ilr - 10 years - reapplyng while on C5

[Coolguy5555]

Hi,
I am a great admirer of this great web and the contributors, thanks you All for the contributions beforehand for my problem.

The problem:
My Tier 4 student Visa has been refused because the CAS did not include the English language requirement and on general ground as I started my new course not with a highly trusted sponsor - before my Visa was approved (although after my visa expired , I.e. I finished my leave and applied).

My question is:
I logged an appeal with the Tribunal mainly on Human Rights ground, however I am considering to withdraw that appeal few days before the hearing to submit ILR on the basis of 10 years.

A) my own records shows that I have been here for over ten years. But the home office records (I am still waiting for my SAR), but the Home Office records are likely to show that I have been in the UK for 9 years and eight months at the date I submitted the application of ILR while I am under section 3C.

Will I have a right of appeal?? Considering that I submitted the new application while I am waiting for my Tier 4 appeal (section 3C)???


B) can the home office reject my application as out of time (as section 3C), does it seem clear to me??


c) will I be able to appeal against the Home Office decision of the ILR which was logged while I am under section 3C??


And then, can I submit a new application as I will have covered the 4 months that the Home Office might claim I was short of (I.e. I will complete the 4 months while I am waiting for my own 10 years ILR and then if I get refused god forbid I would submit application were I will have 10 years ).

Your replies are very much appreciated
Thanks - Mo

[vinny]

2.3.6

[Coolguy5555]

Hi vinny, Thank you for your reply.

would i have a right of appeal if the ilr get refused as im logging the application while i am on section 3C?? and then would i be able to reapply before the second appeal is logged (just as i did with the first one, but at that time i would have covered 10 years mainly through waiting for a decision on my ilr)....??


The problem: the Home Office does not!!!!!! have records of me for application i made on entry to the country (under the old rules students visas used to be given on the spot on entry to the UK, however i have copy of these visas and the immigrations officers). only one of the entry is missing which was the first ever entry to the UK when i came on a coach through Northern Ireland.

Therefore, the arguments for me will be that the home office do not have entry of me in London (police certificate shows i did enter), so why they should have the entry of Northern Ireland though which is missing on my own file).

Thank you very much Vinny, i always read your excellent posts and we all appreciates your contributions very much indeed

[vinny]

Do read the section in the long residence link above.

You have the right of appeal under section 82(d) if you had made a valid application in time and have no leave remaining after a refusal. You would then be subject to section 3C.

[Coolguy5555]

Vinny you are better than a thousand advisors and I really mean it…. I do qualify for Legal Aid, but today I abandoned them as they have not got a clue (I went to a major centre where just 2 advisors know and the 20 others just make it up…)

Just through reading your posts I know much more than all of them (they dnt know your stuff)….

For all the readers trust me very few advisors know their stuff…. This web is THE best …. I just waste my time waiting for their “advise “ …

[Coolguy5555]

Dear Vinny, thank you very much for your reply.

I am making a fresh application- ILR 10 years, while I am under section 3C ( I am waiting for the appeal for refusing my Tire 4 Visa, however I am going to withdraw the appeal and submit the ILR 10 years).

My question is:
Is logging the application (ILR 10 Years) while I am under section 3C is strong enough, or can the Home Office can say that I had no valid leave while making the new application as my Visa already ran out and I also will be withdrawing the appeal of Tier 4 few days after I submit the ILR application?

[fasyelectronic]

hi

doesnt vinny means that in case u have been rejected and are appealing u cannot make a fresh application??
it will be great if vinny can explain it in laymans term...

cheers

[Coolguy5555]

hi there, but i already been rejected... but instead of going to the appeal i am submitting a fresh application and withdrawing the appeal...

[fasyelectronic]

but as far as i can deduce if u have been rejected and u have been given a right of appeal u cannot apply again until ur appeal has been decided ........
i hope vinny or sum other seniors can shed some light on this conclusion

cheers

[Coolguy5555]

I am seeking UK BA acceptance to withdrawing the appeal.. in order to submit my fresh appliction...

[fasyelectronic]

goodluck , where are the seniors when u need their help

[vinny]

Any fresh application (if it's possible?) must be perfect or you face refusal with no appeal rights. You may want to seek professional assistance to prepare and represent your application.

[xyz123]

A) my own records shows that I have been here for over ten years. But the home office records (I am still waiting for my SAR), but the Home Office records are likely to show that I have been in the UK for 9 years and eight months at the date I submitted the application of ILR while I am under section 3C.

how is that possible?

[Coolguy5555]

Hi Vinny, thank you for your reply.

