PSW refusal.

[Boubadinhio]

I was wondering if anyone can please help me with the following issue.

I have recently been refused the Post-Study Work Visa. Currently, I am waiting for the verdict on my permission to appeal to the High Tribunal following the dismissal of my appeal to the lower Tribunal.

For some background; I came in the UK in November 2002 on a student visa. I have since completed an undergraduate degree in Economics (Distinction - Valedictorian) and two MSc (with distinction). My problem started in August 2009, following my application for a student visa to study towards a second MSc. This application was refused on the ground that I did not pay my full tuition fees. Though, I received my documents along with the refusal decision back from UKBA on the 30th of October 2009. To my surprise, the documents said that the decision of refusal was made on the 5th of October and that I had until the 19th of October to appeal against UKBA decision, which meant that the date for appeal had long passed! I was advised by the International student office of my University to pay my full tuition fee and lodge a new application along with an evidence based full explanation of the delay that has occurred in my receipt of UKBA decision. Thus a new application was sent out on the 20th of November 2009 along with all the relevant documentations by the International office of my University on my behalf. Following my new application, I was granted a student visa to study.

After completing my MSc, I decided to apply for the PSW visa in mid-January 2011. However, this application was refused on the ground that between the 30th of September 2009 and 20th of November 2009, I did not have leave to remain in the UK! Naturally, there was a clear inconsistency here in a sense that I had already been issued a student visa based on the evidence that I had provided explaining the delay which resulted in me missing the appeal deadline in 2009. Thus, I decided to appeal the decision on the ground that I was being judged on a historic issue that evidently had already been dealt with. With the help of my University, I submitted my appeal and attended a hearing. I must point that during the hearing none of the evidence I provided to explain the delay of my receipt of UKBA decision in 2009 were challenged. No long ago, I received the decision of the judge dismissing my appeal on the ground that I did not fulfil the requirement of the point based system because of the gap in my leave to remain period in the UK...but he failed to mention why I was granted the stay in 2009 based on the very same situation!

I have now decided to apply for a permission to appeal to the higher tribunal following the above.

[Boubadinhio]

Please please guys help me with the above...

[mvent00]

I was wondering if anyone can please help me with the following issue.

I have recently been refused the Post-Study Work Visa. Currently, I am waiting for the verdict on my permission to appeal to the High Tribunal following the dismissal of my appeal to the lower Tribunal.

For some background; I came in the UK in November 2002 on a student visa. I have since completed an undergraduate degree in Economics (Distinction - Valedictorian) and two MSc (with distinction). My problem started in August 2009, following my application for a student visa to study towards a second MSc. This application was refused on the ground that I did not pay my full tuition fees. Though, I received my documents along with the refusal decision back from UKBA on the 30th of October 2009. To my surprise, the documents said that the decision of refusal was made on the 5th of October and that I had until the 19th of October to appeal against UKBA decision, which meant that the date for appeal had long passed! I was advised by the International student office of my University to pay my full tuition fee and lodge a new application along with an evidence based full explanation of the delay that has occurred in my receipt of UKBA decision. Thus a new application was sent out on the 20th of November 2009 along with all the relevant documentations by the International office of my University on my behalf. Following my new application, I was granted a student visa to study.

After completing my MSc, I decided to apply for the PSW visa in mid-January 2011. However, this application was refused on the ground that between the 30th of September 2009 and 20th of November 2009, I did not have leave to remain in the UK! Naturally, there was a clear inconsistency here in a sense that I had already been issued a student visa based on the evidence that I had provided explaining the delay which resulted in me missing the appeal deadline in 2009. Thus, I decided to appeal the decision on the ground that I was being judged on a historic issue that evidently had already been dealt with. With the help of my University, I submitted my appeal and attended a hearing. I must point that during the hearing none of the evidence I provided to explain the delay of my receipt of UKBA decision in 2009 were challenged.

Clearly, it is your mistake. You should have explained it in a cover letter, at the same time providing them supporting documents, such as refusal letter, letter from your university. Try with these and hope for the best.



No long ago, I received the decision of the judge dismissing my appeal on the ground that I did not fulfil the requirement of the point based system because of the gap in my leave to remain period in the UK...but he failed to mention why I was granted the stay in 2009 based on the very same situation!

I have now decided to apply for a permission to appeal to the higher tribunal following the above.

[Boubadinhio]

Well, actually I did provide a letter explaining the issue along with all the evidence as part of my application for the appeal. Thus, the judge already had a copy of every single documents/evidence (letter from the University, envelop in which I received the late documents in 2009 with the date signed for, refusal letter, cover letter I used in 2009 explaining fully what happened) I used during the hearing weeks before the day of the appeal.So, I really don't see what else I could have done to explain the situation better.

