SET (LR) help needed while appeal is in process

[Hardikjshah83]

Hi All well wishers.

Firstly happy new year to you all.

I need some help in filling my SET (LR) i have been here since Jan'2004 on various visas from Student to Student Dependant and lastly on Tier 1 General, however my last Tier 1 General (Extension) was refused and an appeal is set to be heard in Aug'2014. please note all my original documents including the passport are with HO.

Now I qualify for the ILR on 10 years basis, while taking Section 3(c) or 3(d) in consideration, my solicitor and some fellow member have suggested me to apply for ILR via SET(LR) and withdraw appeal once they receive my fresh applicaiton.

while filling up the SET (LR) i have few questions where i am not sure what to fill hence need help here

C4. Is your current passport/travel document enclosed? Y/N - should I answer YES and explain on covering letter to refer to my previous applicaion
C5. if not enclosed then location of passport/travel document lost/stolen/expired-returned, if I select NO on C4 then none of these option best describe my situation

D1. what is our current immigration status in the UK? Should i put Tier 1 (General) even though it expired in July 2013 and further grant refused,considering the in time appeal in under process.

D4 when does your current leave expire ? should i put the correct date of July 2013 if so what on D5 below? or should i put the hearing date of appeal Aug'14

D5 If your leave to enter/remain has expired, did this leave expire more then 28 days before this applicaiton was made Yes/No? if YES go to D6, or proceed.

D6. Tick to confirm you are submitting evidence of exceptional circumstances which prevented you from submitted your application within 28 days of overstaying.

Section 4 of the application form is for documents it reads as

you must provide the documents specified below which are relevant to your application, if you do no, we reserve the right to decide your application on the basis of the information and documents provided, tick the relevant boxes to show the documents you are providing. They must be originals.

Should I tick for Current passport & Biometrics Residence Permit? even though its already with HO on previous application.


Also my wife and Daughters passport is still with HO pending the hearing, obviously none of them have finished 10 years and I will be submitting FLR(M) for them depending on the answers from you above, many of my queries will be solved on that form too.

Many thanks in advance for reading and answering on this query. i am sure this will be useful to me and to others.

[migrant80]

I m in same situation my tier1 application is in appeal process in upper tribunal hearing date 6 feb 14 I m going to add my 10 yrs as additional grounds in my appeal in this way I dont need to apply separately on setlr in this option I can save my application fee as well.

[Hardikjshah83]

there are very little posts here to help people on SET (LR) wondered if there are some kind people to help.

[lynxukauq]

Hardikjshah83

The immigration rules state that under sections 3C and 3D, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.
Page 25 on Time awaiting a decision on an application or appeal

You need to make another witness statement adding additional grounds for 10 years ILR once you have crossed the 10 year threshold, and submit it to the Tribunal. You would need to satisfy that you meet the paragraph 276B of immigration rules.

Make sure you have passed LIUK Test and met English Language requirement.

[Hardikjshah83]

Hardikjshah83

The immigration rules state that under sections 3C and 3D, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.
Page 25 on Time awaiting a decision on an application or appeal

You need to make another witness statement adding additional grounds for 10 years ILR once you have crossed the 10 year threshold, and submit it to the Tribunal. You would need to satisfy that you meet the paragraph 276B of immigration rules.

Make sure you have passed LIUK Test and met English Language requirement.

Hi Lynxukauq thx for coming back. i have checked this before and there was a post here suggesting that if you put the ILR application and once you receive the acknowledgement letter then you can withdraw appeal. i will really need some clarify around here.

[lynxukauq]

Trust me I have been through this entire process nearly 4 years ago.

Would you rather follow someone post or follow what the rule says? The rules are clear, you cannot submit another application whilst your appeal is in process.

To be honest I am quiet surprised that your solicitor doesn't know this and I'm beginning to doubt their competency..

[esmsi]

One of my friend has similar situation.He applied for ILR. When he receives acknowledgement letter, he withdraw appeal

[Hardikjshah83]

Trust me I have been through this entire process nearly 4 years ago.

