ILR Refused for 67days latness

[jei2]

Sosolid, are you from an EEA country? You mention the change in long residence concession. the 10-year ILR rule is no longer a concession and unless they have changed the nature of the rule itself, i.e. they no longer require continuous 10 year legal residence, then any out of time period breaks this 10 year of continuous leave.

A caseworker exercising his discretion does not bind another caseworker's decision. That's the very definition of discretion.

I agree. Your friend just got lucky. Why rock his boat?

[sosolid1234]

The case referred to by Vinny is a carbon copy of my situation only difference is hers/his was out of the country and mine was in and the Judge allowed the appeal.

Jei2, i agree there is no reason to rock his boat but he offered. But if it will affect him then I wont bother using his case as reference

[paulp]

The case referred to by Vinny is a carbon copy of my situation only difference is hers/his was out of the country and mine was in and the Judge allowed the appeal.

sosolid, it is a big difference, being in country and out of leave means that you were an overstayer.

[sosolid1234]

The case referred to by Vinny is a carbon copy of my situation only difference is hers/his was out of the country and mine was in and the Judge allowed the appeal.

sosolid, it is a big difference, being in country and out of leave means that you were an overstayer.

Okay that's a valid point, but the case still points to the fact that the visas were renewed. Also, i had not finished the reason I took the initial visa which was to study.

Do i have a case if I appeal?

[paulp]

Okay that's a valid point, but the case still points to the fact that the visas were renewed. Also, i had not finished the reason I took the initial visa which was to study.

Do i have a case if I appeal?

I wouldn't rate your chances highly but in your case, you should be relying on advice from a good immigration professional who knows all the details of your case.

[sosolid1234]

Hi,

If the high court informs the Appeal court to reconsider my case is it possible for the appeal court to go negative twice?

I went to the tribunal who refused my case and then Appeal who also refused my case and then the Appeal court which has turned around my case and informed the Appeal court to reconsider my case and that I have an arguable case.

My question is what will the appeal court likely come up with, can they refuse my case again?

[sosolid1234]

The case referred to by Vinny is a carbon copy of my situation only difference is hers/his was out of the country and mine was in and the Judge allowed the appeal.

sosolid, it is a big difference, being in country and out of leave means that you were an overstayer.

Hi Paula,

What is the difference the Visa still expired in country or Out of country and was renewed by an immigration officer. The main point is that the Visa expired before renewal.

[paulp]

Hi Paula,

What is the difference the Visa still expired in country or Out of country and was renewed by an immigration officer. The main point is that the Visa expired before renewal.

SoSolid, it's paulp, not paula. The big difference is that you were an overstayer, i.e. illegally resident in the country, the opposite of legal of which you need 10 continuous years to qualify for the 10 year ILR. No other visa application can change illegal into legal I'm afraid.

[sosolid1234]

Hi Paula,

What is the difference the Visa still expired in country or Out of country and was renewed by an immigration officer. The main point is that the Visa expired before renewal.

SoSolid, it's paulp, not paula. The big difference is that you were an overstayer, i.e. illegally resident in the country, the opposite of legal of which you need 10 continuous years to qualify for the 10 year ILR. No other visa application can change illegal into legal I'm afraid.

Hi Paulp,

So are you saying that the fact that my Visas were subsequently granted does not count for any thing and I was an illegal resident since 2002 when i submitted late.

Also a note taking into account what Lord Avebury pointed out in house of lords http://www.theyworkforyou.com/lords/?id ... 3-17a.87.2
"A 28-day grace period will be included in the Immigration Rules as part of the tier 1 process in March 2008 ... This will allow those who send their applications within 28 days of their leave expiring to continue with their application. That is a very helpful approach on our part, which will probably be welcomed, not least by immigration law practitioners".—[Official Report, 16/10/07; col. 661.]

He repeated that assurance later, making it crystal clear that the 28-day period would allow a person whose application had been rejected because of an inadvertent clerical error or the submission of the wrong document to put in a new application within 28 days. When I put that to him, he replied:

"Yes, my Lords, that is what I am saying".—[Official Report, 23/10/07; col. 996.]


Also Baroness Warwick of Undercliffe mentioned the follwoing
"However, it is not all bad news. Following lobbying by Universities UK and the UK Council for International Student Affairs—UKCISA—we were pleased and relieved when, in January 2008, the BIA announced at the joint education taskforce meeting:

"Applications received within 28 days of the expiry of leave will be considered in the normal way ... those within 6 months in exceptional circumstances, but those outside that period, refused".

