Judicial review when ILR application undecided

[ddeshaval]

Hello All,

Please help!

Initially my ILR was rejected on 1 april 2016 on same day as I have done amendment for year 2012-13 as it was not filed at all. Realised at the time ILR and submitted and paid all on HMRC. Also provided my SA302 to home office. Apart from that year 2010-11, year 2011-12 were filed correctly and after that was fully employed.

My visa got expired on 6th April 2016.

I applied for AR on 14th april 2016, But got rejected on 13th May 2016 with same grounds section 322 (5).

So, under section 3c I have reapplied for ILR set (o) 7th June 2016 (No work right) and had my interview on 12th January 2017. After that application is still in progress. Been through local MP in July 2017 and Home office replied saying complex issue so it will take more time

Can you please let me know what are my options as I don't want to wait more. Can I go through solicitor and file for JR. Or if any other suggestions would be much appreciated. I will complete my 10 years in feb 2018, just for your info.

Regards
DD

[zimba]

As it has been repeated MANY time on the forum JR has nothing to do with immigration rules so you must pursue that on your own. However as your application is not decided, what would be the basis of your JR ???! It seems people on this forum do not understand what JR actually is.

Secondly you will not complete 10 years of lawful residence at all as your section 3c ended and you have been an overstayer since June 2016. That is when your lawful residence clock has stopped. Having a pending valid application does not mean that your lawful residence continues

[ddeshaval]

Thank you for your reply.

Does it mean that I cant do anything until my application is decided?

[zimba]

Yes. You are an overstayer and cannot change that for now.

[ddeshaval]

Thanks for you response.

But I was told to go to solicitor and he can file JR as home office is taking longer to decide. They will file JR on basis that home office is taking more time and ask them to make decision.

is that true? or I can only go for JR when decision is made?

[CR001]

You need to file/send a pre action protocol first. There are very specific steps you need to take to do this.

https://www.gov.uk/government/publicati ... ial-review

[zimba]

Thanks for you response.

But I was told to go to solicitor and he can file JR as home office is taking longer to decide. They will file JR on basis that home office is taking more time and ask them to make decision.

is that true? or I can only go for JR when decision is made?

You cannot take a legal action against HO for delaying a decision

[Obie]

As you applied for ILR long residence, you may get a right of appeal, which will help save your long residence.

I fail to see how JR will assist, as you did the amendment post refusal, and it difficult to envisage how the Home Office decision can be said to be irrational or wednesbury unreasonable in circumstance where the amendment was done post decision.

[zimba]

As you applied for ILR long residence, you may get a right of appeal, which will help save your long residence.

OP has applied for an out-of-time application under SET(O) not SET(LR)

[Obie]

As you applied for ILR long residence, you may get a right of appeal, which will help save your long residence.

OP has applied for an out-of-time application under SET(O) not SET(LR)

You are very correct, thanks for pointing that out, my mind went away from the changes that they did, which provide for a new application for Long residence application.

The second application was not out of time, as it was made under 28 days of the Section 3C coming to an end.

[zimba]

You are very correct, thanks for pointing that out, my mind went away from the changes that they did, which provide for a new application for Long residence application.
The second application was not out of time, as it was made under 28 days of the Section 3C coming to an end.

No problem.
However the application was indeed made out of time. An application sent within 28 days grace period (14 days under current rules) is not an intime application and will not extend section 3C and therefore the applicant is not considered a lawful resident since June 2016, hence a SET(LR) application is not possible. Such period of overstaying however will be ignored only if he regularises his status which means his current SET(O) must eventually succeed. This will render any future ILR application such as SET(LR) redundant.

[Obie]

You are very correct, thanks for pointing that out, my mind went away from the changes that they did, which provide for a new application for Long residence application.
The second application was not out of time, as it was made under 28 days of the Section 3C coming to an end.

No problem.
However the application was indeed made out of time. An application sent within 28 days grace period (14 days under current rules) is not an intime application and will not extend section 3C and therefore the applicant is not considered a lawful resident since June 2016, hence a SET(LR) application is not possible. Such period of overstaying however will be ignored only if he regularises his status which means his current SET(O) must eventually succeed. This will render any future ILR application such as SET(LR) redundant.

I accept that he application will not invoke Section 3C, but it cannot be described as out of time, as the rules in place consider an application made within 28 days of Section 3C expiring, to be treated as in time, therefore within the framework of the rules, the application was in time, although section 3c is not engaged. I believe 13-05-2016 to 07-06-2016 is less than 28 days, but the question is whether OP had section SC on the 13-05-2016.

I believe he may well be out of time but for a reason which is different from yours.

OP extant leave was valid at the time before he lodged the administrative review and at the time the Home Office refused him. He ought to have put in a new application after that to engage Section 3C, as the law has changed to make it clear that if a person's application is refused before their leave expires but they are given an appeal right or an admin review rights, then section 3C will not be engaged. So there may be a problem which OP or his legal advisers may not be aware of.

[zimba]

I accept that he application will not invoke Section 3C, but it cannot be described as out of time, as the rules in place consider an application made within 28 days of Section 3C expiring, to be treated as in time, therefore within the framework of the rules, the application was in time, although section 3c is not engaged.

Can you kindly point me to the rule that says such application is considered in-time ? Almost all the HO guides say that an application is only in-time if the applicant had valid leave when applied. Also does that mean such period will count towards lawful stay for example under SET(LR) ?!

I believe he may well be out of time but for a reason which is different from yours.

OP extant leave was valid at the time before he lodged the administrative review and at the time the Home Office refused him. He ought to have put in a new application after that to engage Section 3C, as the law has changed to make it clear that if a person's application is refused before their leave expires but they are given an appeal right or an admin review rights, then section 3C will not be engaged. So there may be a problem which OP or his legal advisers may not be aware of.

That is very true. It seems Section 3C never got engaged during AR and the period between 6th April 2016 and 7th June 2016 is more than 28 days. This means the current pending SET(O) application fall for automatic refusal, no ?!

[Obie]

My point is that under the rules in place before the 24-11-2016, an application made within 28 days of a person's leave expiring is classified as an in-time application, for purpose of the rule. Under the Act itself the person is without leave and they are, to all intent and purposes an over stayer, but the rules provides that an application they make within 28 days will not be treated as an out of time application.

That is the simple point i am making. It is obviously the law, and i am sure it is not in dispute, that during that 28 days, section 3C is not engaged and the person is without leave.

I hope you understand my point.

[zimba]

Sure. Got what you mean

[ddeshaval]

Thanks you guys for all the responses.

So, R u guys saying my application is invalid and it will be rejected? And also I will not have any options for judicial review after that?

[ddeshaval]

My point is that under the rules in place before the 24-11-2016, an application made within 28 days of a person's leave expiring is classified as an in-time application, for purpose of the rule. Under the Act itself the person is without leave and they are, to all intent and purposes an over stayer, but the rules provides that an application they make within 28 days will not be treated as an out of time application.

That is the simple point i am making. It is obviously the law, and i am sure it is not in dispute, that during that 28 days, section 3C is not engaged and the person is without leave.

I hope you understand my point.

Thanks for your response.

So, R u saying my application is invalid and it will be rejected? And also I will not have any options for judicial review after that?

[zimba]

Well that is what it looks like. You applied more than 28 days of becoming an overstayer which would lead to an automatic refusal.