1)Is submitting m fresh application while under section 3C, considered a lawful stay?

2) If the application get refused, and I have no right of appeal. Can I submit another fresh application then?????

I would complete the 10 years certainly by then, mainly through waiting for the Home Office decision.

I.e. will I be able to submit another fresh application and rely on completing the 10 years mainly while I was waiting for my first ILR-10 years to be decided and that first application was submitted while I am under Section 3C (though the appeal hearing was cancelled and my request).

[Coolguy5555]

Hi Vinny, thank you for your reply.

My only concern is if the Home Office can argue (or will argue) that the leave that I had under section 3C (while I submitted my first ILR) was not a strong enough leave (I.e. the first ILR was in fact an out of time application)???

[vinny]

As I understand it, you cannot make a fresh application while under section 3C.

[vinny]

The applicant completes 10 years continuous lawful residence or 14 years continuous residence while awaiting a decision of an appeal

A person may complete 10 years continuous lawful residence or 14 years continuous residence whilst they are awaiting the outcome of an appeal and submit an application on this basis. Under sections 3C and 3D it is not possible to submit a new application while an appeal is outstanding however it is open to the applicant to submit further grounds to be considered at appeal...

[Coolguy5555]

Thank you Vinny for your reply,
Actually I am withdrawing the appeal couple of days after submiting my fresh application (so section 3C would stop two days later????….)

Do I need to withdraw the appeal on the same day of submitting my new (fresh) application?? Or I should withdraw it after I receive a postal delivery report from Royal Mail or a confirmation (acknowledgement) from the Home Office of receiving an application??

Is there a right procedures for that….?

[vinny]

Would submitting further grounds to be considered at appeal be better or worst than withdrawing the appeal and making a fresh application?

[Coolguy5555]

Hi Vinny, Thank you very much for you precious advice. It took me some time to read some of the cases, but it seems, im better of with a new application.

when i submitted my tire-4 application in Oct/10, i had evidence (i.e. visa stamps for 9 and half years).   in Oct / 10 i should have been sponsored by a university however they let me down in the last minute and i had to find any college to sponsor me (i found one which was not highly trusted, so i should not have started the course without the prior permission from UKBA and without having English test. I could have submit my Tier 4 application successfully if i was sponsored by UEL though as these required dont apply for Highly Trusted Sponsor).

Therefore in may this year (may/2011), i would complete the ten years  (9.5 years Visa evidence and half year or more Section 3c leave and new application for ILR 10 years).  
I dont wish to go to the appeal as i am not a VISA national, and it is clear from the refusal letter that UKBA are not aware that i have been in the UK for nearly 10 years as they referring to me as i  first entered the UK in 2008 (it is when i stopped making applications from the airport on arrival as the law then changed for long courses for non visa nationals) . i.e. i have NEVER!!!!!!  submitted any visa applications to the Home Office before 2008.  i obtained VISAs for so many years simply by turning up at the airport (No application forms needed!!  no bank statements !! nothing .....!!!) and asking the officer to let me in to for a course most of the letters i showed the immigration officer at the port where for more than a year).

So I don’t wish to go to the appeal, as the home office are not fully aware about my immigration history to the UK (I have establish privet and family life, and other human rights articles that I want to rely upon). As the matter is very complicated, It wont give me justice if just 3 hours or 6 hours (I.e. I was told most hearing last for a day or less…) allocated to hear such a big case (I.e. just the UEL breach of contract would take more than 6 hours to understand).

In brief, because there are so many issues that the HO are not aware of, I decided to include all information in a new application, so if there are any appeal in the future they can come up with appropriate response.



So, I am submitting a new ILR (im withdrawing the appeal two days later), if this first ILR application get reject, then I would have two options (an expensive j.review) or I would submit another one (at that time I would be in the UK just under 11 years or the beginning of my 12th year in the UK)….

Questions:

1) I am wondering, if the second application of ILR would be rejected as an out of time application ??


2) will I be able to resubmit this current ILR again. By the time the home office send me the decision I wont have any visa (I simply have the visa for waiting for my application ILR). So I am wondering if it would be possible to resubmit that application for the second time?? As by that time I would be just under 12 years (though visa proof for 9.5 and the rest waiting for the applications)?????

3) could this first application for ILR be considered as an out of time application as I am submitting it while I am under Section 3C leave (though I am withdrawing my appeal one day after I am submitting this new application)?? Or section 3C is strong enough leave to submit a new application.

(i.e. it is important for me, as if the HO considered it an out of time application then I wont have the right of appeal).

I look forward to hear from you
Thank you very much indeed beforehand.

Mo