[paulp]

Hi Paulp,

So are you saying that the fact that my Visas were subsequently granted does not count for any thing and I was an illegal resident since 2002 when i submitted late.

Sosolid, you were an illegal immigrant during the periods for which you didn't have any leave (and hadn't applied for FLR before leave expired).

You are quoting material for further applications of FLR, not the 10-year ILR category I'm afraid. The 10-year ILR category calls for 10 years of continuous legal residence. You do not have 10 continuous years because of these small periods of illegal residence.

You may be lucky and get a lenient caseworker who's prepared to use his discretion but the home office is now cracking down severely on overstayers. You only need to check out the automatic bans on overstayers that was supposed to start in April but there is now a concession running till October.

[sosolid1234]

Thanks Paulp,

I have had both my cases refused Tribunal and appeal, but the high court granted my reconsideration pointing out that I had a case. What does that mean for me?

What will the appeal do now since they have to reconsider my case?. everything you said is what they argued and what i siad is what i argued and the High court was in my favour.

What do you think the appeal can come up with next?

[paulp]

Thanks Paulp,

I have had both my cases refused Tribunal and appeal, but the high court granted my reconsideration pointing out that I had a case. What does that mean for me?

What will the appeal do now since they have to reconsider my case?. everything you said is what they argued and what i siad is what i argued and the High court was in my favour.

What do you think the appeal can come up with next?

Can you give us a little more information on the basis that the High Court is using to ask for a reconsideration? Is is a reconsideration by the HO or is it back to the tribunal?

[sosolid1234]

Thanks Paulp,

I have had both my cases refused Tribunal and appeal, but the high court granted my reconsideration pointing out that I had a case. What does that mean for me?

What will the appeal do now since they have to reconsider my case?. everything you said is what they argued and what i siad is what i argued and the High court was in my favour.

What do you think the appeal can come up with next?

Can you give us a little more information on the basis that the High Court is using to ask for a reconsideration? Is is a reconsideration by the HO or is it back to the tribunal?

Back to the tribunal, basically it is based upon the change in terms of the long-residence concession i got a reconsideration on. When the application were made late the concessions were in place and therefore the fact that I am applying for ILR based on the 10yrs the old concession applies to me and not to the fact that the concessions have been removed. Moreover, the concession is silent and not removed, so that needs to be clarified.

As far as I know the fact that all the case you have mention and i as well have argued and mentioned have been upheld by the high court ,not sure how it works in the UK, but the tribunal cannot use their initial argument of "out of time" as a basis of refusal again if I am right.

what do you reckon?

[paulp]

Back to the tribunal, basically it is based upon the change in terms of the long-residence concession i got a reconsideration on. When the application were made late the concessions were in place and therefore the fact that I am applying for ILR based on the 10yrs the old concession applies to me and not to the fact that the concessions have been removed. Moreover, the concession is silent and not removed, so that needs to be clarified.

As far as I know the fact that all the case you have mention and i as well have argued and mentioned have been upheld by the high court ,not sure how it works in the UK, but the tribunal cannot use their initial argument of "out of time" as a basis of refusal again if I am right.

what do you reckon?

If the High Court has asked for an area to be clarified, I don't see how that prevents the HO from saying you do not have 10 years of legal residence.

Can you point us to any information of the "change in terms of the long residence concession"? The granting of ILR after 10 years of continuous legal residence used to be a concession (unwritten rule) and is now a rule and appears in the IDIs. When did the change happen?

[sosolid1234]

Hi Paulp

The high court actually said
"The ground based upon the change in the terms of the long-residence concession is more challenging. I find ---- Senior Judges reasons for refusing to order a reconsideration to be congent and probably correct:but I cannot say that the submission made on behalf of the Applicant are unarguable"

Reading the above what do you think the reasons from the tribunal will be.

[paulp]

Hi Paulp

The high court actually said
"The ground based upon the change in the terms of the long-residence concession is more challenging. I find ---- Senior Judges reasons for refusing to order a reconsideration to be congent and probably correct:but I cannot say that the submission made on behalf of the Applicant are unarguable"

Reading the above what do you think the reasons from the tribunal will be.

The high court has found the the senior judges' reasons to be probably correct, so not so good for you, but they've given you another chance to argue your case. I think the onus is on you to actually make a better case and try to sway the tribunal to your point of view.

