URGENT: Withdrawal of Appeal as a prerequisite to issue Visa

[concerned _sponsor]

My father applied in Oct 2010 to enter the UK as a Returning Resident (RR). This application (the RR or the "first" round) was refused a few days later. My father then appealed against that decision (within 28 days) during Oct 2010 itself.

Later, in Nov 2010, my father then applied to enter the UK to Settle as Elderly Dependant Parent (EDP). This application (the EDP or the "second" round), too, was refused, albeit, about four months later, in Feb 2011. My father then appealed against that decision too (within 28 days) during March 2011.

In the meanwhile, the "first" application refusal (RR) came up for hearing at the Immigration and Asylum Tribunal (May 2011). The Immigration Judge allowed the appeal (June 2011). Upon receiving communication from the Immigration Judge, the UKBA Post, at the High Commission wrote to my father to get his medical done and submit his passport for the issue of the visa.

Accordingly, my father got his medical done [all clear] (05/06 July) and submitted his passport (07/July). I phoned the UKBA Post, to get an update of when the passport would be available for collection.

I was told that the UKBA Post would write to my father (in 1-2 weeks) asking him to come to the Post to sign a form withdrawing his second appeal (EDP), and then collect his passport. They said that withdrawal of the Second Appeal (EDP) was a pre-requisite to issuing the First Visa (Returning Resident/RR). The questions I have are the following:

(1) Is this process correct ? Can the UKBA withhold issuing the first visa (RR) if he does not withdraw his second appeal (EDP) ?

(2) Does the grant of the first visa (RR) automatically override the first refusal (RR) stamped in the passport ?

(3) Upon withdrawal of the second appeal, will the second refusal be held against him (prejudice future applications to other countries) ?

Thanks in advance for taking the time to review and respond !

[Obie]

An appeal becomes automatically void once a visa has been issued.

I am very sceptical they are asking you to withdraw an appeal, when the effect of issuing the visa, will in actual fact make the appeal void.

[quote="APL1.9 Refusal overturned – processing the appeal"]

If the ECO or ECM overturns the refusal at any stage of the process, for example, after review of appeal or following representations, Post must notify the IAC immediately. Post must complete and email the Withdrawal of Decision proforma to the IAC dedicated mailbox eco.contact@hmcts.gsi.gov.uk and type “withdrawal of notice of decisionâ€

[IMMIGRATION LAWYER]

Hello:

(1) Is this process correct ? Can the UKBA withhold issuing the first visa (RR) if he does not withdraw his second appeal (EDP) ? - I have seen this before. The HC is confused because your father lodged a 2nd application while appealing the 1st refusal of the 1st application. The HC is now in sort of limbo. If they withdraw the 2nd refusal, are they to issue your father a 2nd visa ? In this rather unusual scenario they may ask your father to withdrawn the 2nd appeal.

(2) Does the grant of the first visa (RR) automatically override the first refusal (RR) stamped in the passport ? - Not really as it was under a different category. Depends what do you imply by overriding ? By the way, one day I came across an appeal to delete the refusal stamp (cross it out) from the passport. It was successful.

(3) Upon withdrawal of the second appeal, will the second refusal be held against him (prejudice future applications to other countries) ? - Should not, really.

Good luck.

[vinny]

It seems that he may withdraw an outstanding appeal after issue of Entry clearance.

[concerned _sponsor]

Dear "Obie", "IMMIGRATION LAWYER" and "vinny";

Thanks for your review and prompt responses. Your replies caused me to re-read the Appeals Procedures.

http://www.ukvisas.gov.uk/en/ecg/appeal ... #534431382


[b]APL1.20 Applicant makes fresh application while an appeal is outstanding[/b]
A person who has an appeal pending can make a fresh application for entry clearance in the same or any other category. There is no requirement for a person to withdraw an appeal. If an appellant is subsequently issued an entry clearance, Post must inform the IAC at: eco.contact@dca.gsi.gov.uk. The ECO must ensure that a proforma of Withdrawal of Decision is also sent to the IAC and this appeal will stop.

[b]APL1.21 Issue of entry clearance with appeal outstanding[/b]
Under section 9 of the 2006 Act, if an applicant has an outstanding appeal but makes a new application and is issued an entry clearance in a different category, any outstanding appeal against an entry clearance refusal will continue unless the appellant notifies the IAC or Post that they do not wish to proceed with the appeal.

If written notification is received at Post this should be emailed to: eco.contact@dca.gsi.gov.uk or faxed to 0116 249 4130 or 4252. Posts should also attach a covering letter.

This, in my mind, means that the Appellant, i.e., my father does not have to withdraw the appeal -- it can continue. I think that the HC is confused !

Appreciate your feedback !

