Tier 4 Refusal Under 320(11).A very strange case.Please Help

[roquentin]

My application for student visa (tier 4) has been refused under 320(11).I have been in UK from sep-2006 to august-2008.My leave to remain was expired on 1-12-2007 and applied for an extension(at that i couldnt attach my bank statement with that application) so it got rejected as invalid on 21-dec 2007.But the crucial thing is that i couldnt recieve it on time due certain complications in postal procedures.Some one in the house where i used to live might had disappeared the coupen(on purpose coz of some personnel grudges with me etc) that post man leaves in the house in the absence of the reciepent.Eventually it was returned to the home office.

I was contacted by the home office on fone and they took my new address and i was told on the fone that i still had 28 days to apply for the appeal but the fact is that the leave to remain was expired by then.i was an illegal immigrant.But i went for the appeal for the leave to remain.it was late by one month and 12 days i.e 28/02/2008.(i had put a covering letter in my application as well explaining why it got late for me to submit it)

In the last week of the june 2008 they had refused my application to leave to remain on that grounds of lack of sufficient funds for my studies and for submitting a late application for appeal.

But the strange thing is that it again couldnt be recieved by me and returned back to home office which contacted me in the mid of the july and got my new address and i recieved it on the 24th of july 2008 though the refusal was typed on the 24th of june 2008.i still have the parcel with me which i recieved on the 24th of july 2008.i left Uk voluntarilly at my own expense on 14th of august.I did not do any job on my NIN number.I have got the postgraduate from Middlesex University as well.

I have been refused under 320(11) for breaching immigration rules and contrived in significant way to frustrate the intetions of the immigration rule(by overstaying)The ECo admits that i left UK voluntarilly at my own expense.Though i meet all other requirements under tier 4.


In view of all these circumstances please give me some expert advice.should i go for administrative review or for appeal? What is chances of me getting entry clearence again?please Guide me as soon as u read it.I m so disturbed.

[roquentin]

In addition to the above post, if i apply for Canada, australia or USA as student, will my above immigration history of UK and the refusal to entry clearence EFFECT my application to these countries?

[geriatrix]

UKBA can't be blamed for someone (known to you) settling scores with you by stealing the "while you were out" card from your mail box. Similarly, you cannot blame UKBA for changing your address and not informing them at at time when your application was under consideration.

The refusal(s) may influence any applications you to make to travel/live/work to another country as the charge is a serious one.

Consider seeking professional legal advice.


regards

[wf]

Overstaying in itself should not be classed as contriving to frustrate the rules - there must be aggravating circumstances. It sounds like your refusal is not justified on these grounds.

http://www.ukvisas.gov.uk/en/ecg/refusa ... onsofrules

[roquentin]

Overstaying in itself should not be classed as contriving to frustrate the rules - there must be aggravating circumstances. It sounds like your refusal is not justified on these grounds.

http://www.ukvisas.gov.uk/en/ecg/refusa ... onsofrules

wf, thanx for replying.but the problem seems to the page u have suggested to visit is, that it is meant to be only internal guidlines for the ECOs and for informative purpose only and cannot be termed as RULES.For it is mentioned in the start of the page "

"This is internal guidance for use by entry clearance staff on the handling of refusals for visa applications made outside the United Kingdom (UK). It is a live document under constant review and is for information only."

Please correct me if i am wrong.please others share valuable insight as well.

[vinny]

It's instructions on how ECOs should interpret 320(11).

[roquentin]

It's instructions on how ECOs should interpret 320(11).

Vinny thanx for replying.Acyually in my refusal letter the ECO too has quoted the following page;

http://www.ukba.homeoffice.gov.uk/polic ... les/part9/

On this page there is no mention of "aggravating circumstances" in fact it is extremely ambigous to deconstruct.Is it ok to mention and arguing my case on the basis of the following guidelines http://www.ukvisas.gov.uk/en/ecg/refusa ... onsofrules) to ECO?If he has clearly violated the these guidlines, will there be any chance of my Admin review getting succefull?

[vinny]

Unfortunately,

Please note that the list below is not an exhaustive list.

You should explain your circumstances in the AR.

[roquentin]

Unfortunately,

Please note that the list below is not an exhaustive list.

You should explain your circumstances in the AR.

Actually i have mentioned it in great detail in my admin review.And the important point is that there is absolutely no other breaching on my part(even if the alleged overstaying occured).nor does the ECO mention it even in the least bit.

Any chance now?

[asp]

Although you seem to have an overstay of more than 28 days, the fact that you left at your own expense in August 2008 shouldn't engage a visa ban. So you need to deal only with the 320(11) issue.

Did the ECO not explain in his refusal letter what he considered to be the aggravating circumstances in your case? Is he arguing that your claimed difficulties in receiving previous decisions from HO by post was a contrived attempt to frustrate the rules?

[roquentin]

Thanx for replying.This is what ECO has stated on my refusal letter.can u see anything that can be termed as aggravating circumstances according to the immigration rules?

ECO comment:

"You made as intial application on 29/11/07.This application was rejected as invalid.You were given 28 days from this date to submit a valid application;However you submitted a late application on 28/02/08.you therefore did not have leave to remain at the time of your application.Though you left the UK voluntarilly at your own expense on 14/08/08, i am satisfied that you have breached your conditions of stay by overstaying your leave to remain in the UK.



In view of this I am also satisfied that you have previously contrived in a significant way to frustrate the intentions of immigration rules through your actions after your original leave to remain expired and the time it took for you to leave the UK voluntarily at your own expense.I am therefore refusing you entry clearence under paragraph 320(11) of the immigration rules"

[roquentin]

can anyone please reply to my above post?please.

