In-country or out-of-country application?

[trf0412]

My Mexican friend was studying for an NVQ Level 1 in the UK in the academic year 2008-09 on a student visa (under the old rules). His college offered him a place on NVQ Level 2 of the course for the academic year 2009-10, which he commenced in Sep. 2009. His old visa was due to expire in November 2009, so he applied for an extension to his student visa, unaware of the new PBS rules. He was refused, as he did not have a CAS letter and was not studying level 3.

However, he appealed on human rights grounds, as he has been in the UK for 8 years and established a private life here. The judge neither accepted nor rejected his appeal, but instead said the Home Office should reconsider his case. The final decision was reached in July 2010 that his application should still be rejected. The UKBA have granted him discretionary leave to remain until 31st August.

In the time it took to reach this decision, my friend has now been accepted onto an NVQ Level 3 course starting in Sep. 2010, has a CAS, has the correct funds in his account and ticks all the boxes. However, he has been told that if he applies within the UK his application would automatically be rejected as his old student visa expired more than 4 months ago. Can't we argue that while the appeal was ongoing, his leave as a student continued under 3C of the Immigration Act 1971, and therefore technically his leave as a student only expired in July?

And if he went outside the UK to make a fresh student application, before his discretionary leave expires:
1) Is he allowed to do this in Spain/Germany for example, or does he have to go to Mexico?
2) Will he need to show funds for 9 months, or can he argue he has established presence in the UK, because (again, technically) his course only finished in June 2010?

Thanks!

[trf0412]

OK, to simplify my post, which includes all the background info:

1) Is a citizen of Mexico allowed to apply for a Tier 4 Student visa at a British Consulate in Spain/Germany for example, or does s/he have to go to Mexico?

2) Can someone who has been living in the UK for 8 years, but is now here on "discretionary leave outside of the immigration rules", argue that he has established presence in the UK, for the purpose of only needing to show 2 months' maintenance funds?

[geriatrix]

1. Only from country of citizenship or country of residence (long-term, not a visitor resident).
2. No.


regards

[trf0412]

1. Only from country of citizenship or country of residence (long-term, not a visitor resident).
2. No.


regards

Thanks, but can you expand in any way on your answers.

1) If the applicant has been legally living in the UK for 8 years, I guess this means the UK is his country of ordinary residence, right?

And if your answer is indeed correct, the UKBA has given incorrect advice by telling my friend to leave the country and go and apply in Spain. Maybe this is a ploy to get him to leave the country.

2) On what basis do you state that he cannot argue that he has an established presence? Surely the restrictions of his previous leave to remain are carried over to his discretionary leave, as he has not been told otherwise. If this is the case, then his status as a student would still hold and he could therefore be classed as having an established presence. However, if you understand this better, please explain.

[Wanderer]

Being a student here is not a path to permanent residency so establishing a life here is not an issue.

Has this person been here solely on student visas for 8 years? If only at NVQ level now what has this person been studying before? Is the intent to apply for ILR under the 10 year rule?

Anyway, ignorance of the PBS rules is no excuse, so ur friend is undoubtably without status, so no Section 3c protection, so they'd have to apply from their home country or anywhere they have residency, ie not a visitor.

[trf0412]

Being a student here is not a path to permanent residency so establishing a life here is not an issue.

Has this person been here solely on student visas for 8 years? If only at NVQ level now what has this person been studying before? Is the intent to apply for ILR under the 10 year rule?

Yes, point taken re. studying is not a path to permanent residency. However, my friend came to the UK when he was a teenager, as his mother came to study for a PhD, so through no choice of his own, and initially was studying for GCSEs. Since he has spent a large proportion of his formative years here and has friends here, he now feels the UK to be his home, although he is aware that being a student doesn't give him the right to apply for ILR. However, since he has completed 9 years here, if he was to complete his NVQ Level 3 he would be entitled to make an application based on long residence.