[concerned _sponsor]

Dear "Obie", "IMMIGRATION LAWYER" and "vinny";

One other follow-up point - when I spoke to the Dy HC a couple of days ago, they said that they would be writing to my father in a few days time, asking him to come into the (Dy) HC (about 600 kms / 400 miles from where he lives - and he's almost 83 years old) - to sign the withdrawal letter and then collect his passport.

This advice, that was given to me, over the phone, is obviously flawed. Having said that the "spokes-person" of the Dy HC was a junior person, and not a ECO/ECM.

Question - should I:
(1) wait for the the UKBA to write in, and see what they say, OR
(2) preempt UKBA by writing in them quoting thier own Appeals Procedures:

(a) APL1.9, (b) APL1.20 and (c) APL1.21

Any and all suggestions highly appreciated.

By the way, when I was at the Dy HC and asked to see/talk to an ECO/ECM, I kept getting told, "that's not allowed" !!!

[vinny]

By the way, when I was at the Dy HC and asked to see/talk to an ECO/ECM, I kept getting told, "that's not allowed" !!!

Why not?

[pennylessinindia]

Just out of interest why do you want to continue if your father has been granted?

[concerned _sponsor]

I asked the same question and kept getting stonewalled - this is the Dy HC at Mumbai, India. They don't provide information, don't give estimated completion times, and that's when you do get through to their helpline - they're an absolute law unto themselves.

[concerned _sponsor]

Just out of interest why do you want to continue if your father has been granted?

My father has been granted Returning Residents through a successful appeal. My father would have liked the HC, on the Settlement as Elderly Dependant Parent Visa issue, to remove/delete the refusal entry on his passport with no further prejudice, and also refund the circa £1800 visa fee.

[concerned _sponsor]

Dear Obie - this comment refers, I think, to an ECM review, when the ECM decides to issue the visa, then the appeal becoems void. In the case of my father, the appeal for the Returning Resident has been successsful, and the Appeal for the Settlement as Elderly Dependant Parent is outstanding. My understanding is that the ECO/ECM at POst should withdraw their refusal of the Settlement as EDP, thus voiding the EDP Appeal - and of course simply issue the RR Visa.


[quote="Obie"]An appeal becomes automatically void once a visa has been issued.

I am very sceptical they are asking you to withdraw an appeal, when the effect of issuing the visa, will in actual fact make the appeal void.

[quote="APL1.9 Refusal overturned – processing the appeal"]

If the ECO or ECM overturns the refusal at any stage of the process, for example, after review of appeal or following representations, Post must notify the IAC immediately. Post must complete and email the Withdrawal of Decision proforma to the IAC dedicated mailbox eco.contact@hmcts.gsi.gov.uk and type “withdrawal of notice of decisionâ€

[pennylessinindia]

Just out of interest why do you want to continue if your father has been granted?

My father has been granted Returning Residents through a successful appeal. My father would have liked the HC, on the Settlement as Elderly Dependant Parent Visa issue, to remove/delete the refusal entry on his passport with no further prejudice, and also refund the circa £1800 visa fee.

I doubt you will get your money back and he will have a visa so do not think he will have any prejudice IMHO

[concerned _sponsor]

I have done some further reading, it is my humble opinion that the Dy HC should withdraw their refusal of the "S as EDP" Application .... this then has the effect of that appeal becoming void. Furthermore, when my father appealed, the appeal (S as EDP) bundle was very strong, addressing all the issues - so it is more than likely that the ECM would have overturned the original ECO refusal.

Just out of interest why do you want to continue if your father has been granted?

My father has been granted Returning Residents through a successful appeal. My father would have liked the HC, on the Settlement as Elderly Dependant Parent Visa issue, to remove/delete the refusal entry on his passport with no further prejudice, and also refund the circa £1800 visa fee.

I doubt you will get your money back and he will have a visa so do not think he will have any prejudice IMHO

[Greenie]

Just out of interest why do you want to continue if your father has been granted?

My father has been granted Returning Residents through a successful appeal. My father would have liked the HC, on the Settlement as Elderly Dependant Parent Visa issue, to remove/delete the refusal entry on his passport with no further prejudice, and also refund the circa £1800 visa fee.

I agree you should not have to withdraw the second Appeal however you will be wasting your time trying to get a refund. It was your decision to apply for another visa whilst you have a pending appeal. They are also unlikely to remote the refusal from his passport but it won't cause him any future prejudice given that he is being granted indefinite leave to enter as a returning resident.

[concerned _sponsor]

Thanks Greenie,

The visa fee refund is a nice to have.

The important learning for me is that the Dy HC (in respect of the S as EDP) have to withdraw their refusal, rather than my father withdrawing his appeal.

Any thoughts on whether I should correspond with the Dy HC peempting their response, or wait for them. Waiting does cause a delay, and I would like to get my father here before the summer is over (mid Aug). Having said that, waiting does have the benfit of letting the Dy HC show their hand first. Your thoughts ?

