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The Immigration and Nationality (Cost Recovery Fees) Regulations 2007 wrote:Consequences of failing to pay the fee specified for an application
16(1) Subject to paragraph (2), where an application to which regulation 3, 4, 11, 12, 13, 14, 15 or 16 refers is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee.
(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.
(3) The Secretary of State may treat an application referred to in paragraph (2) as withdrawn if, having written to inform the person who made the application that the specified fee has not been provided, that fee is not provided within 28 days of the letter having been posted.
vinny wrote:The Immigration and Nationality (Cost Recovery Fees) Regulations 2007 wrote:Consequences of failing to pay the fee specified for an application
16(1) Subject to paragraph (2), where an application to which regulation 3, 4, 11, 12, 13, 14, 15 or 16 refers is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee.
(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.
(3) The Secretary of State may treat an application referred to in paragraph (2) as withdrawn if, having written to inform the person who made the application that the specified fee has not been provided, that fee is not provided within 28 days of the letter having been posted.
vinny wrote:You posted your (initial) valid application in-time.
They sent you letters requesting payment. You replied to each of their letters within 28 days respectively. They eventually accepted payment and approved your application.
Therefore, they apparently did not consider your application to be withdrawn.
Perhaps you can argue that section 3C remained in force throughout, while the application was under consideration. Hence, there was no gap?
kkmj wrote:Could you pls tell how did you draft your covering letter?
I have a similar situation of payment failure once in my visa application in 2005.
Thanks.
I am very impressed, with the person who wrote this letter, I wish I had seen it much earlier, congrats on receiving your ILR.rogerdoger wrote:kkmj wrote:Could you pls tell how did you draft your covering letter?
I have a similar situation of payment failure once in my visa application in 2005.
Thanks.
Here is the letter, feel free to modify it according to your circumstances.
Case Officer
UK Border Agency
SET (O)
Indefinite Leave to Remain
PO Box 591
Durham
DH1 9FS
22 January 2011
Dear Sir / Madam,
Why the ILR should be granted
I was pleased to receive the SAR file couple of days ago. The SAR was requested in order to help me fill out the application for ILR under long (10 years) residence category. I am satisfied that this application is pretty strong. However, there is a slight concern.
In the SAR file the documents show that during 2005, when an extension to leave to remain was granted in August 2005, a note was made in the Case Record Sheet that ‘application valid but out of time by 41 days’. I suspect that there may be an argument that because the application was out of time, therefore, a gap has occurred in the qualifying period for the ILR for long residence.
I would like to argue that the note made in the case record sheet contains an error of judgment and therefore, the application was not out of time by 41 days hence, the ILR should be granted.
Background
During 2005 my LTR was expiring on 20 May 2005. I posted my application on the same day via next day delivery. Home Office receives application on 21 May 2005. However, as I forgot to sign the cheque accompanying the application, I am given 28 days to resend the application with correct payment.
I manage to send the application back with another cheque that Home Office receives on or around 6 June 2005. But this time, and this is very unfortunate, that my cheque bounces. Subsequently Home Office again gave me 28 days to resend the application with correct payment. This time I send the application with postal orders and I am granted the LTR in August 2005.
Why the application was not out of time
After discovering the above note in the SAR I engaged in extensive research around my case. I have spoken to immigration advisors and lawyers who have advised that my case is pretty strong and a letter of explanation should suffice.
Basis of argument
There are 3 main areas of the argument.
Firstly, the application for an extension in the LTR as a student is categorised as a regulation 4 application. As mentioned in the Immigration and Nationality (Cost Recovery Fee) Regulations 2007.
Source: http://www.legislation.gov.uk/uksi/2007 ... ion/4/made
Secondly, it has been specified in law, what the consequences should be if an applicant does not include the appropriate payment with his application.
It is mentioned in the subsection 2 of regulation 16 of the Immigration and Nationality (Cost Recovery Fee) Regulations 2007 that,
(2) An application referred to in regulation 3 or 4 which is made prior to 21st May 2007 will be treated as having been validly made regardless of whether the fee specified in respect of that application has been paid.
Source: http://www.legislation.gov.uk/uksi/2007 ... on/16/made
Therefore, I have been assured as my application was made before 21st May 2007 it should be considered as having been validly made.
Lastly, if we accept the application was validly made in May 2005 then the period between May 2005 and August 2005 should be covered under Section 3C. As I posted the application before my LTR expired, I responded within 28 days on both occasions when Home Office required me to and subsequently Home Office accepted my application and granted LTR in August 2005. Therefore, Home Office did not consider my application to have been withdrawn and the application on which LTR was granted was not judged to be a fresh application but rather a variation of the original application that was made in May 2005.
In light of above I am hopeful that you would see the strength of this argument and would disregard the note about application being out of time by 41 days altogether when making your decision whether to grant ILR.
Case Precedent
One of the advisors mentioned a case precedent of R (on the application of Teisha Forrester) v SSHD [2008] EWHC 2307 (Admin), decided by Mr Justice Sullivan. Although the case facts differ somewhat but the underlying payment issues are very similar.
I am married and have significant private life ties in the UK after having lived lawfully for more than 10 years. Therefore, I feel it would be disproportionate to reject my application for ILR on the basis of a single out of time application, which is disputed as well on the basis of above arguments.
Good Character
I would like to take this opportunity to mention that I am of a good character. I have never been in trouble with the law or otherwise during my entire stay in the UK. I would be grateful if in view of above you can grant me the ILR.
Thanking you in anticipation.
Yours faithfully,
Roger