Anyway, ignorance of the PBS rules is no excuse, so ur friend is undoubtably without status, so no Section 3c protection, so they'd have to apply from their home country or anywhere they have residency, ie not a visitor.

I've read through the rules and see nothing which states "Section 3C protection does not apply if your application was rejected simply because you did not meet the requirements through your own ignorance". Please point me to the relevant link.

If indeed he did have Section 3C protection until the final refusal, then surely his status as a student continued until that time?

[trf0412]

Being a student here is not a path to permanent residency so establishing a life here is not an issue.

I think you misunderstood my use of the term "established presence". I was not referring to my friend establishing a private life in the UK, but to the following:

=========

Money to cover your living costs

The amount of money you must show to cover your living costs will depend on:
-where you will be studying in the UK; and
-whether you have recently been studying in the UK
- if you are a current or recent student, we may consider that you have an 'established presence' as a student in the UK.

Do you have an 'established presence'?

Any student (including a postgraduate doctor or a student union sabbatical officer) has an established presence studying in the UK if they:
- completed a single course of study lasting at least six months during their most recent permission to stay in the UK, which ended no more than four months before their current Tier 4 application; or
- are currently studying a single course, of which they have completed at least six months; or
- are currently studying, and have completed a single course lasting at least six months during their current permission to stay.

Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist.

[vinny]

Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist.

Unfortunately,

The UKBA have granted him discretionary leave to remain until 31st August.

[Wanderer]

Fundamental tenet of English Law: Ignorance of the Law is no excuse.

For example, I am returning to UK after several years and answer my mobile phone while driving - I didn't know it was illegal now, should I be let off?

Maybe I should cos I didn't know the new law. But what if I did - and deliberately used my mobile while driving cos I knew I could say 'Well I didn't know the new law!' and get let off.

Same for your friend, what if he knew he wouldn't qualify under the new PBS rules and applied with the old form on purpose and claim 'Well I didn't know!" and get let off and get the visa.

Doesn't work - the law needs to be upheld and we all have a duty to abide by it, we don't know people's motives, so we have to have this defence.

[trf0412]

Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist.

Unfortunately,

The UKBA have granted him discretionary leave to remain until 31st August.

Exactly! This is the crux of the issue.

If the terms and restrictions of his previous student visa carry over to his discretionary leave to remain in the same way they did to his 3C leave (while his appeal was ongoing), then he could be considered to meet this criteria.

The very fact that a discretionary grant to remain is *outside of the immigration rules* presumably means that this is not going to be mentioned within the rules, such that the following might be stated:

Additionally, the student's current or most recent permission to stay must have been:
- under Tier 4; or
- as a student under the former Immigration Rules that were in force until 30 March 2009; or
- as a postgraduate doctor or dentist; or
- discretionary leave for whatever reason.

[trf0412]

Fundamental tenet of English Law: Ignorance of the Law is no excuse.

For example, I am returning to UK after several years and answer my mobile phone while driving - I didn't know it was illegal now, should I be let off?

Maybe I should cos I didn't know the new law. But what if I did - and deliberately used my mobile while driving cos I knew I could say 'Well I didn't know the new law!' and get let off.

Same for your friend, what if he knew he wouldn't qualify under the new PBS rules and applied with the old form on purpose and claim 'Well I didn't know!" and get let off and get the visa.

Doesn't work - the law needs to be upheld and we all have a duty to abide by it, we don't know people's motives, so we have to have this defence.

Yes, good point. However, this is not really the purpose of my post. My friend appealed his refusal and, in spite of his ignorance of the rules at the time of making his application, the judge referred his case back to the Home Office for consideration based on many other factors. So, his ignorance, however wrong it was, is no longer a case in point.

My post is regarding his current status with discretionary leave.

[vinny]

245ZX(b) does not include discretionary leave.

[geriatrix]

2) On what basis do you state that he cannot argue that he has an established presence? Surely the restrictions of his previous leave to remain are carried over to his discretionary leave, as he has not been told otherwise. If this is the case, then his status as a student would still hold and he could therefore be classed as having an established presence. However, if you understand this better, please explain.

