Refusal again...

[potterbond007]

My out of country application for PSW was refused under 320(7b) of immigration rules.. The case worker is satisfied that i meet all the requirements and he has granted me all the required points.. In the end he says..

Furthermore, in light of the above you do not meet the requirements of paragraph 245X9a) of HC395 (as amended).. what in the world is all this??

[potterbond007]

My out of country application for PSW was refused under 320(7b) of immigration rules.. The case worker is satisfied that i meet all the requirements and he has granted me all the required points.. In the end he says..

Furthermore, in light of the above you do not meet the requirements of paragraph 245X9a) of HC395 (as amended).. what in the world is all this??

What is general grounds of refusal 320 (7a) and 320 (7b)??

[potterbond007]

My out of country application for PSW was refused under 320(7b) of immigration rules.. The case worker is satisfied that i meet all the requirements and he has granted me all the required points.. In the end he says..

Furthermore, in light of the above you do not meet the requirements of paragraph 245X9a) of HC395 (as amended).. what in the world is all this??

Ok.. in the rejection letter, they haven't even considered the appeal process that i went through.. I had submitted all my appeal documents with the application and the case worker has not bother to consider all that.. In the refusal he says..

"You have been in the UK and overstay.. Your application for PSW was refused on 1/06/2009 and you left UK voluntarily on 31/08/2009.. I am refusing you on 320 (7b).."

But i had applied for appeal... appeared for appeal on 15/07/2009 and got my appeal decision on 6/08/2009 and left UK on 31/08/2009.. I had submitted all the appeal documents and the case worker has not considered the fact that i went in for appeal.. Seriously... how can they be so irresponsible as to not consider the appeal proceedings?????????? Since I have all the appeal documents and send it to them.. And they are holding onto it.. How do i put forward a good defense for my administrative review.. And why would the case worker not consider any of the appeal proceedings?? I am able to submit more evidence..

[potterbond007]

if anyone has ever read anywhere that u should leave the UK within 28 days of an appeal being refused, then please do let me know..

[arsenal49]

this is what caseworker is talking about... para 320

http://www.ukba.homeoffice.gov.uk/polic ... les/part9/

[arsenal49]

and, this is para 245X

http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/

[arsenal49]

I very much feel for you but this is me thinking from caseworker's point of view...

By the time, HO rejected your original application, you probably must be beyond your student leave. You were given an option to appeal, since you made psw application in-time, but your appeal got refused. This means, that original HO decision stands and you are no longer covered by the paragraphy that automatically extends your stay WHILE your app is being processed. So technically you were an "overstayer" since you came to know about HO original decision.

The time spent appealing etc. is not covered anywhere unless someone here shows me proof to the contrary.

I know this is hard on you because there is no way you would have got appeal results within 28 days of HO refusal but.... thats how it goes im afraid.

This is GENERALLY what happens but every case is unique. get your facts straight and submit a review. you dont have anything to lose now...

Wait for replies from other people as well

[arsenal49]

i cannot believe it... they have taken off all the appeal-related info...

http://www.bia.homeoffice.gov.uk/siteco ... chapter12/

webpage updated:17 feb


edit:
a bit of digging and here is the relevant info


CONTINUATION OF LEAVE WHILE AN APPEAL IS PENDING
In accordance with sections 3C (2)(c) and 3D(2)(b) leave is extended while an incountry
appeal is pending.
An appeal is pending from the time that it is instituted until it is finally determined,
withdrawn or abandoned. Section 104 (1) of the 2002 Act applies. An appeal is
abandoned if the appellant is granted leave to enter or remain in the UK or if he
leaves the UK. Section 104 (4) applies.

APPLICANTS' STATUS WHILE SUBJECT TO LEAVE UNDER SECTIONS 3C
OR 3D
Where an applicant's leave has been extended by sections 3C or 3D and the
applicant wishes to work or set up in business pending a decision on the application,
our advice should be that the section extends the time limit and maintains any
conditions attached to the original limited leave.
A person whose previous leave was subject only to a time limit, ie. Code 1, may work
or set up in business while the application is under consideration, but should be
advised that this does not necessarily mean that an application to remain for such a
purpose will be granted.
IDI Sep/06 CH1 SECT5 – SECTIONS 3C AND 3D OF THE IMMIGRATION ACT 1971 (AS AMENDED)
5
A person whose leave under sections 3C or 3D expires and who has not been
granted leave becomes an overstayer, is no longer subject to any conditions and no
longer has any permission to work or run a business. Enforcement action should be
considered against the individual if he does not leave the UK


i think the last bit is relevant to you.