Would you rather follow someone post or follow what the rule says? The rules are clear, you cannot submit another application whilst your appeal is in process.

To be honest I am quiet surprised that your solicitor doesn't know this and I'm beginning to doubt their competency..

.

lynxukauq… see here i got 2 different opinion from you and esmsi.

[Hardikjshah83]

One of my friend has similar situation.He applied for ILR. When he receives acknowledgement letter, he withdraw appeal

hi esmsi.. thx for contributing...can you please elaborate the case, when did your fried had this situation .. what did he do and what was the outcome.

[lynxukauq]

Trust me I have been through this entire process nearly 4 years ago.

Would you rather follow someone post or follow what the rule says? The rules are clear, you cannot submit another application whilst your appeal is in process.

To be honest I am quiet surprised that your solicitor doesn't know this and I'm beginning to doubt their competency..

.

lynxukauq… see here i got 2 different opinion from you and esmsi.

I am not giving my opinion but telling you what the immigration rule states and also my personal experience....You have been here long enough and last thing you want to do is jeopardise your ILR. Your ultimate goal is to achieve ILR. What are the chances that even if you submit LR application and it will get approved whilst your appeal is pending. But if you go via the appeal process, by submitting additional grounds for 10 year long residence, you have high chance of securing ILR.

This is my personal experience and guidance which I am sharing with you. This has worked for me and helped me in securing ILR.

The rest is up-to you which path you take but whatever you do, do it wisely.

[migrant80]

i am agree with lynxukauq. solicitors are not giving complete information.rules are clear.check this link
https://www.whatdotheyknow.com/request/ ... years_long
thanks

[Hardikjshah83]

Trust me I have been through this entire process nearly 4 years ago.

Would you rather follow someone post or follow what the rule says? The rules are clear, you cannot submit another application whilst your appeal is in process.

To be honest I am quiet surprised that your solicitor doesn't know this and I'm beginning to doubt their competency..

.

lynxukauq… see here i got 2 different opinion from you and esmsi.

I am not giving my opinion but telling you what the immigration rule states and also my personal experience....You have been here long enough and last thing you want to do is jeopardise your ILR. Your ultimate goal is to achieve ILR. What are the chances that even if you submit LR application and it will get approved whilst your appeal is pending. But if you go via the appeal process, by submitting additional grounds for 10 year long residence, you have high chance of securing ILR.

This is my personal experience and guidance which I am sharing with you. This has worked for me and helped me in securing ILR.

The rest is up-to you which path you take but whatever you do, do it wisely.

ThNks for sharing your experience however you can imagine when 2 different opinion comes your way what you feel. Also I think I have very little chances of getting my appeal approved for the tier 1 extension. However can you please elaborate what information should I send via as additional grounds on pending appeal. Should I submit my set(LR) along with life in UK and English language with covering letter explaining the reason exercising 3(c) or 3(d).

I am going to see solicitor today anyways I will show him this link and ask what he knows about this.

Let's hope for the best and once again thanks for your help.

[lynxukauq]

Is your solicitor still dealing with your case?

You don't need to submit set (LR) application.

You will submit witness statement stating all the key points to consider your appeal under 10 years long residence since you are now eligible for it. Do you remember signing witness statement when you first made appeal for your Tier-1 refusal. your solicitor will know how to do this. It will be similar to that, except the ground of appeals will be based on long residence.

Along with the statement, you will also need to submit following documents
- All visa copies for last 10 years to prove long residence
- LIUK letter
- B1 English Language Letter

The bundle will need to be sent to the tribunal.

Hope this helps!!

[Hardikjshah83]

Is your solicitor still dealing with your case?

You don't need to submit set (LR) application.

You will submit witness statement stating all the key points to consider your appeal under 10 years long residence since you are now eligible for it. Do you remember signing witness statement when you first made appeal for your Tier-1 refusal. your solicitor will know how to do this. It will be similar to that, except the ground of appeals will be based on long residence.

