Urgent...PLEASE READ! FLR Compassionate leave /Art 8 ECHR

[way2cool]

Hi All,

I'm looking for some advice on our situation, which I will try and explain here as best as possible.

I was the victim of gruesome earthquake which occurred in western part of India 2001. It resulted into the huge loss in the death of my family members & the amputation of my right leg. My detailed story can be found on BBC website by typing my full name in the ‘search bar’ A British gentleman on viewing the earthquake disaster on TV , was deeply touched my circumstances and assisted me to come over to UK & live with him helping me emotionally & financially to overcome the loss of my leg & family members. I was only 16 yrs when I first came over to UK so this British gentleman was appointed as my legal guardian until I became an adult. 7- 8 yrs down the line, to date I still live with this gentleman who I view as father figure as we both have interdependency on each other. It would be impossible for us to have a life without each other & that I have nobody to turn to apart from him which is what we are trying to explain HO. Only have my sister back in India who is married with children which I have little or no contact with. Im also using my disability (facilities available to service my artificial leg at NHS unlike India)

HO refused my initial application submitted stating number of reasons which they think do not meet claims under an established life under Art 8 of ECHR. We have hired OISC reg & level 3 Immi lawyer based in London. We with the help of my lawyer submitted detailed representations requesting a reconsideration of HO refusal decision clearly pointing out fundamental errors in their reasons for the said refusal. I only had limited rights to appeal but did not appeal at the time.

Me & my uncle (The british gentleman mentioned above) are in the process of contacting local MP.

Having spoken to HO adviser on phone recently, i was informed that I am unable to work on terms & conditions of my previous visa as my application had been intially refused which is pathetic. In response to this, my lawyer has asked written confirmation frm HO to grant me entitlement to work whilst reconsideration application is pending , which we are awaiting a reply. Its very frustrating & stressful for me as I cant work + no outcome on my application.

I have spent nearly 7 yrs as resident in UK
1) 4 Yrs as a student
2) 2 yrs on Tier 1 as Post study worker (PSW).
3) Over 1 year waiting on the outcome my pending application.

It’s been nearly 15 months since my initial application was submitted. During the course, My lawyer chased up the progress on reconsideration application in sept 2010 & jan 2011 respectively but HO giving lame answer like my application in reconsideration que awaiting to be looked at, experiencing departmental changes etc . So they haven’t had time to deal with my application. Do you think HO is deliberately delaying my case or ignoring me? Do we threaten HO for JR review? What do you think of my case?

Any advice & opinions will be greatly appreciated. .

[NT1234]

Very sad story - i just read this up on the BBC website and saw your courage and pray God will perform a miracle so you are granted your status. Please continue to hold the faith and you will get through this.

Im afraid i cant offer any advice but confident other members will be able to.

Good luck.

[way2cool]

Can one of the modernators provide some help as per above......i would much appreciate some response. Thanks

[Greenie]

I only had limited rights to appeal but did not appeal at the time.

It’s been nearly 15 months since my initial application was submitted. .

Why didn't you appeal at the time?
When was the refusal and when were the further representations submitted?

[way2cool]

Thanks for yr prompt reply.

The refusal letter stated following

"Your application is refused because you are seeking to remain in UK for a purpose other than one for which entry or remaining is permitted by immi rules (section 88 (2) (d))

Therefore your right to appeal this decision under section 82 (1) of the nationality immi & asylum act 2002 is limited by operation of section 88 of this act.

Now at the end of refusal letter, the HO stated the following.

"In the view of the above , a decision has been taken that although your removal from the UK, the seperation would be temporary to facilitate the entry clearance & therefore, the perceived interference with your right to family & private life in the UK , would be temporary & not in breach of Art 8 under ECHR"

What do you make of this pargaraph/jargon?

My lawyer asked HO for the clarification of the above as they are unaware of any application within the Immigration Rules that I would satisfy.

[way2cool]

@ Greenie
What grounds did you apply on exactly?
I applied on compassionate grounds/Art 8 ECHR. If my application got refused again, from what i gather, I'd b able to appeal on human rights upon receiving notice of removal from UK but im not 100% sure...

I agree with you. The concluding paragraph quoted from the refusal letter did not make any sense to use as to what caseworker was trying to /convey. It is misleading. I only typed out off the refusal letter for you to analyse

[way2cool]

Just a quick update on my situation!
"Our local MP asked UKBA to advice why they havent made a decision it seems on reconsideration application. He also tried to reinforce the unsusal situation & background in this case & fact that I've been living in UK for so long that I would not have any future in India".

