Judicial Review- 28 day rule and Post dating of initial Visa

[ssingh179]

Hi All,

This is a depressingly familiar story, but would appreciate it if you could go through it.

I came over on Jan 11, 2008, under the HSMP, switched to Tier 1 (General) later. My current leave expires on Dec 6, 2012, which is more than 28 days before the date on which I complete 5 years of stay in the UK (Jan 11, 2013). The relevant rule, for the record, is stated on http://www.ukba.homeoffice.gov.uk/settlement/ - "Please do not send us your application more than 28 days before you become eligible to apply. If you do, we may refuse your application with no refund of the application fee (where a fee is charged). However, you must make your application before your current permission to stay in the UK expires."

**However**, http://www.ukvisas.gov.uk/en/howtoapply/processingtimes states that:
You can apply for your visa within three months of your intended date of travel. We are only able to post-date visas by a maximum of three months from the date of the decision on your visa application. You can enter the UK anytime after your visa issue date but not before.

When I applied for an Entry Clearance in India on Nov 20, 2007 (and this three month rule existed back then as well, I have an official confirmation of it), the form which I filled did not have any section where I could request the British High Commission to post date the beginning of the Visa (by a time duration up to 3 months) rather than have the Visa start from the date of decision. My intention was to travel to the UK in the first fortnight of January 2008, which I did. Given a choice, I would have preferred to have the Visa start on Jan 1, 2008, and that would have ensured that I could apply for an ILR in Dec 2012 without needing a second extension of leave to remain. Also, the gentleman from VFS who accepted the application form on behalf of BHC conveniently failed to mention anything at all about this flexibility.

I believe this is unfair on their part to not inform the applicants about this flexibility. There is also a conflict of interest here - if they do not inform the applicant about this rule, and the applicant gets into a situation where he needs an extra extension because there is a gap of more than 28 days between the Visa start date and actual arrival in the UK, they stand to gain financially (while causing the applicant a substantial hardship).

I wrote to UKBA, who (expectedly) deflected me to the British High Commission (BHC) in New Delhi. I wrote to BHC, and they say it is not their job (or VFS's for that matter) to tell the applicant anything. Even if it is of vital importance to the the applicant. Even if they stand to gain handsomely from the applicant's ignorance of this law.

There is something very, very wrong here. I have been thinking about legally challenging UKBA over this issue. I have been advised (by a charity) that the only way forward is to file for a Judicial Review. This charity won't do it as they do not enough resources to mount a legal attack on UKBA, and that surely goes for a lone individual like me. I have been told that the costs involved would be in the range of tens of thousands of Pounds.

I also talked to my local Citizens Advice Bureau, they suggested involving my local MP who they say, is quite 'active'.

I know I am not the only person in this predicament, has anybody else thought about this problem and researched it?

Any thoughts/feedback/brickbats are welcome.

Regards, and thanks for reading this,
Sh

[geriatrix]

Post-dating a visa effective date is at the discretion of the ECO, and not an entitlement.

The ECO should check the applicant's visa application form (VAF) for the proposed date of travel in order to prevent unnecessary applications for an extension of stay, and possible claims for a refund of the extension fee. Where an applicant may not intend or be able to travel to the UK immediately following their application: the ECO has discretion to defer the 'effective' date until the date of travel, or up to 3 months from the date of issue, whichever is shorter.

One can indicate the same by mentioning a date (within a 90 days window from the date of EC application) against "On which date do you wish to travel to the UK" in the relevant Visa Application Form (VAF). A brief explanation of the matter either in the "additional information" section of the VAF form or in a covering note suffices on most occasions. If, by mistake or for any other reason (unknown to applicant), the ECO does not issue a post-dated visa, a written communication by post or email to the issuing British High Commission post is usually enough to resolve the issue (BHC asks for the passport and endorses a new visa with corrected effective date).

If you search the the Tier 1 (General) forum, you'll find many posts from applicants who have been issued post-dated visas, and also several cases where a post-dated visa was (correctly) requested but not granted and follow-up communications with the visa issuing post resolved the issue.

This said, not sure if one can challenge something that is offered as a discretion rather than being an entitlement, in a JR or otherwise.


IMHO ....


regards

[ssingh179]

I still have a soft copy of the form I filled in Nov 2007, and there is no section which asks "On which date do you wish to travel to the UK" (or anything similar in letter or in spirit).

Does this make any difference to the argument you have put forward?

Regds,
Sh

[geriatrix]

I still have a soft copy of the form I filled in Nov 2007, and there is no section which asks "On which date do you wish to travel to the UK" (or anything similar in letter or in spirit).

VAF2 (2004) asks for "When do you intend to travel in the UK" under section 2.18.
VAF2 (2007) ask for the same information right at the very beginning (line above Part 1).
All the current VAFs, including PBS VAFs, ask for it too!

Which VAF (month/year) did you use to apply for EC in Nov 2007? Will be interesting to see a VAF that skipped asking this question!

Does this make any difference to the argument you have put forward?

No, because it is not an argument that I have put forward .... but a fact based on personal experience from almost 2 years before your date.


regards

[mulderpf]

When I applied for an Entry Clearance in India on Nov 20, 2007 (and this three month rule existed back then as well, I have an official confirmation of it), the form which I filled did not have any section where I could request the British High Commission to post date the beginning of the Visa (by a time duration up to 3 months) rather than have the Visa start from the date of decision. My intention was to travel to the UK in the first fortnight of January 2008, which I did. Given a choice, I would have preferred to have the Visa start on Jan 1, 2008, and that would have ensured that I could apply for an ILR in Dec 2012 without needing a second extension of leave to remain. Also, the gentleman from VFS who accepted the application form on behalf of BHC conveniently failed to mention anything at all about this flexibility.

VFS is not there to offer advice and tell you how to complete your application (this is stated on their website as well). They are there as handling agents for applications as a first check before it reached the BHC.

If your intention was to travel later, you should have mentioned this on your form - either by means of putting in the comments (if you are right about the travel date question not being there) or by answering that question.

I applied for a visa (working holiday) back in 2002 and even that one was post-dated following the answer on my intended travel date, so it's definitely not something new.

It would seem to me that you made a very costly oversight.

[ssingh179]

Incredible as it sounds, the VAF form that you have pointed to asks On what date do you want to travel to the UK?
while the form that I have, and which I filled in Nov 2007, does not ask this question.
I am not quite sure how to share that file with you, as a temporary measure you can pull it from http://rapidshare.com/files/447518336/VAF2.pdf
I would have readily admitted an oversight on my part if my form had that relevant question as well.
In any case, I wonder, what could be a rational explanation for asking for the intended date of travel on one version of a form and omitting it from another (and parallel) version?

[geriatrix]

Strange indeed!

All I can say is that the text that I quoted above has been on the UKVisas website has for years. Earlier it also included a sentence to the effect that visitor visas could not be post-dated but this was taken off sometime last year.


regards

[ssingh179]

Well, I am beginning to believe that whether I have a valid case or not (and I think I do), getting anything accomplished is going to be an uphill task.
The only thing Home Office will respond to is a stick wielded by an authority more powerful than itself, which takes me back to the JR approach, which is, of course, easier said than done.