Along with the statement, you will also need to submit following documents
- All visa copies for last 10 years to prove long residence
- LIUK letter
- B1 English Language Letter

The bundle will need to be sent to the tribunal.

Hope this helps!!

Sorry it took me a while to come back to you. I have checked with my solicitor and he suggested if you put application as additional grounds of appeal. And in case for any reason LR refused I will not get rights of appeal. Hence he suggested to apply and withdraw application at the same time. Just been to him and given all the papers hopefully he will submit it next week and I should get some good news in 6 months.

Seems like both are valid options, depending what you choose to do.

[rehan01]

Hello all,

i have been following this thread for a while and i m in same situation like urs, I applied tier 1 entrepreneur in january 13, refused in june 13, and appeal hearing pending (which ia 23rd january 14) in between i have completed 10 year LR in august 2013 ...... but after discussing with different people and getting different opinion i have decided not to apply for LR now and wait for the outcome of the Tier 1 entrepreneur appeal and than apply for LR irrespective of whtever the decision will be, as per guidance one cannot apply LR or apply in any other category same time while appeal is pending.

Solicitors View on this:
a) to be honest no one is clear on this and everyone got different view on this and i personally think solicitors r making money at the end from us so its best to follow the policy guidance and wait for the appeal outcome and than apply, but submitting application same day and withdrawing appeal same day might work .... as technically u r not overlapping the application and you might get away this way and i know someone who got LR using this tricky path.

b) but submitting application and waiting for acknowledgement letter and than withdrawing appeal after submission of LR, technically a good case worker will void the application as date of application is considered as date of submission of application and on that day u have appeal pending and by submitting new application and waiting for the acknowledgement letter mean application is overlap and very easy to void and send back.

so option A is tricky but can get away and option B out of question but personally i have decided to wait for the appeal outcome and than will apply LR after, even i have done LIUK test and everything is ready to apply but still want to play safe as mention i have completed 10 years in August 2013.

above is my opinion but everyone got different circumstances so good luck all but play safe as its better to be safe than sorry.

regards

[Hardikjshah83]

Hello all,

i have been following this thread for a while and i m in same situation like urs, I applied tier 1 entrepreneur in january 13, refused in june 13, and appeal hearing pending (which ia 23rd january 14) in between i have completed 10 year LR in august 2013 ...... but after discussing with different people and getting different opinion i have decided not to apply for LR now and wait for the outcome of the Tier 1 entrepreneur appeal and than apply for LR irrespective of whtever the decision will be, as per guidance one cannot apply LR or apply in any other category same time while appeal is pending.

Solicitors View on this:
a) to be honest no one is clear on this and everyone got different view on this and i personally think solicitors r making money at the end from us so its best to follow the policy guidance and wait for the appeal outcome and than apply, but submitting application same day and withdrawing appeal same day might work .... as technically u r not overlapping the application and you might get away this way and i know someone who got LR using this tricky path.

b) but submitting application and waiting for acknowledgement letter and than withdrawing appeal after submission of LR, technically a good case worker will void the application as date of application is considered as date of submission of application and on that day u have appeal pending and by submitting new application and waiting for the acknowledgement letter mean application is overlap and very easy to void and send back.

so option A is tricky but can get away and option B out of question but personally i have decided to wait for the appeal outcome and than will apply LR after, even i have done LIUK test and everything is ready to apply but still want to play safe as mention i have completed 10 years in August 2013.

above is my opinion but everyone got different circumstances so good luck all but play safe as its better to be safe than sorry.

regards

Hay Rehan... What's the outcome of appeal let us know...

[rehan01]

Hearing done yesterday and waiting for outcome now .... Complete hearing details in seperate thread

Thx

[Shogun75]

Is your solicitor still dealing with your case?

You don't need to submit set (LR) application.

You will submit witness statement stating all the key points to consider your appeal under 10 years long residence since you are now eligible for it. Do you remember signing witness statement when you first made appeal for your Tier-1 refusal. your solicitor will know how to do this. It will be similar to that, except the ground of appeals will be based on long residence.