[roquentin]

No body is replying to above post.Isn't that rude guys?

[asmi10]

Have you applied for A R?

[roquentin]

Have you applied for A R?

asmi, thanx for replying.Actually, yes i have already submitted my AR request.I m waiting for the decision.And i have mentioned in it that 320(11) was misapplied by the ECO in my case and i gave them all the clarification about alleged overstaying as well.
Actually apart from the alleged overstaying the ECO didn't mention any "aggravating circumstances" which are necessary to apply 320(11).He hasn't even mentioned the term "aggravating circumstances" in his verdict whereas the rules clearly suggest that there has got be aggravating circumstances.Breaching of the law or immigration rule is not sufficient.

[asmi10]

from which country did u apply entry clearance?

check this link i found.
http://www.ukresident.com/forums/topic/ ... -on-32011/

[roquentin]

from which country did u apply entry clearance?

check this link i found.
http://www.ukresident.com/forums/topic/ ... -on-32011/

asmi, i applied from pakistan.I have visited the link they are discussing my case and i dont even know.I did post my query there as well but in this link they have separatly started the discussion about my case.Thanx for sending.by those comments i have found that my case is really strong.and most interestingly i m getting famous as well.

[asmi10]

Check your Private message.....i have send u a message as well.
when did ur visa get refused under 320(11),this year right ? after changes were made to 320(11) right?
when did u apply for AR?
well i hope u get a positive feedback on ur AR....do let us all know what happens...coz 320(11)

[asmi10]

Check the link below.....this might help u........and see page 31.....they have said that contrived in a significant way to underdetermine the intensions of the rules.this means when there are aggravating reasons and the applicant has previous breached uk rules....

the ablove clearly says there have to be aggravating reasons.....just not previous breaches.


http://docs.google.com/viewer?a=v&q=cac ... eYuwSkkCnw

hope this helps u.

[roquentin]

My entry clearence was refused under 320(11) in october just for the alleged overstaying during my previous saty in the UK and i left the UK voluntarily at my own expense BEFORE 1st october 2010 which makes me exempt from the mendatory refusal.I claimed that overstaying cannot be the only reason to refuse under 320(11) and the rule suggests that there has to be aggravating circumstances as well and in my case there was none, nor did ECO cited any in my refusal letter.

Now i have got the decision of the Administrative review.The original refusal decision is upheld.I m so disturbed.

Please guys guide me what to do next, should i go for fresh application next year? what are the chances of me getting entry clearence again?

And can i go for judicial review from here?

Please guide

[asmi10]

RFL7.3 What are aggravating circumstances?
Please note that the list below is not an exhaustive list. Aggravating circumstances can include actions such as:

absconding;

they have refused u for overstaying and absconding....

because u didnt take the refusal application when it came to ur house and it went back.....they branded you as absconding( ran away)and must have put absconding in the system under your name they havent considered the fact that you later called them up and took ur application.
your only option is to apply for AR again if u have a chance or talk to some one in the embassy and ask for what options u have got....

the correct refusal wordings are
Contrived in a Records held in the UK/You have admitted that you [enter details]. I am significant way to satisfied that this conduct is consistent with that described in Entry frustrate the rules Clearance Guidance Chapter 26.18 (found at link on the right) as having contrived in a significant way to frustrate the intentions of the Immigration
Rules because [enter details]
Your application is therefore one that, according to paragraph 320(11) of
the Immigration Rules, should normally be refused. I have considered the
circumstances of your application [explain what applicant is coming to do,
any claimed HR issues, exceptional circs]. However, on balance I am not
satisfied that your particular circumstances are of a sufficiently compelling
nature to justify my granting your application, having regard to the fact that it should normally be refused.

[roquentin]

asmi ((((they have refused u for overstaying and absconding....

because u didnt take the refusal application when it came to ur house and it went back.....they branded you as absconding( ran away)and must have put absconding in the system under your name they havent considered the fact that you later called them up and took ur application. ))))

Even if they branded me as absconding,were not they supposed to mention it in the refusal formula? For according to the guidlines of the UKBA, the reason for refusal is to be mentioned in the refusal letter whereas in my case no other breaching is mentioned apart from overstaying.Absconding per se is not outside of this so called non-exhausitive list.It could have been mentioned in the decision.isn't it?

[asmi10]

ukba never gives a refused applicant a clear picture of where he/she stands....have they given u IS151A,IS101 or anything of that sort?
when you made an out of time application how long did they take to refuse you that you left on 28/8/08?
i was reading a refusal letter of a student who made an out of time application just like urs but within 10 days after getting refused.that person was not given 28 days grace to make a fresh application. he still made the application ,ukba keep that person's application for 10 months and refused him.his pp was handed to case worker and then that student took his pp at the airport.he wa refused under 322(2) and 322(1A) even thoe he had submitted a letter from lawyer explaining the reason for late application and mentioned each and every detail of his case didnt hide any facts. the refusal letter further mentioned that person doesnt have any appeal rights since he made out of time application.

now even im confused will that person get refused under 320(11) like you have.
his 1s151A says overstayer which was not his fault as his application and passport was with ukba for 10 months and made a out of time application.

I think you need a lawyer urgently.....dont do any papers on ur own this time..
l

[roquentin]

asmi;

Thanx for replying.i am going to get professional assistance of an UK based lawyer.The lawyer is convinced(even before she knew that i would even go for her assistance) that in my case 320(11) has been misapplied.I might go for judicial review from here on.Thanx bro for your kind replies.

Regards