Ilr appeal allowed from FTT, What now

[Yashaccounts]

Dear moderators and experts in this form kindly look into my case advise further. Please spare few minutes to help my family


DETERMINATION AND REASONS

1) the appellant a national of India was granted leave to remain in the U.K until 6th august 2015. In 2014 he left uk ,his leave remaining in force . On his return on 24th November 2014 his leave was cancelled by an officer citing and relying on paragraph 321a of the statements of changes in immigration rules ,Hc 395 as amended. The appellant appealed , unsuccessfully and was refused permission to appeal to the ut. The later decision was successfully challenged by a claim for judicial review , following he was granted permission.

2)we note however, that allowing the appeal should not be taken itself to indicate that the appellant has current leave. As we understand the matter , of the decision under appeal is reversed, his leave has nevertheless expired; we are not invited to determine wether 3D of the 1971 act should be read to include cancellation of leave , a concept not apparent on his face
3) appeal allowed


Questions

Decision rcvd in writing 14 weeks ago
Current visa expired
Reporting fortnightly
3 dependents pending home office applications for Ltr

Should I apply 10 years route or Ilr ?

Please share your view
Appreciate for reading

Hima

[CR001]

What is your FULL immigration history and ALL visas you have held and the start and expiry dates of each?

[Yashaccounts]

Hi

Student visa 2007 -2009
Post study work visa -2009-2011
Tier -1 general 2010-2012
Tier -1 extension 2012- august 2015
Visa cancellation on 24th Nov 2014 in airport due to deception on first application. Then decision appealed twice in two courts , finally got allowed. During this process of 2.5 years , my current visa expired.

Now the plan is to apply on 10 years route or Ilr with 12 months salary.

My son is 6 year old and my daughter is 18months as she born prematurely, we have contacted local Mp , then my dependents managed to limited visa not covered by immigration rules due to health issues.

Pls suggest best way of approaching my situation.

Ragards
Hima

[vinny]

2)we note however, that allowing the appeal should not be taken itself to indicate that the appellant has current leave. As we understand the matter , of the decision under appeal is reversed, his leave has nevertheless expired; we are not invited to determine wether 3D of the 1971 act should be read to include cancellation of leave , a concept not apparent on his face

Unfortunately, an Immigration Officer's cancellation of leave at port does not appear to engage Section 3D.

d. The appellant is deemed not to have entered the United Kingdom on his return in April (see s.11(1) Immigration Act 1971) and thus was not remaining in breach of the terms of his leave pending an appeal.

However, if they subsequently grant leave after temporary admission, then you may be eligible under Long residence.

Definition of continuous lawful residence
Lawful residence is defined in paragraph 276A of the Immigration Rules as a period of continuous residence in which the applicant had one of the following:
• existing leave to enter or remain
• temporary admission within section 11 of the 1971 Immigration Act where leave to enter or remain is subsequently granted
• an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain

[Obie]

I would think, that if cancellation is deemed unlawful, then one will return to the default position, surely.

[vinny]

But what is the default position when his/her leave has expired?

[Obie]

You have a point. Those representing her, should have advised her to make a new application after the original leave expires, as they know section 3D is not engaged. This way, she would have got a good case that any application refused on the basis of no lawful leave, will now be unlawful and he/she will be treated as a person holding section 3C leave.

It is besides me, that on a proper reading on the law, section 3D does not cover these cases.

[vinny]

Those representing her, should have advised her to make a new application after the original leave expires, as they know section 3D is not engaged.

2)we note however, that allowing the appeal should not be taken itself to indicate that the appellant has current leave. As we understand the matter , of the decision under appeal is reversed, his leave has nevertheless expired; we are not invited to determine wether 3D of the 1971 act should be read to include cancellation of leave , a concept not apparent on his face

It was a concept not apparent to the judge and perhaps also unapparent to those representing the OP?

I'm not sure what the next move is?

[Obie]

Can something that has been cancelled, expire ?

I believe Justice require, that the Op be given at least 60 days to regularise his status, and that any overstaying under after that 60 days not be held against him in any future immigration or citizenship application.

[Obie]

Furthermore, i believe this judge may have misdirected him or herself.
under Fiaz (cancellation of leave to remain - fairness), the judge was required to determine if curtailment was an option open to the Immigration officer as opposed to cancellation. If it was, then her or she ought to have made such finding. She ought to have stated that as a result of the cancellation being unlawful, the decision remains outstanding awaiting a lawful decision, and as a result, section 3D will be engaged. He should have said a lawful decision is awaiting, and that the SSHD should consider a 60 days leave.

In not doing so, and living the OP in this legal limbo, the judge might have misdirected him or herself.

IN circumstance like this, where there is a finding that cancellation was wrong, the judge ought to have allowed the appeal, say the case remain outstanding in light of the findings, for the Immigration officer to consider curtailment, and to consider that in the light of her finding.

In doing so, it will compel the respondent to issue at least a 60 days, or will allow the OP to be able to vary leave under Section 3C(4).

[Yashaccounts]

Dear Moderators,


Apologies for the delay in response.

Home office Granted 6 months (Tier 1 general) leave on the same basis. Now i am eligible under 10 years ILR ROUTE AND TIER 1 GENERAL. I have got all necessary documents. Should i go for same day 10 year route or Tier 1 route which one is safer based on my previous issue (deception allaegation ) not guility.


Please suggest for the best route.

I really appreciate every one effort in reading my matter.