Fresh Application While Waiting for Appeal Date

[TheSpread]

So I made a post based on maybes a month ago here:

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

In brief I met all conditions for the PSW except for the maintanance funds. What has happened is I have just received a letter stating that my hearing date is at the end on June, by the beginning of June I will have sufficient evidence of funds for a new application (worried of going to court and losing) so does anyone know if one is able to lodge a fresh application in before their appeal hearing. A legal advisor told me I always have the right to do so especially as my leave to remain is extended under the appeal process. Has anyone done this and been successful with a fresh app while waiting for their hearing?

TheSpread

[arsenal49]

umm, so you are making new application AFTER your visa has expired and your appeal date is set...

well, in my opinion, its not an option. have a look at the application form for psw and a question where it states do you have any appeal pending. you have to say yes.. then read the guidance notes etc to see what could be the impact on your most recent app when your appealing the decision on previous application.

your app could be regarded simply as invalid application by the caseworker. ask your lawyer if it INDEED falls under invalid application category. you might need to do your own research as most of them lawyers can NOT be trusted wholly.

regards

[TheSpread]

Thank you very much arsenal49. I have read the guidelines...the advisor seems to stand by his word (he is someone I just contacted so won't be doing the application through him).

The form ( http://www.ukba.homeoffice.gov.uk/sitec ... k-form.pdf ) reads:

D30. Does the applicant currently have an appeal with the Asylum and Immigration Tribunal which is yet to be heard?
Yes
- go to question D31

D31. Give details of the appeal, including the date the appeal was submitted, what the appeal is for (the category) and the payment reference number for the original application (where applicable):

D32. Has the date of the applicant’s leave, as stated in his/her passport, now passed?

Yes
- the applicant is not able to submit a further fresh application. However, they can, if they wish, provide additional grounds to the outstanding appeal. Go to the help text.

No
- go to Part E
N
ow

By my understanding of Section 3C: Section
3C automatically extends the leave of a person who has made an application/appeal for
further leave to remain during a period of extant leave. Technically, the leave is
"treated as continuing". So I could tick 'No' on D32 and go to part E as technically my leave to remain would not have passed (as I made the initial application before my student visa had expired, if however I had made my application after it had expired I would have to tick 'Yes' as would be appealing after overstaying...am I correct?) until after the court hearing and decision. Am I just convincing myself or this is actually the case? Ive tried emailing UKBA with no response...hope they do so soon.

[arsenal49]

remember one thing though. section 3c is ONLY relevant UNTIL the appeal decision is pending.

Are you sure you can use this leave to submit new application.

this is what another applicant was told after rejection(see below)... so please be careful and read sectio 3c yourself before submitting new application.

if in doubt, give a call directly to AIT or contact citizens advice bureau to help you make an informed decision regarding validity of new application.

regards.

"
One-Stop Warning - Statement of Additional Grounds


You must now inform us of any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here and any grounds why you should not be removed or required to leave.
You do not have to repeat any reasons already given us but if you do have any more reasons you must now disclose them.
If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.
If, at a later date, the reasons why you think you should be allowed to stay in this country changes, or new reasons arise, you must tell us as soon as possible.
If you apply to stay here for a reason which you could have raised earlier, you may not be able to appeal if the application is refused.
This ongoing requirement to state your reasons is made under section 120 of the Nationality, Immigration and Assylum Act 2002.
"

[arsenal49]

just read your post again....

The question is VERY very obvious(D32:Has the date of the applicant’s leave, as stated in his/her passport, now passed?). you MUST answer YES and then explain why are you making new application, if you must.

This is very serious as it can fall under the category of using deception if you answer "no" because fact of the matter is your visa has expired (BUT according to another piece of legislation your leave is extended so you are not an overstayer, atleast until decision is out on your app.) Consequences are severe when deception is used for any application.

I am pretty sure senior members who will read this post will agree with me on this analysis.

regards

PS. if i were you, i would answer yes to the question.. explain it if there is any space below that question, saying leave is extended etc etc. If not, i would stick a yellow paper next to this question and direct the caseworker towards your covering letter for further explanation.