Flr M refused on the grounds of human rights

[manci]

I just got her refusal, if you want I can attach it.

Please do, blanking out personal details

[zidane]

If an application was out-of-time, then Section 3C was not applicable.

thank you vinny, The application was within the grace period .

[zidane]

(OP, do you have any confirmation of the date of application for the FLR(FP) application?).


The operative bit is the first part; that the varied application (FLR(M)) is taken to have the same application date as the original application (FLR(FP)).

So, back to the OP. Do you have any documentary proof of the date that the Home Office has entered as the date of application for the FLR(FP) application?

let me attach the refusal letter and the flr fp acknowledgement letter. the refusal letter does not give any elaboration as to which period was overstaying period.
i went to see a solicitor today he was shcked to see the refusal and said that even though 3c doesnot continue the 28 grace period has covered any overstaying within that time and no overstaying was more than that period.



unfortunately i am unable to attach the picture , its saying not allowed i tried both jpg and pdf. admin can you kindly help with this.

[CR001]

If an application was out-of-time, then Section 3C was not applicable.

thank you vinny, The application was within the grace period .

If an application was made after a visa expired (even within the "grace period", it is still an out of time application and 3C does not apply.

[zidane]

If an application was out-of-time, then Section 3C was not applicable.

thank you vinny, The application was within the grace period .

If an application was made after a visa expired (even within the "grace period", it is still an out of time application and 3C does not apply.

thank you cr001 , so what do you reckon is the likely hood of appeal winning , also do you recommend oral or on paper, and what should be the core argument from our side.??

I am trying to upload the images for refusal, hopefuly that should clarify a few things as you guys have more knowledge than i do .

thank you

[zidane]

attached are the letter of acknowledgement for flr fp and the refusal letter.

[Abc499]

@zidane
Any idea why they did not mention the flr(o) application and start with 10th Aug you applied.......
if possible then can you pls also share your wife's flr(o) outcome (invalid/refused/rejected etc.) then the scenario will be complete here.

[zidane]

@zidane
Any idea why they did not mention the flr(o) application and start with 10th Aug you applied.......
if possible then can you pls also share your wife's flr(o) outcome (invalid/refused/rejected etc.) then the scenario will be complete here.

Thanks ABC , as mentioned earlier the flro was submitted in time of a valid tier 4 dependent visa which was refused on the 13th of july , after which the flr fp was applied.

Its actually a very good point you made here. I dont know why they didnt mention. Even the refusal she has mentioned under what paragraph my wife is not eligible but never mentioned what period was regarded as overstaying. Not one of the clearest refusals.

[Abc499]

Make sure her flr (o) was not rejected/ invalid as this could make different story probably.

[secret.simon]

Make sure her flr (o) was not rejected/ invalid

Good question.

There is a difference between rejection and invalidity.

If the application was rejected, the applicant had Section 3C leave till the date of rejection.

If the application was invalid, there was no Section 3C leave, as the application, not being valid, effectively did not exist.

To the OP: can you publish (suitably obscured) the letter regarding the FLR(O)?

For reference

E-LTRP.2.2. The applicant must not be in the UK –
...
(b) in breach of immigration laws (except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded), unless paragraph EX.1. applies.

39E. This paragraph applies where:
(2) the application was made: (a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

Now I can't find any record of there being any transitional provision for the 28-day grace in this part of the Immigration Rules. So, I am guessing that that is the way the caseworker went. S/he applied the current rules to your application made before the changes came into effect.

Here is an article on the changes that came into effect in November 2016.

[Obie]

It makes no sense for there to be a transitional provision as thus rules applies to overstaying ending on the day the rules came into effect, so those that apply before that dareally and had an overstay of 28 days or under will be fine anyway.

Where clarification is required in cases associated with 276B , the rules clearly did so , and made a distinction between overstaying ending before the 24-11-2016 and those that occurred after.

[zidane]

thank you guys .

The flr o was a valid application but was refused

I shall get hold of the Flr o letter tomorrow morning and will post it here.