[potterbond007]

i cannot believe it... they have taken off all the appeal-related info...

http://www.bia.homeoffice.gov.uk/siteco ... chapter12/

webpage updated:17 feb


edit:
a bit of digging and here is the relevant info


CONTINUATION OF LEAVE WHILE AN APPEAL IS PENDING
In accordance with sections 3C (2)(c) and 3D(2)(b) leave is extended while an incountry
appeal is pending.
An appeal is pending from the time that it is instituted until it is finally determined,
withdrawn or abandoned. Section 104 (1) of the 2002 Act applies. An appeal is
abandoned if the appellant is granted leave to enter or remain in the UK or if he
leaves the UK. Section 104 (4) applies.

APPLICANTS' STATUS WHILE SUBJECT TO LEAVE UNDER SECTIONS 3C
OR 3D
Where an applicant's leave has been extended by sections 3C or 3D and the
applicant wishes to work or set up in business pending a decision on the application,
our advice should be that the section extends the time limit and maintains any
conditions attached to the original limited leave.
A person whose previous leave was subject only to a time limit, ie. Code 1, may work
or set up in business while the application is under consideration, but should be
advised that this does not necessarily mean that an application to remain for such a
purpose will be granted.
IDI Sep/06 CH1 SECT5 – SECTIONS 3C AND 3D OF THE IMMIGRATION ACT 1971 (AS AMENDED)
5
A person whose leave under sections 3C or 3D expires and who has not been
granted leave becomes an overstayer, is no longer subject to any conditions and no
longer has any permission to work or run a business. Enforcement action should be
considered against the individual if he does not leave the UK


i think the last bit is relevant to you.

I need an official looking PDF from the UK border agency with all this data to put in the review. So, in effect i was ok with staying on for the appeal as the leave t remain is extended automatically while the appeal is pending. I just cant understand why the case worker didn't consider this important information while going through my application.. After i got the letter saying that my appeal got refused, i had called the UK border agency and they had given me 28 days to leave the country. But that i cant prove.. But i guess that this is an obvious fact.. This case worker is clearly putting me through so much trouble for no reason at all..

[arsenal49]

well officially they have taken it down... i dont know where to direct you..

remain strong....

all the best

[potterbond007]

well officially they have taken it down... i dont know where to direct you..

remain strong....

all the best

Thanks...... But looks like the tide of fate is against me...

[TheSpread]

That is worrying I am trying to get in contact with UKBA to clarify the relationship between the appeal period and 28 day rule. My app has been rejected also and am appealing but if this period is then part of the 28 days to leave then I will have to wind up asap and leave!

[arsenal49]

why was your application rejected, thespread? care to elaborate?

keep us updated with your enquiries

all the best

edit: found your other post, nevermind

[TheSpread]

why was your application rejected, thespread? care to elaborate?

keep us updated with your enquiries

all the best

edit: found your other post, nevermind

Hi arsernal49, you had already kindly adviced me in the following thread:

http://www.immigrationboards.com/viewtopic.php?t=52208

[potterbond007]

That is worrying I am trying to get in contact with UKBA to clarify the relationship between the appeal period and 28 day rule. My app has been rejected also and am appealing but if this period is then part of the 28 days to leave then I will have to wind up asap and leave!

Dont worry.. I am going for the administrative review and i dont think it is.. Some drunk caseworker checked my papers.. There wasn't even a word about the appeal in the rejection letter.. It felt like he/she was looking for a way to reject me. Whoever it was should have atleast tried to come up with a convincing reason for why the appeal period wasn't considered.. I am ready to accpet it whatever it is.. but atleast come up with something.. It's just a waste of my time and energy honestly..

[potterbond007]

That is worrying I am trying to get in contact with UKBA to clarify the relationship between the appeal period and 28 day rule. My app has been rejected also and am appealing but if this period is then part of the 28 days to leave then I will have to wind up asap and leave!

and let me know what they tell u bro.. better yet, ask them for a letter or a proof or something or something they have writtenn somewhere so that i could use the same in my review.. and please do it soon.. gotta submit documents for my review in like a week..

[arsenal49]

hey potterbond
why was your app originally refused?

where have u applied from now so we know how "competent" those ECO are..

