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Thanks, but can you expand in any way on your answers.sushdmehta wrote:1. Only from country of citizenship or country of residence (long-term, not a visitor resident).
2. No.
regards
Yes, point taken re. studying is not a path to permanent residency. However, my friend came to the UK when he was a teenager, as his mother came to study for a PhD, so through no choice of his own, and initially was studying for GCSEs. Since he has spent a large proportion of his formative years here and has friends here, he now feels the UK to be his home, although he is aware that being a student doesn't give him the right to apply for ILR. However, since he has completed 9 years here, if he was to complete his NVQ Level 3 he would be entitled to make an application based on long residence.Wanderer wrote:Being a student here is not a path to permanent residency so establishing a life here is not an issue.
Has this person been here solely on student visas for 8 years? If only at NVQ level now what has this person been studying before? Is the intent to apply for ILR under the 10 year rule?
I've read through the rules and see nothing which states "Section 3C protection does not apply if your application was rejected simply because you did not meet the requirements through your own ignorance". Please point me to the relevant link.Wanderer wrote:Anyway, ignorance of the PBS rules is no excuse, so ur friend is undoubtably without status, so no Section 3c protection, so they'd have to apply from their home country or anywhere they have residency, ie not a visitor.
I think you misunderstood my use of the term "established presence". I was not referring to my friend establishing a private life in the UK, but to the following:Wanderer wrote:Being a student here is not a path to permanent residency so establishing a life here is not an issue.
Unfortunately,trf0412 wrote:Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist.
trf0412 wrote:The UKBA have granted him discretionary leave to remain until 31st August.
Exactly! This is the crux of the issue.vinny wrote:Unfortunately,trf0412 wrote:Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist.trf0412 wrote:The UKBA have granted him discretionary leave to remain until 31st August.
Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist; or
- discretionary leave for whatever reason.
Yes, good point. However, this is not really the purpose of my post. My friend appealed his refusal and, in spite of his ignorance of the rules at the time of making his application, the judge referred his case back to the Home Office for consideration based on many other factors. So, his ignorance, however wrong it was, is no longer a case in point.Wanderer wrote:Fundamental tenet of English Law: Ignorance of the Law is no excuse.
For example, I am returning to UK after several years and answer my mobile phone while driving - I didn't know it was illegal now, should I be let off?
Maybe I should cos I didn't know the new law. But what if I did - and deliberately used my mobile while driving cos I knew I could say 'Well I didn't know the new law!' and get let off.
Same for your friend, what if he knew he wouldn't qualify under the new PBS rules and applied with the old form on purpose and claim 'Well I didn't know!" and get let off and get the visa.
Doesn't work - the law needs to be upheld and we all have a duty to abide by it, we don't know people's motives, so we have to have this defence.
Clearly explained in the policy guidance.trf0412 wrote:2) On what basis do you state that he cannot argue that he has an established presence? Surely the restrictions of his previous leave to remain are carried over to his discretionary leave, as he has not been told otherwise. If this is the case, then his status as a student would still hold and he could therefore be classed as having an established presence. However, if you understand this better, please explain.
And as per you own admission, the most recent leave granted to your friend in July 2010 is "discretionary leave outside the immigration rules" and not a Tier 4 (student) leave to remain.Tier 4 (Student) policy guidance wrote:127. A student (including Post-graduate Doctors and Sabbatical Officers) has an established presence studying in the United Kingdom if he/she was last given permission to stay under Tier 4, as a student, or as a Post-graduate Doctor or Dentist and he/she:
• has completed a single course of at least six months during his/her last grant of leave; or
• is currently studying a single course, of which he/she has completed at least six months; or
• is currently studying and has completed a single course of at least six months during his/her current permission to stay.
and
• his/her last grant of leave ended no more than four months before his/her Tier 4 application was made; or
• he/she is currently following a course of study.
A student cannot amalgamate two or more courses to make up the six months study.
So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?vinny wrote:245ZX(b) does not include discretionary leave.
And in which case the ILR lock is reset?trf0412 wrote:So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?vinny wrote:245ZX(b) does not include discretionary leave.
I was quoting from http://www.ukba.homeoffice.gov.uk/study ... how-much/#.sushdmehta wrote:trf0412, are you quoting from an obsolete policy document? Or am I missing something here?
regards
What do you mean by this? The continuous residence requirement? As long as he leaves the UK while he has valid leave (in this case his discretionary leave) and gets valid leave to re-enter, he won't have broken his continuous residence, would he?Wanderer wrote:And in which case the ILR lock is reset?trf0412 wrote:So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?vinny wrote:245ZX(b) does not include discretionary leave.
If sections 3C/3D were applicable until the grant of discretionary leave, then he may still have lawful continuous residence.Wanderer wrote:And in which case the ILR lock is reset?trf0412 wrote:So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?vinny wrote:245ZX(b) does not include discretionary leave.
Although DL is outside the immigration rules, isn't it still lawful?sushdmehta wrote:Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?
I believe so.trf0412 wrote:So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?vinny wrote:245ZX(b) does not include discretionary leave.
Not as far as I could ascertain from reading through the rules. With his current DL he isn't an overstayer and has never been here illegally and DL isn't listed as being a factor which breaks continuous lawful residence, as it itself is lawful residence.sushdmehta wrote:Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?
It appears, then, that the only reason he can't claim an established presence is because he's switched from being a "student" to being "a person with DL"?sushdmehta wrote:trf0412, that's fine .. as long as you are looking at the up-to-date information! Either way, hope you understand why established presence cannot be claimed in your friend's case.
regards
Grey area for me! But my understanding (personal) is that lawful in this context essentially means "lawful from the perspective of and/or as assessed within the scope of immigration rules" and leave "outside of immigration rules" blurs the context of how the term lawful can/may be applied.vinny wrote:Although DL is outside the immigration rules, isn't it still lawful?sushdmehta wrote:Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?