Fresh Application while having a pending appeal

[Rockefeller]

Hello everyone,

This is about my wife's immigration matter and we would appreciate your assistance.

My wife arrived in the UK in March 2004 on student visa. She has remained lawful up to this day. She has always made application to renew her visa in time which is a combination of student visa, work permit and PSW. The last and current visa is a tier 4 which is valid until September 2013.
In August last year my wife made a family life application as a parent of child who has lived in the UK for 7 years but unfortunately that application was refused in June 2013 solely because she does not have a sole responsibility of our son. However, she was granted an appeal which has since be submitted.
Now, in order to keep her status in the UK lawful (ahead of 10 year LR in March 2014) should the appeal is dismissed and further appeal to higher courts is refused we are currently considering making a fresh tier 4 application.
My question now is it possible to make a fresh tier 4 application while having an outstanding appeal and she still have a valid to remain and does it matter that the grounds of application being appealed is completely different from the fresh application we are planning to submit.



Thanks for your assistant

[Obie]

Sounds very strange, i cannot envisage why they will refuse on that basis.

What is your status in the UK?

Yes she can make a new application as Section 3D does not apply to her,as she has a valid leave.

[vinny]

If she still has leave remaining, then she should not have been granted a right of appeal?

If her leave was curtailed, then see also Section 3C/3D.

[Obie]

Interesting, it is questionable whether the Tribunal will have jurisdiction to entertain this appeal in circumstances where you have an existing leave to remain.But a new application can be made.

If your case is strong and your appeal is allowed, it will be interesting if UKBA refuse to implement the decision of such, even though it would have been clear that the original decidion was clearly flawed.

[Rockefeller]

Thanks Obie and Vinny

Her leave to remain has not been curtailed and yes the reason for the refusal is as stated.

Vinny, I'm confused as well as to whether she should have been given an appeal and whether tribunal would have a jurisdiction to hear the appeal.

Obie, I had a tier 4(on my own right) which lapsed in February when my in time FLR O application was pending but was not given an appeal. I submitted an appeal anyway under Nationality, Immigration and Asylum Act 2002 (82(2)(d)).

Someone has advised to vary the grounds of the pending appeal as fresh application will not be allowed. Is this the best approach?

[Obie]

Section 3D4 prevent further applications from being made or varied if you have a section 3D right.

The refusal makes no sense to me at all.

[vinny]

Obie, I had a tier 4(on my own right) which lapsed in February when my in time FLR O application was pending but was not given an appeal. I submitted an appeal anyway under Nationality, Immigration and Asylum Act 2002 (82(2)(d)).

In your case, you should have had a right of appeal.