[geriatrix]

You will not find anything that would state that you had to your disposal 28 days to leave UK after appeal determination.

In the administratvice review notice, mention all dates relevant to your appeal and make it very very clear that you left UK (voluntarily and at your own expense) within 28 days of appeal determination.

BTW, did you explain about the appeal (in a cover letter, on the form) when you applied or did you just tag the appeal documents along with your application?

regards

[potterbond007]

You will not find anything that would state that you had to your disposal 28 days to leave UK after appeal determination.

In the administratvice review notice, mention all dates relevant to your appeal and make it very very clear that you left UK (voluntarily and at your own expense) within 28 days of appeal determination.

BTW, did you explain about the appeal (in a cover letter, on the form) when you applied or did you just tag the appeal documents along with your application?

regards

I did make out a covering letter stating clearly that I left within 28 days of the appeal decision and that too voluntarily which is why all this is even more confusing.. I had also written that I stayed on in the UK after my Visa refusal since I had filed for my appeal and i had the right to stay.. but the decision to reject my visa has been taken i believe without even having a look at the covering letter.. While doing an out of country application, there is nothing on the application form which asks anything about an appeal. I bet that the caseworker hasn't bothered to read the covering letter.

[potterbond007]

hey potterbond
why was your app originally refused?

where have u applied from now so we know how "competent" those ECO are..

My application was originally refused due to maintenance fund issue since my balance dropped down by 7 pounds on 1 day during the 3 month period. I didn't get the 10 points necessary for that. I got the 10 points this time but then they refused it based on this stupidity.. and i made the application in India. If nobody can find something saying that a person need leave the county within 28 days of an appeal decision, atleast help me with that bit which says ur leave to stay is automatically extended when u have an appeal pending.

[potterbond007]

That elusive bit of information is on here for everyone's benefit.....

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

But in this document too, I cant find any detail as to within how many days should u leave a country if an appeal is refused..

[geriatrix]

If nobody can find something saying that a person need leave the county within 28 days of an appeal decision

From legal standpoint, the day your appeal is determined against you, you become an overstayer. The 28 days period, if any, is a discretion offered by UKBA for the person to leave voluntarily. Exit within 28 days may be ignored by UKBA in assessing future EC applications by the candidate (but it must be declared) but exit beyond 28 days is definitely treated as having overstayed.

"Overstayed" or "Overstaying" means the applicant has stayed in the UK beyond the time limit attached to his leave, or beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971."

The day appeal determination is served, protection under Section 3C ends and, from a legal standpoint, one is an overstayer in the UK. Any day that one spends in UK beyond Section 3C protection is at one's own risk!


regards

[potterbond007]

If nobody can find something saying that a person need leave the county within 28 days of an appeal decision

From legal standpoint, the day your appeal is determined against you, you become an overstayer. The 28 days period, if any, is a discretion offered by UKBA for the person to leave voluntarily. Exit within 28 days may be ignored by UKBA in assessing future EC applications by the candidate (but it must be declared) but exit beyond 28 days is definitely treated as having overstayed.

"Overstayed" or "Overstaying" means the applicant has stayed in the UK beyond the time limit attached to his leave, or beyond the period that his leave was extended under sections 3C or 3D of the Immigration Act 1971."

The day appeal determination is served, protection under Section 3C ends and, from a legal standpoint, one is an overstayer in the UK. Any day that one spends in UK beyond Section 3C protection is at one's own risk!


regards

I have mailed the UK Home office about it and I am waiting for a reply. I definitely left within the 28 day period after my appeal decision was promulgated. But I am sure that the 28 day privilege would be extended to the day the appeal decision is declared as well. The 28 day period after a visa refusal is granted so that a person can set his affairs in order and then leave the country. Likewise an appeal decision should have the same importance since u could also get your visa by winning an appeal.

[arsenal49]

What i understand after reading that chapter and, the post by learned member of forum above, is that 28 day period is the period you are legally classed as an "overstayer" but you will NOT be punished to become an overstayer if you leave within 28 days.

So, in effect, you will not have to pay any penalty in your future application for being an overstayer.

[Wanderer]

What i understand after reading that chapter and, the post by learned member of forum above, is that 28 day period is the period you are legally classed as an "overstayer" but you will NOT be punished to become an overstayer if you leave within 28 days.

So, in effect, you will not have to pay any penalty in your future application for being an overstayer.

But I suspect it will be considered a break for 10 years legal stay ILR.