10 years ILR refused because of 3 months gap!!!!!

[Jollyjustcome]

Can anybody please advice. My husbands ILR was refused because he had a gap of 3 months in 2009. The gap occurred after we lost an appeal for tier 1. The appeal was dismissed and we informed our legal representative who informed us that he had taken the next step to proceed with judicial review.
We re applied for the tier 1 and we were granted without HO mentioning the gap. The leave expired in April 2013. He applied for ILR and was shocked that it was refused because of the gap. He's been given right to appeal. What other options do we have?

[Amber]

Did you re-apply within 28 days of the appeal decision?

[quantum1]

Also JR is not covered by section 3C.

[Jollyjustcome]

Reapplied after 3 months because lawyer told us he had sent letter to home office informing that we were going to proceed to JR. So we didn't hear from HO and decided to reapply cos we had the missing document that caused the initial refusal. Why is JR not covered by section 3C? Does it mean people become illegal from time they loose appeal? Thank you

[Amber]

Did your solicitor not advise you to apply for leave as soon as the appeal was determined?

[Jollyjustcome]

No he didn't

[Amber]

Get proof you went for judicial review and get the solicitor to write a letter if you can saying what he advised. They have discretion and as your solicitor may have failed to give you appropriate advice, try and get them to use it.

[Jollyjustcome]

Thank you so much Amber. Will see the solicitor sometime this week and will let you know the outcome. Thanks a lot.

[Amber]

Submit your appeal within the time limit.

[Jollyjustcome]

Yes. Appeal date given for march 2014.

[Ayyubi72]

I am sure you will try your best to win the appeal and you should. But my humble suggestion is not to dwell on appeal. Your appeal will be dismissed. Simple reason being your previous appeal dismissal for the extension. FTT will not and cannot revisit the previous FTT decision, and hence for this appeal they must dismiss your appeal. Only if your case proceeds further on the legal ladder and a judge revisits the extension decisions and comes to a decision that your extension should have been granted, only then your challenge to ILR refusal will succeed.

Good luck.

[Amber]

An appeal should trigger an automatic reconsideration, you should send the additional information for them to consider, they can reverse the decision.

[Ayyubi72]

Wrong. FTT cannot act as an appeal court for its own past decision. A FTT judge has no authority to overrule another FTT judge's decision.

[Amber]

Again, an appeal should trigger an automatic reconsideration (by the UKBA) at which point a UKBA decision maker can reverse a decision before it even reaches the IAT. Moreover, this case has not even been to an appeal yet. The appeal mentioned above related to a PBS application this appeal will relate to an ILR application

[Ayyubi72]

Yes, if you read my post I didn't say this appeal is for previous extension refusal. Previous appeal was dismissed long ago and set it stone. This ILR application failed because there was a gap of 3 months. That gap has already been legally certified by previous ftt decision. ILR refusal is sound because of gap. Only UT can revisit previous ftt's appeal dismissal. If UT reverses the extension decision, then refusal of ILR will automatically reverse.

Ukba will reconsider their ILR refusal, but they won't reconsider previous refusal, because they already did that and got their decision upheld by a judge.

[Amber]

No one is saying the previous refusal will be overturned

Gap(s) in lawful residence
You may grant the application if an applicant:

 has short gaps in lawful residence through making previous applications out of time by
no more than 28 calendar days, and
 meets all the other requirements for lawful residence.

You can use your judgement and use discretion in cases where there may be exceptional
reasons why a single application was made more than 28 days out of time.

For instances where the application was made after 28 days there is discretion to still grant the application for ILR. If the OP can submit evidence to show that incorrect advice was given by the solicitor and that the OP would have submitted the application immediately, the reconsideration may succeed. The issue is not that he was refused the PBS application. The issue is that he applied for subsequent leave (out-of-time) after 28 days of the appeal determination. His solicitor should have put in an application for further leave whilst applying for JR. In such case the gap would not have exceeded 28 days and thus the ILR application would have succeeded.

[Jollyjustcome]

Thanks Amber. All what you say is in confirmation of what a couple of friends have advised me to do. Will keep u informed.

[tanvir1985th]

No one is saying the previous refusal will be overturned

Gap(s) in lawful residence
You may grant the application if an applicant:

 has short gaps in lawful residence through making previous applications out of time by
no more than 28 calendar days, and
 meets all the other requirements for lawful residence.

You can use your judgement and use discretion in cases where there may be exceptional
reasons why a single application was made more than 28 days out of time.

For instances where the application was made after 28 days there is discretion to still grant the application for ILR. If the OP can submit evidence to show that incorrect advice was given by the solicitor and that the OP would have submitted the application immediately, the reconsideration may succeed. The issue is not that he was refused the PBS application. The issue is that he applied for subsequent leave (out-of-time) after 28 days of the appeal determination. His solicitor should have put in an application for further leave whilst applying for JR. In such case the gap would not have exceeded 28 days and thus the ILR application would have succeeded.

I got a question. if i reapply and ask for judicial review and my application is refused again then will the judicial review extend my visa automatically given the condition that ukba accepts the receipt of the JR? secondly after the 2nd refusal do i have another 28 days for another application? if so can i keep applying one after another in 28 days in order to keep my status legal? i will appreciate yr answer. thx

[Amber]

No, the 28 days concession only applies to out-of-time applications made subsequent to an in-time application not another out-of-time application. Judicial Review if not an appeal per se, it is to evaluate whether the public body has acted ultra vires - outside the scope of their powers.

[Anup123]

hi amber

I came to uk in 2007. I have completed my study MBA and PSW. In Jan 2013 I got tier 2 visa but that was later curtailed by ukba because of issue with sponsor. I got curtailment letter to apply or find another sponsor within august 2013. I applied for change of employment in 14th of august 2013 but that was refused on 18th of october with appeal right. Reason of refusal was sponsorship withdrawn or cancelled by ukba during the application process. I have applied again in 29th of october with new sponsor but that was refused again in 25th november with no appeal right and specially mention to go Nepal . Reason of refusal was job was not under NQF level 6 and salary was under £20300 (or £20700).
I thought I have overstayed as my visa was till 30 august 2013 because of curtailment letter. FIRST REFUSAL ON 18TH OF OCTOBER WITH APPEAL RIGHT. BUT I DID NOT DO APPEAL. My second rejection on 25th Novemeber 2013.

But I applied again with new sponsor in 9th of December just to try my luck and i got visa .
I am working now with new sponsor.
My question is how ukba will take my immigration history. Can i apply 10 years settlement in future provided i overstayed in my second rejection ( i think i may be wrong).
Please could you advise me so that i can plan my future.
I would appreciate your time and advice.
Thank you.
Kind Regards.
Anup