[mtuckersa]

why didn't you pay the full tuition fees? seems if you had just paid the fees you would not be in this mess??

[vinny]

I received the decision of the judge dismissing my appeal on the ground that I did not fulfil the requirement of the point based system because of the gap in my leave to remain period in the UK...but he failed to mention why I was granted the stay in 2009 based on the very same situation!

Did the judge quote the applicable immigration rules for the refusal? If you satisfied 245FD, then I don't see any basis for the refusal.

In particular,

(f) The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain

doesn't exclude gaps prior to your current leave.

[Boubadinhio]

The applicable immigration rule for refusal quoted by the judge was that my application was refused by reference to paragraph 245Z(c) and (d) relating to attributes and English language respectively.

The judge also pointed out further in the refusal note that " The one issue in relation to attributes was whether the appellant was in the United Kingdom with leave to enter or remain that was not subject to a restriction preventing him from undertaking a course and/or research throughout his period of UK study"

One thing I was actually puzzled by is the fact that whilst the first refusal letter I received from UKBA said that I did not have the right to to remain between the 30th of September 2009 - 20 November 2009, this period changed with the judge ruling. This ruling was according to the judge; "...I find that on the basis of the unchallenged evidence of the appellant that there was a period between 1 October 2009 and 18 February 2010 when he had no leave to enter or remain in the UK. The existence of that period is such that he did not meet the relevant requirement to be awarded points under Appendix A."

Even more puzzling still, although the evidence I provided were not challenged the judge acted as if they were irrelevant in light of his final verdict. He notes in the refusal letter that: "In the course of his evidence the appellant told me that his application submitted on the 29 August 2009 for leave to remain as Tier 4 (General) Student had been refused on 5 October 2009. He produced the envelop in which the decision was sent to him; it was posted on 27 October 2009 and reached him on 30 October 2009. The decision told him that he had until 19 October 2009; or that he might within 28 days lodge a new appeal. He took advice from his university a sent in a fresh application on 20 November 2009 following which he was on the 19 February 2010 given leave to remain."

In light of all the above, I feel that should my application for permission to appeal to the high tribunal be refused or indeed my appeal be dismissed, this surely will be a very big injustice!

[Boubadinhio]

@mtuckersa, you are certainly right, but unfortunately this coincided with a period of political turmoil in Guinea (where I am from) and thus my dad was not able to secure the full amount as a a result of the quasi inexistent economic activities then.
I was naively reassured by the fact that it was only August and University had not resumed, but this is obviously only a naive thought to keep my sanity I guess. It is simply crazy that despite all my best effort of getting everything right with the authorities since 2002, it must come down to this stressful situation. But God willing, I will see brighter days someday, somehow

[Boubadinhio]

Thank you for all the help guys. I really really appreciate all the advice you are currently giving me.

[vinny]

The applicable immigration rule for refusal quoted by the judge was that my application was refused by reference to paragraph 245Z(c) and (d) relating to attributes and English language respectively

Are these the correct paragraphs? I cannnot find them.

[Boubadinhio]

@ Vinny; These are indeed the correct paragraphs as stated in the documents I was sent. Yes I know, I tried to look for it in the link you gave me but couldn't find it either (Can this be a typo or a new law). I would have posted the entire letter here for you to see if it was possible. If you want, I can give you my email address, then you can send me a quick note which I will reply by sending you the entire document. Thanks.

[geriatrix]

Link to rules in effect before 06-Apr-11 changes (archive date: 17-Mar-11):

(c) The applicant must have a minimum of 75 points under paragraphs 51 to 58 of Appendix A.
(d) The applicant must have a minimum of 10 points under paragraphs 1 to 3 of Appendix B.

[Boubadinhio]

According to the judge, I did not qualify for the 75 points because of the gap in my leave to remain starting 1st October 2009. First of all, as all the evidence I have suggest, this gap was largely a result of UKBA sending me my documents late (these evidence were not challenged!).

Furthermore, how can this gap starts on the 1st of October if the documents I received said that the decision for the refusal was made on the 5 October and that I had until the 19 October to appeal? Common sense will suggest that if there is a gap, this should certainly start after the 19 October provided that I do not take any action before this deadline. Most obvious of all, how do UKBA expect me to take action before the 19 October on a decision I was only aware of on the 30 October? this is crazy!

[mulderpf]

According to the judge, I did not qualify for the 75 points because of the gap in my leave to remain starting 1st October 2009. First of all, as all the evidence I have suggest, this gap was largely a result of UKBA sending me my documents late (these evidence were not challenged!).

Furthermore, how can this gap starts on the 1st of October if the documents I received said that the decision for the refusal was made on the 5 October and that I had until the 19 October to appeal? Common sense will suggest that if there is a gap, this should certainly start after the 19 October provided that I do not take any action before this deadline. Most obvious of all, how do UKBA expect me to take action before the 19 October on a decision I was only aware of on the 30 October? this is crazy!