Just out of interest why do you want to continue if your father has been granted?

My father has been granted Returning Residents through a successful appeal. My father would have liked the HC, on the Settlement as Elderly Dependant Parent Visa issue, to remove/delete the refusal entry on his passport with no further prejudice, and also refund the circa £1800 visa fee.

I agree you should not have to withdraw the second Appeal however you will be wasting your time trying to get a refund. It was your decision to apply for another visa whilst you have a pending appeal. They are also unlikely to remote the refusal from his passport but it won't cause him any future prejudice given that he is being granted indefinite leave to enter as a returning resident.

[concerned _sponsor]

Hello Immigration Lawyer,

Thanks for your comments.

(1) The first application was that for a Returning Resident, if they issue that visa first, then there is no need for my father to get another visa as a Settling Elderly Dependant Parent. If they withdraw their Refusal and my father doesn't submit his PP for the S as EDP visa within 30 days, then they will close the case. This also means any prejudice associated with the refusal of the S as EDP visa will be removed.

(2) Perhaps I should have been clearer. Once the RR Visa is issued, it will (I assume) automatically override the RR refusal stamp. And the RR refusal has no bearing, and cannot prejudice my father's future applications. The "S as EDP" refusal stamp, should be null and void, if the Dy HC withdraw their refusal.

(3) Thanks !

I have read APL1.9, APL1.20, and APL1.21 a few times now.
http://www.ukvisas.gov.uk/en/ecg/appeal ... #534431382

Hello:

(1) Is this process correct ? Can the UKBA withhold issuing the first visa (RR) if he does not withdraw his second appeal (EDP) ? - I have seen this before. The HC is confused because your father lodged a 2nd application while appealing the 1st refusal of the 1st application. The HC is now in sort of limbo. If they withdraw the 2nd refusal, are they to issue your father a 2nd visa ? In this rather unusual scenario they may ask your father to withdrawn the 2nd appeal.

(2) Does the grant of the first visa (RR) automatically override the first refusal (RR) stamped in the passport ? - Not really as it was under a different category. Depends what do you imply by overriding ? By the way, one day I came across an appeal to delete the refusal stamp (cross it out) from the passport. It was successful.

(3) Upon withdrawal of the second appeal, will the second refusal be held against him (prejudice future applications to other countries) ? - Should not, really.

Good luck.

[concerned _sponsor]

Dear Reviewers and Respondents,

Appreciate your help so far.

I have prepared a draft letter to the Dy HC and wanted to send it to you, just so as to make sure that I haven't stated something which is incorrect, and also that I am not providing an opportunity to the Dy HC to delay matters further.

Would you like that I post the letter in the forum in this thread, or send it to via PM ?

Thanks !

[concerned _sponsor]

It is not my father who has to withdraw his appeal, because that is still a valid appeal against a refusal (S as EDP). Rather, it is the UKBA, who have to “Withdraw the (refusal) Decisionâ€

[concerned _sponsor]

Dear All - am going to send a letter via email to the UKBA, so appreciate any last minutes thoughts.

[quote="concerned _sponsor"]It is not my father who has to withdraw his appeal, because that is still a valid appeal against a refusal (S as EDP). Rather, it is the UKBA, who have to “Withdraw the (refusal) Decisionâ€

[concerned _sponsor]

Dear All,

Had a call (in the UK !!)from the UKBA Dy HC that they're ready with my dad passport to be collected. Am impressed with their efficiency. However they're still asking for my dad to sign an APP09 (withdrawal of appeal) - which is contrary to APL1.9, APL1.20 and APL1.21.

Please advise !

Thx and Rgds

[concerned _sponsor]

Dear All:
My father has received his passport with UK Entry Clearance as a Returning Residents Visa (Multiple Entry/Indefinite Leave to Remain) ..... although the Dy HC did not insist as a pre-requisite, they sent my father a copy of form APP 09, which is a withdrawal of appeal form.

I feel they're hoping that my father will sign and the other outstanding appeal (Settlement as an Elderly Dependant Parent) will go away, rather than they (UKBA DyHC) having to withdraw their decision (APL1.9, APL1.20 and APL1.21), see

http://www.ukvisas.gov.uk/en/ecg/appeals/aplprocedures

Any advice ?

By the way, the DyHC scratched only the refusal stamp relating to the Returning Residents Visa. The refusal stamp pertaining to the Settlement as Elderly Dependant Parent has not been scratched.

Thanks !!

Dear All,

Had a call (in the UK !!)from the UKBA Dy HC that they're ready with my dad passport to be collected. Am impressed with their efficiency. However they're still asking for my dad to sign an APP09 (withdrawal of appeal) - which is contrary to APL1.9, APL1.20 and APL1.21.

Please advise !

Thx and Rgds