Also i want to add one point here which i just remembered . When I applied for flr fp i was sent a section 12 of the application form back which was one page relating to children in the uk i guess which i had crossed out and wrote N/A when i initially submitted the application . The post contained a green sticker with caseworkers reference and asking us to post the information to them within seven days otherwise the application will be invalidated, I wrote a cover letter explaining that this section does not apply to our case and i had clearly mentioned it , that was careless of them as i know i filled everything up and reviwed the form completely more than one time to check for any errors . I posted them that bit of required information on the 11th of November. I have the proof of post for this too.

I don't see how the above can be a reason for refusal, but just wanted to mention .


Obie I guess that works in my favor then ??

[secret.simon]

Interesting piece of research. I am sure Obie and other people learned in the law can expand on this.

Unless transitional arrangements are put in place, it seems applications must meet the requirements of the Immigration Rules on the date of decision, not the date of application.

Assuming that this judgment was not overturned, then the decision to refuse your wife's FLR(M) might well be correct in law.

[Obie]

Interesting piece of research. I am sure Obie and other people learned in the law can expand on this.

Unless transitional arrangements are put in place, it seems applications must meet the requirements of the Immigration Rules on the date of decision, not the date of application.

Assuming that this judgment was not overturned, then the decision to refuse your wife's FLR(M) might well be correct in law.

Simon you should try not to stress over these things.

The government indeed put Transitional Provisions in place.

The changes to Part 1 set out in paragraph 1.11 of this statement, to Part 3 set out in
paragraphs 3.1 and 3.2, to Part 4 set out in paragraphs 4.1 and 4.2, to Part 5 set out in
paragraphs 5.1 to 5.8, 5.10, 5.13, 5.14 and 5.21 to 5.29, to Part 6A set out in
paragraphs 6A.1 and 6A.2, 6A.4 to 6A.10, 6A.12, 6A.17 , 6A.18, 6A.23, 6A.26,
6A.27, 6A.29, 6A.33, 6A.35, 6A.37 and 6A.38, to Part 7 set out in paragraphs 7.1 to
7.8, 7.11 and 7.13 to 7.17, to Part 8 set out in paragraphs 8.6, 8.13, 8.17, 8.18 and
8.21 to 8.25, to Part 14 set out in paragraphs 14.1 and 14.2, to Appendix Armed
Forces set out in AF4 to AF11, to Appendix FM set out in paragraphs FM5, FM14,
FM15, FM29, FM31, FM33, FM35, FM37, FM39, FM45, FM47 and FM48, to
Appendix FM-SE set out in paragraph FM-SE23, and to Appendix V set in paragraph
V.8, shall take effect from 24 November 2016, but will only apply to applications
made on or after 24 November 2016.

FM14. In paragraph E-LTRP.2.2.(b) for “(disregarding any period of overstaying for
a period of 28 days or less)” substitute “(except that, where paragraph 39E of
these Rules applies, any current period of overstaying will be disregarded)”.

I suggest we live the question of law in regards to Transitional provision for another day, so as not to hijack this thread by dealing with an issue which is not engaged here.

[zidane]

Guys I just noticed on the refusal letter for FLR O it said apply within 14 days of the refusal letter but i applied within 28 days .

Can this be the reason for the refusal i.e. 28th July on wards my wife was illegal , but I am confused why there was 14 day in the letter and whether the 28 days grace period that was active at that time can override this 14 days period mentioned in the notice .

I have circled in the picture (not the best quality , sorry )

Please advise

Thank you all for your input.

[zidane]

Respected Members ,

Please let me know as i have to appeal within a day or two tops.

I am going to appeal orally and i am making grounds of appeal . for some reason the online iaft5 form is giving java error so i have to post it on the 14th day which is 8th of Feb.

I will raise the 14 days was not valid to be applied as the application was not a fresh one rather a variation.

also on the refusal of flr O it mentioned to apply within 14 days but i still allied within 28 days i was confused as to how they used 14 instead of 28 days. i think this is where i made a mistake . but within the refusal of flr o it also said that you have a valid leave . so there was error within the refusal itself.

I will also raise that the current refusal is not clear as to what period has been regarded as over stayer.



I am aware that the above may not be solid grounds, but these are the only grounds I can use according to my knowledge. If there is anything else that would make the case stronger please let me know , I have attached all the documents in previous posts.


Thank you all.