Along with the statement, you will also need to submit following documents
- All visa copies for last 10 years to prove long residence
- LIUK letter
- B1 English Language Letter

The bundle will need to be sent to the tribunal.

Hope this helps!!

Sorry it took me a while to come back to you. I have checked with my solicitor and he suggested if you put application as additional grounds of appeal. And in case for any reason LR refused I will not get rights of appeal. Hence he suggested to apply and withdraw application at the same time. Just been to him and given all the papers hopefully he will submit it next week and I should get some good news in 6 months.

Seems like both are valid options, depending what you choose to do.

Hi Hardikjshah83,

I'm not sure why you wrote you wouldn't get right of appeal if ILR(LR) is refused? You will always get right of appeal unless you apply outside valid leave to remain or Section 3C & 3D. Basically even if you vary your appeal and it's refused you will either still have 28 days to apply again for ILR(LR) or appeal to the Upper Tribunal and then if it's refused you could file a Judicial Review. I suppose at that point you won't have the right of appeal if it's refused again, but I suppose given current processing time chances are that you will meet the conditions for ILR because you will have been on Section 3C & 3D all that time.

By keeping your appeal process "live" and varying the grounds with ILR(LR) you basically have 2 arrows to your bow, i.e. Tier 1 and/or ILR(LR). That's exactly my case, the Notice of Hearing says: "Tier 1 (G) + 10 years ILR Appeals to be heard together".
I'm not sure I fully understand your solicitor. Maybe some technical case law I ignore but It's not clear to me...

For some reasons I would like to think I'm rational and that I prefer more to less and as such I would prefer a combination of "Tier 1(G) + 10 Years ILR + Art 8 Human Rights" than risking a refusal with no right of appeal by sending a new application following the withdrawal of an appeal. I think the "only" risk of keeping the appeal is that the processing time is likely to be more than the 6 months but again I think this is not material because having spent at least 10 years of our lives here, waiting more than 6 months should be OK.

All the best

[rehan01]

I totally agree with ur explanation i m in same boat like u and have completed 10 years already but bcz appeal pending so dnt want to take risk

Regards

Is your solicitor still dealing with your case?

You don't need to submit set (LR) application.

You will submit witness statement stating all the key points to consider your appeal under 10 years long residence since you are now eligible for it. Do you remember signing witness statement when you first made appeal for your Tier-1 refusal. your solicitor will know how to do this. It will be similar to that, except the ground of appeals will be based on long residence.

Along with the statement, you will also need to submit following documents
- All visa copies for last 10 years to prove long residence
- LIUK letter
- B1 English Language Letter

The bundle will need to be sent to the tribunal.

Hope this helps!!

Sorry it took me a while to come back to you. I have checked with my solicitor and he suggested if you put application as additional grounds of appeal. And in case for any reason LR refused I will not get rights of appeal. Hence he suggested to apply and withdraw application at the same time. Just been to him and given all the papers hopefully he will submit it next week and I should get some good news in 6 months.

Seems like both are valid options, depending what you choose to do.

Hi Hardikjshah83,

I'm not sure why you wrote you wouldn't get right of appeal if ILR(LR) is refused? You will always get right of appeal unless you apply outside valid leave to remain or Section 3C & 3D. Basically even if you vary your appeal and it's refused you will either still have 28 days to apply again for ILR(LR) or appeal to the Upper Tribunal and then if it's refused you could file a Judicial Review. I suppose at that point you won't have the right of appeal if it's refused again, but I suppose given current processing time chances are that you will meet the conditions for ILR because you will have been on Section 3C & 3D all that time.

By keeping your appeal process "live" and varying the grounds with ILR(LR) you basically have 2 arrows to your bow, i.e. Tier 1 and/or ILR(LR). That's exactly my case, the Notice of Hearing says: "Tier 1 (G) + 10 years ILR Appeals to be heard together".
I'm not sure I fully understand your solicitor. Maybe some technical case law I ignore but It's not clear to me...