UKBA responded to him detailing that my application is still in their system & will be considered in order of receipt, clearly they feel they havent had all the evidence they need to make a quick or positive determination. Unless we are able to provide them any further compassionate compelling circumstances that would warrant expediting my reconsideration request, otherwise it will be dealt with in due time.

Please provide your further opinions & guidance.

[way2cool]

Hi greenie,
Just a quick update on my situation. in reference to my case. UKBA responded to my lawyer today confirming I'm unable to work or study in UK whilst reconsideration app is pending. The entitlements of previous visa became null & void as soon as my app was initally refused. I understand If someone appeals against the refusal, their terms & conditions of previous visa remain in place but in my case as per my lawyer after intial refusal , according to UKBA there was no statutory right of appeal the only stage at which you can appeal is when a notice for removal from the United Kingdom is served on you and any appeal would be based on the fact that your removal would be a breach of your human rights, specifically, your right to private and family life & that I was only allowed to put forward representations requesting reconsideration.

I'm losing confidence in my lawyer & unsure if he is doing the job properly or using his expertise/knowledge to the best of his ability. So please advise if my lawyer did the right thing or could he have done better? what is the exact procedure of art 8 cases after intial refusal?

I'm feeling stressed & insecure with the way my situation goes. I'm in need of some guidance for peace of mind!

[Greenie]

Hi greenie,
Just a quick update on my situation. in reference to my case. UKBA responded to my lawyer today confirming I'm unable to work or study in UK whilst reconsideration app is pending. The entitlements of previous visa became null & void as soon as my app was initally refused. I understand If someone appeals against the refusal, their terms & conditions of previous visa remain in place but in my case as per my lawyer after intial refusal , according to UKBA there was no statutory right of appeal the only stage at which you can appeal is when a notice for removal from the United Kingdom is served on you and any appeal would be based on the fact that your removal would be a breach of your human rights, specifically, your right to private and family life & that I was only allowed to put forward representations requesting reconsideration.

I'm losing confidence in my lawyer & unsure if he is doing the job properly or using his expertise/knowledge to the best of his ability. So please advise if my lawyer did the right thing or could he have done better? what is the exact procedure of art 8 cases after intial refusal?

I'm feeling stressed & insecure with the way my situation goes. I'm in need of some guidance for peace of mind!

It is difficult to say whether or not your lawyer is doing a good job as it is not possible to say this without seeing all of your papers. However what I would say is that in my opinion you should have appealed the original decision to refuse your applicaiton to vary your leave to remain. You said above that you did get a right of appeal, although it was limited under Section 88 of the 2002 Act. This allows you to appeal on limited grounds (that the decision interferes with your human rights/rights under the refugee convention or racially discrimates against you). In my opinion your rep should have advised you to exercise your right of appeal and argue the decision interferes with your article 8 rights. This would have allowed you to retain your right to work etc whilst the appeal was underway.

Your rep is correct that if they make a decision to remove you this will attract a right of appeal however it is not wise to rely on this because it is well documented that UKBA leave people in limbo and do not make such a decision, in an effort to make them leave of their own accord. This is why in my opinion you should have appealed before.

See:

http://freemovement.wordpress.com/2011/ ... revisited/




As you are now not able to work you are likely to be eligible for free legal help/representation (legal aid). I would therefore suggest that you consider looking for another solicitor/representative. I don't really like to recommend particular solicitors on a public forum such as this, however if you go to this link

http://www.communitylegaladvice.org.uk/ ... search.jsp

you can search for a solicitor/legal rep that provides free legal representation in immigration law. Make sure you tick the immigration box and then put in your postcode to find firms near to you. note you don't have to go to the firm closest to you but you should choose a firm in London as opposed to outside because firms with a legal aid contract can't accept clients outside their region unless firms in the region do not have capacity.

Not all solicitors with a legal aid contract are good but in my opinion it is safer to go for such a firm even if you are not entitled to legal aid as these firms employ solicitors/caseworkers who have taken the Law Society's Immigration and Asylum Accreditation exams. As firms who act purely on a private basis are not required to take these.

[way2cool]

@ Greenie.. Thanks a lot. yr help much appreciated!

[way2cool]

does anyone know if an applicant is entitled to work full time in UK whilst the decision on reconsideration application is pending following initial refusal ? I'm confused regarding this..!!