Spouse Visa refused with no right to appeal. Kindly advise.

[KriKat]

Hello all,

I am an Indian National and came to the UK on a student visa to study my masters in design, whilst I was in the UK I met my now husband(British National) and we fell in love , when my student visa was about to expire, I enrolled myself onto another course and applied for an extension (student leave to remain) on the basis of that however I was refused the visa on the basis of financial maintenance ( I had the necessary funds in my account but were not present 28 days before the application, I had them for 28 days after the application).
I was given a right to appeal and we did appeal against the decision, although my partner proposed and we got married. The university I was studying in got hit by financial crisis and had to shut down so we withdrew my appeal and made a fresh application for a spouse visa within the 28 days grace period. I was refused the spouse visa without a right to appeal, they stated that there is no such thing as a 28 day grace period after an appeal.

I have now become an overstayer since 10 December 2014, I am leaving to India voluntarily on the coming 26th , I want to know what are my chances of coming back to the UK on the basis of entry clearance and how long does the procedure take?

Will my overstay be a hinderance in my application?

Thanks

[KriKat]

[quote="KriKat"]Hello all,

I am an Indian National and came to the UK on a student visa to study my masters in design, whilst I was in the UK I met my now husband(British National) and we fell in love , when my student visa was about to expire, I enrolled myself onto another course and applied for an extension (student leave to remain) on the basis of that however I was refused the visa on the basis of financial maintenance ( I had the necessary funds in my account but were not present 28 days before the application, I had them for 28 days after the application).
I was given a right to appeal and we did appeal against the decision, although my partner proposed and we got married. The university I was studying in got hit by financial crisis and had to shut down so we withdrew my appeal and made a fresh application for a spouse visa within the 28 days grace period. I was refused the spouse visa without a right to appeal, they stated that there is no such thing as a 28 day grace period after an appeal.

I have now become an overstayer since 10 December 2014, I am leaving to India voluntarily on the coming 26th , I want to know what are my chances of coming back to the UK on the basis of entry clearance and how long does the procedure take?

Will my overstay be a hinderance in my application?

Thanks[/quote]

[Obie]

Well the decision is clearly wrong.

I will suggest you send a Pre-action protocol and then a Judicial review.

Any overstay under 28 days is ignored for the purpose of making an in country application.

The refusal is wholly unlawful.

[KriKat]

Thank you Obie.

My husband was self employed before the application but was working full time at the time of application, my lawyer did say that the application will could get refused on that basis but I should have the right to appeal (that would buy us time and by the time the refusal comes in my husband would have the required payslips and would be able to fulfil the criteria ) but having no right to appeal was a bit odd to me and my lawyer as well.

Also I think my lawyer has messed up a bit cause I fulfilled all the formalities in time with her, but she sent my application in on the last day of my grace period and it was received by the home office out of the grace period - to which she said it is the date of sending the post that is considered not the date by which it is received, after she received my refusal letter she did not inform me for about a month regarding that and tried to put in a request for an appeal without my consent, I don't know how to deal with this.

Which was later refused by the tribunal saying that there is no such thing as a 28 days of grace after you withdraw your appeal.

To be honest all this seems very odd to me and would like some advise on how to deal with it.

Thanks for your help.

[vinny]

Prior to the withdrawal of the appeal, you had leave under Section 3C/3D. If you made (34G) an appliction within 28 days from the withdrawal of the appeal, then E-LTRP.2.2(b) applies.

Unfortunately, however, the lawyer was wrong to think that an out of time application has a right of appeal.

[KriKat]

Prior to the withdrawal of the appeal, you had leave under Section 3C/3D. If you made (34G) an appliction within 28 days from the withdrawal of the appeal, then E-LTRP.2.2(b) applies.

Hi Vinny Thank for your response

would you be able to explain me that a bit as I am unable to understand the technical language.

[Obie]

The tribunal was right in that respect, but if was the secretary of state that said that, they would have erred.

It is strange that the lawyer asked you to withdraw your appeal when the chances of a successful application was slim.

Why did Home Office refuse? Did they say you had overstayed? If that was their basis , then JR is the way forward as that is wrong.

I am surprised that a competent lawyer will use the 28 days rule against the Tribunal.

[vinny]

Do click on the given links for more details.

[vinny]

Moreover, ideally, you should have waited until your husband fulfilled the spouse requirements before withdrawing the Tier 4 appeal. Even if you went on to lose your Tier 4 appeal, you would have had more time to fulfill the spouse requirements.

It didn't make sense to make an out-of-time application before all the requirements were met.

[Obie]

It appear that the lawyer got muddled up with the law.

Should have continued the previous appeal so as to give your husband time to gather the necessary evidence, as there is no second change if you mess up the 28 days overstaying windows.

The thought of such poor advise really scares me, especially when it derives from an expert in law.