For some reasons I would like to think I'm rational and that I prefer more to less and as such I would prefer a combination of "Tier 1(G) + 10 Years ILR + Art 8 Human Rights" than risking a refusal with no right of appeal by sending a new application following the withdrawal of an appeal. I think the "only" risk of keeping the appeal is that the processing time is likely to be more than the 6 months but again I think this is not material because having spent at least 10 years of our lives here, waiting more than 6 months should be OK.

All the best

[Shogun75]

One of my friend has similar situation.He applied for ILR. When he receives acknowledgement letter, he withdraw appeal

For some reason, my personal opinion is that the above statement is misleading. Because, Esmsi never said that his friend ILR was granted following the withdrawal of his appeal. He just said his friend case is still on going if I remember.

The UKBA are not stupid and may be this appeal withdrawal thing and same day re-application stuff could back fire.

When you look at it, an "Appeal" is a way of involving a Third Party independent body to sort out a litigation. It's just like you're being being bullied and someone more powerful than the person bullying you intervenes to allow you to breathe, listen to what you have to say and more likely to get away with it. By not using that privilege that we've got here in the UK, you're basically jumping back to the shark's mouth hoping to be strong enough to win this time around without any referee to intervene.

Judges are independent and by definition will always be more sympathetic than a UKBA case worker.

Don't forget that the UKBA jobs is to limit and control the Immigration flow to this country and therefore to kick as many Non-EU people out as possible unless there's no reasons to do so. In some contries the immigration services will always give visa unless there is a reason to refuse. Here, as far as my experience over the past 12 years is concerned, the UKBA will grant visas if and only if there's no reasons to refuse.

Have a look at my thread. Particularly _Amber the moderator intervention.
http://www.immigrationboards.com/indefi ... 37696.html

I fully agree with _Amber and with lynxukauq may be you need to PM them.

Regards,

[Hardikjshah83]

what i mentioned was received from the Solicitor.. may be he just want me to apply for it and get him fees ... anyway i have applied 2 days ago and withdraw appeal.. means i can not change anythign thats done now.. hopefully i get the answer prior to my actual appeal date - meaning i get my case solved earlier then planned and get my pp back.. i so want to make travel this year.. it has been years...

[lynxukauq]

By keeping your appeal process "live" and varying the grounds with ILR(LR) you basically have 2 arrows to your bow, i.e. Tier 1 and/or ILR(LR)

Totally agree with the above statement.

The MAIN BENEFIT of this for the appellant is that their waiting time will be reduced to get ILR. i.e
1. If you follow the appeal process, you will have to wait for the determination to come through, then chase for the visa, then apply for ILR (Long Process).
2. If you withdraw the appeal, then apply for ILR what are the chances your ILR will be approved not saying that you wont get it but you will always remain in the dilemma as to when will you finally get it.

Judges have more power than the UKBA and hence their decision given will have more impact on your case.

[Shogun75]

what i mentioned was received from the Solicitor.. may be he just want me to apply for it and get him fees ... anyway i have applied 2 days ago and withdraw appeal.. means i can not change anythign thats done now.. hopefully i get the answer prior to my actual appeal date - meaning i get my case solved earlier then planned and get my pp back.. i so want to make travel this year.. it has been years...

Hi Hardikjshah83,

Unfortunately, you've just voluntarily curtailed your own Section 3C & 3D which means you might no longer have the legal "Right to Work" and no "Right of Appeal" if the UKBA refuses your new application.

This because you have either made a fresh application whilst you were not allowed to, i.e. if you applied just before withdrawing a pending appeal. Or you have made a fresh application whilst you had no valid leave to remain, i.e. if you applied just after withdrawing the appeal.

Whatever the case, and as you rightly said, what is done is done now. We just have to wait fo one of these cases (i.e. Yours, Reehan01, Esmsi's friend or mine) to be tested in the Courts for others on this forum to benefit.

Cheers,