Clearly explained in the policy guidance.

127. A student (including Post-graduate Doctors and Sabbatical Officers) has an established presence studying in the United Kingdom if he/she was last given permission to stay under Tier 4, as a student, or as a Post-graduate Doctor or Dentist and he/she:
• has completed a single course of at least six months during his/her last grant of leave; or
• is currently studying a single course, of which he/she has completed at least six months; or
• is currently studying and has completed a single course of at least six months during his/her current permission to stay.

and

• his/her last grant of leave ended no more than four months before his/her Tier 4 application was made; or
• he/she is currently following a course of study.

A student cannot amalgamate two or more courses to make up the six months study.

And as per you own admission, the most recent leave granted to your friend in July 2010 is "discretionary leave outside the immigration rules" and not a Tier 4 (student) leave to remain.

Therefore, established presence cannot be claimed.


regards

[geriatrix]

trf0412, are you quoting from an obsolete policy document? Or am I missing something here?


regards

[trf0412]

245ZX(b) does not include discretionary leave.

So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?

[Wanderer]

245ZX(b) does not include discretionary leave.

So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?

And in which case the ILR lock is reset?

[trf0412]

trf0412, are you quoting from an obsolete policy document? Or am I missing something here?


regards

I was quoting from http://www.ukba.homeoffice.gov.uk/study ... how-much/#.

Is there something else I've quoted which seems to be out-dated?

[trf0412]

245ZX(b) does not include discretionary leave.

So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?

And in which case the ILR lock is reset?

What do you mean by this? The continuous residence requirement? As long as he leaves the UK while he has valid leave (in this case his discretionary leave) and gets valid leave to re-enter, he won't have broken his continuous residence, would he?

[geriatrix]

Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?

trf0412, that's fine .. as long as you are looking at the up-to-date information! Either way, hope you understand why established presence cannot be claimed in your friend's case.


regards

[vinny]

245ZX(b) does not include discretionary leave.

So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?

And in which case the ILR lock is reset?

If sections 3C/3D were applicable until the grant of discretionary leave, then he may still have lawful continuous residence.

[geriatrix]

Long residence ILR comes "inside of immigration rules", while your friend is now allowed to stay "outside of immigration rules"! Link broken, AIUI.


regards

[vinny]

Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?

Although DL is outside the immigration rules, isn't it still lawful?

[vinny]

245ZX(b) does not include discretionary leave.

So, based on 245ZV he would be able to apply for leave to enter (i.e. making a fresh application from overseas), but would not be able to apply for leave to remain based on 245ZX(b). Have I understood this correctly?

I believe so.

[trf0412]

Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?

Not as far as I could ascertain from reading through the rules. With his current DL he isn't an overstayer and has never been here illegally and DL isn't listed as being a factor which breaks continuous lawful residence, as it itself is lawful residence.

trf0412, that's fine .. as long as you are looking at the up-to-date information! Either way, hope you understand why established presence cannot be claimed in your friend's case.

regards

It appears, then, that the only reason he can't claim an established presence is because he's switched from being a "student" to being "a person with DL"?

It seems a bit of a silly rule, as the very point of the established presence is to show you have a steady source of funds and hence can get away with a lower bank balance, and with his DL he is allowed to work, and has a job!

[geriatrix]

Isn't "DL outside the immigration rules" kind enough to set the 10yr. student long residence ILR clock to zero?

Although DL is outside the immigration rules, isn't it still lawful?

Grey area for me! But my understanding (personal) is that lawful in this context essentially means "lawful from the perspective of and/or as assessed within the scope of immigration rules" and leave "outside of immigration rules" blurs the context of how the term lawful can/may be applied.

But as I said, that's my personal (and limited) understanding and I may be completely wrong here. Hence the ? and AIUI in my response(s) on ILR clock.



regards