Having read this, I'm intrigued by your reasoning! You keep trying to blame UKBA for causing the gap and this entire issue, but if your initial application had been valid, there would be no issue. You are lucky to have been issued a new visa as you had a second chance after fixing your mistake.

[next step]

I seriously suggest that u get a solicitor if u can afford it because though it may sound like a simple misunderstanding to u, the HO can find a way to use it to ur detriment if u, especially if u r not well-versed with the law.

Though this all stems from the issue with ur tuition, they should have just simply refused u the second student visa, in that case. At least it would have made more sense then. The current refusal on the grounds of a previously refusal that was clearly overturned by the issuance of the subsequent student visa, is just ridiculous.

Do consider getting a solicitor though...seriously!

[Boubadinhio]

@ next step: Thank you for your post. I have now found a solicitor and he will be lodging on my behalf an application for permission to appeal.

I was wondering if there was any other option as well beside going with these appeals? I actually don't mind going home and re-applying for a PSW from there, but what would then be the likelihood of that working out.

[Greenie]

I think you may have been ill-advised not to appeal the original refusal in October 2009 as you have 10 days from the date of receipt to appeal, regardless of what it said on the refusal as to the deadline. However it may be that you were advised not to appeal because you didn't meet the rules and hence why you were advised to pay your fees and apply again. If this is the case then your argument is weaker - you were refused because you didn't meet the rules the first time around, hence why you then had to overstay in order to meet the rules.

I think it is important to recognise the distinction here between being refused PSW because you overstayed and being refused because you did not have valid leave during the duration of your studies.

If they had refused you because you had previously overstayed, despite the fact that they subsequently granted you leave to remain following the overstay, then you would have a stronger argument.

In fact they have refused you because you did not have valid leave/leave permitting you to study for the duration of your course, and therefore you do not meet the points requirements for PSW. This doesn't mean that you won't succeed and that it's not worth trying but I don't think your chances are particularly high.

there is no point trying to apply from outside the UK, you'll be refused for the same reason.

[Boubadinhio]

"In fact they have refused you because you did not have valid leave/leave permitting you to study for the duration of your course, and therefore you do not meet the points requirements for PSW."

My course was from beginning of September 2009 - December 2010. According to the HO I did not have valid leave from the 30 September 2009 to the 20 November 2009, according to the judge I did not have valid leave from the 1st of October 2009 to the 19 February 2010 (when I was issue a new visa)...it wasn't for the whole duration of my course that I did not have valid leave to remain for.

In any case, I understand the point you are trying to make and it is a fair one..hopefully I will find a solution at some point.

[Boubadinhio]

@Greenie: you are making a very good point indeed.

[Greenie]

"In fact they have refused you because you did not have valid leave/leave permitting you to study for the duration of your course, and therefore you do not meet the points requirements for PSW."

My course was from beginning of September 2009 - December 2010. According to the HO I did not have valid leave from the 30 September 2009 to the 20 November 2009, according to the judge I did not have valid leave from the 1st of October 2009 to the 19 February 2010 (when I was issue a new visa)...it wasn't for the whole duration of my course that I did not have valid leave to remain for.

In any case, I understand the point you are trying to make and it is a fair one..hopefully I will find a solution at some point.

you have misunderstood what i have said/the requirement. the requirement is that you have leave that permits you to study for the duration of the course (i.e. from the beginning of the course, until the end of the course). I understand that you had a visa for some of the course, but the problem is, you didn't have a visa for all of it

[Boubadinhio]

Thanks for the clarification.

[next step]

Quick Qs: What visa were u studying/enrolled under btwn 30 Sep 2009 to 20 Nov 2009 if u didnt submit ur student visa application until 20 Nov 2009?

[Boubadinhio]

I heard back from the HO on the 30th of October 2009 (date at which I received the documents) and I lodged a new application following the advice of my Uni on the 20 November 2009. Thus, I think that I was still on a student visa since the law says that if you are going through an appeal or have lodge in a new application, your old status will still remain (pls rectify me if I am wrong, I am sure I may be). But then again, I guess my situation is an unusual one, I guess.

[Boubadinhio]

Until the 30th of October, I didn't know whether my student visa application of August 2009 was successful or not since the HO still had my documents. Just to give you more clarification.

[vinny]

I heard back from the HO on the 30th of October 2009 (date at which I received the documents) and I lodged a new application following the advice of my Uni on the 20 November 2009. Thus, I think that I was still on a student visa since the law says that if you are going through an appeal or have lodge in a new application, your old status will still remain (pls rectify me if I am wrong, I am sure I may be). But then again, I guess my situation is an unusual one, I guess.

I don't think that Section 3C covers a new application, when leave had already expired.