William Blake]

Question to paulp, if the review is negative and I do not have any existing leave, how can I put in a fresh application ? This is quite a daunting process of time and money wasting just because my case worker was not "in the mood " on the day, so to speak. I am aware that there are worse situation than mine.
Thanks

Do not allow your leave to run out, you will lose all chances for ILR. Reviews are often done at the request of MPs but do not read to much into it.

Make an application for a further student visa or ILR, depending on what your immigration consultant advises you.

Also, do realise when the caseworker needs to exercise his discretion, it's exactly that, his discretion. You are virtually at his mercy. There is no guarantee that he will give you ILR, otherwise it would have been in the IDIs/instructions.

I don't agree with what you have written here either. It is not a matter of caseworkers mercy or fancy. Don't let anyone convince you of this. Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives. They must apply reason and judgement and not just ignore your request for discretion. You can always call upon them to defend / justify the decision and the way it was reached.

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another. [Lord Greene MR]

[ukstay]

coolgeeser I PM you about the firm since am not sure it's appropriate to name it here.

[syeda]

hi everyone

I want to know is anyone review for reconsideration (ILR) was successful . i want to know in detail about reconsideration . can homeoffice reverse their decision after refusing is this possible .

[paulp]

I am not so sure. You specify on the form when you are counting your ten years from until such and such a date. I don't think it has to go up to the date up applied. For example, one could meet ten years last week and then have a gap this week and then still apply provided the ten yrs precedes the gap. The issue is whether you have ten years lawful continuous residence for the period you specify. Cf. 14 yr rule.

So unless you can back up what you are saying my inclination is that if say you reached ten years last week and your visa lapsed / expired this week you can still apply provided the ten years precedes the lapsing.

I see nothing that could stop this from going ahead.

William Blake, where are you getting your information. Please check the guidance for SET(O), more specifically:

"5 WHEN TO APPLY
You and any dependants included in your application
must apply before the end of your/their permitted stay
in the UK."

Please do show me where on the form "You specify on the form when you are counting your ten years from until such and such a date"?

If you think it's ok to overstay after the end of your ten years and then apply for ILR, be my guest.

[paulp]

I don't agree with what you have written here either. It is not a matter of caseworkers mercy or fancy. Don't let anyone convince you of this. Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives. They must apply reason and judgement and not just ignore your request for discretion. You can always call upon them to defend / justify the decision and the way it was reached.

You can argue all you want, but if in your instance, the caseworker is not prepared to use his discretion, he won't.

[dungtien100]

Could someone pls give me help on my ILR case:

- Been here since 1st Sept 1999.

- Continuous student visas, no gaps.

- I've however been outside of UK more than 18 months (22 in total) but no more than 4 months at any1 time. I am wondering if, as some posts from this forum have indicated that time could be deducted under certain circumstances, time spent outside for summer internships could be deducted? I've spent around 6 months in totals for my summer work experiences with recognised organizations and with proper reference proofs.

- Would i have a better chance if I apply at PEO or via postal?

Many thanks for your kind answer in advance.