I hope you have very good representation because you're going against the very interpretation of 10 years of continuous legal stay that's been in force for a long time. Now, to say that short periods of illegal stay/overstay actually constitutes 10 years of legal stay, that's a big change you're trying to bring about.

[republique]

Hi Paulp

The high court actually said
"The ground based upon the change in the terms of the long-residence concession is more challenging. I find ---- Senior Judges reasons for refusing to order a reconsideration to be congent and probably correct:but I cannot say that the submission made on behalf of the Applicant are unarguable"

Reading the above what do you think the reasons from the tribunal will be.

You keep asking us but that is really your job to understand what the rule is and how it helps you. You also ask us to speculate what the tribunal reasons would be. The problem I have with your whole case is that it is very unclear to me to make even an opinion or come up with some rationale that could help you. Your articulation of your case is murky as well as how the ruling helps you. You give one detail and say is that enough? So I can say categorically it won't because you must present your case persuasively. You have never persuaded just simply compared, there must be more if you hope to win. So follow paulp's advice and get a solicitor to sort the matter for you.

[sosolid1234]

Hi Paulp

The high court actually said
"The ground based upon the change in the terms of the long-residence concession is more challenging. I find ---- Senior Judges reasons for refusing to order a reconsideration to be congent and probably correct:but I cannot say that the submission made on behalf of the Applicant are unarguable"

Reading the above what do you think the reasons from the tribunal will be.

You keep asking us but that is really your job to understand what the rule is and how it helps you. You also ask us to speculate what the tribunal reasons would be. The problem I have with your whole case is that it is very unclear to me to make even an opinion or come up with some rationale that could help you. Your articulation of your case is murky as well as how the ruling helps you. You give one detail and say is that enough? So I can say categorically it won't because you must present your case persuasively. You have never persuaded just simply compared, there must be more if you hope to win. So follow paulp's advice and get a solicitor to sort the matter for you.

Thanks Paulp,

The Onus is actually on the reconsideration judge now to show why I do not have a case, as my matter has gone back to the reconsideration judge and I will not be appearing before a tribunal (I think)

I might just end up changing the Law, wish me luck.

Thanks once again Paulp for your assistance.

To Republique,

I used a Solicitor and Barrister for my Appeal and reconsideration of my Appeal. However, when going to the High Court my Barrister said I had no chance in Hell and refused to represent me. So my younger sister who is a Bar graduate and has not achieved pupillage did my Appeal to the high Court on my behalf, which brought about the decision you are reading about above.

I don't mean to be rude but if I listened to advise like yours and the Barrister, then I would not have excersied my rights fully and would not have proceeded on with an appeal to the high court.

Thanks, But I will continue with what you call my murky way and update you of the final Outcome

Cheers!

[republique]

Hi Paulp

The high court actually said
"The ground based upon the change in the terms of the long-residence concession is more challenging. I find ---- Senior Judges reasons for refusing to order a reconsideration to be congent and probably correct:but I cannot say that the submission made on behalf of the Applicant are unarguable"

Reading the above what do you think the reasons from the tribunal will be.

You keep asking us but that is really your job to understand what the rule is and how it helps you. You also ask us to speculate what the tribunal reasons would be. The problem I have with your whole case is that it is very unclear to me to make even an opinion or come up with some rationale that could help you. Your articulation of your case is murky as well as how the ruling helps you. You give one detail and say is that enough? So I can say categorically it won't because you must present your case persuasively. You have never persuaded just simply compared, there must be more if you hope to win. So follow paulp's advice and get a solicitor to sort the matter for you.

Thanks Paulp,

The Onus is actually on the reconsideration judge now to show why I do not have a case, as my matter has gone back to the reconsideration judge and I will not be appearing before a tribunal (I think)

I might just end up changing the Law, wish me luck.

Thanks once again Paulp for your assistance.

To Republique,

I used a Solicitor and Barrister for my Appeal and reconsideration of my Appeal. However, when going to the High Court my Barrister said I had no chance in Hell and refused to represent me. So my younger sister who is a Bar graduate and has not achieved pupillage did my Appeal to the high Court on my behalf, which brought about the decision you are reading about above.

I don't mean to be rude but if I listened to advise like yours and the Barrister, then I would not have excersied my rights fully and would not have proceeded on with an appeal to the high court.

Thanks, But I will continue with what you call my murky way and update you of the final Outcome

Cheers!

I don't find it rude. It is good to be persistent. However you missed my point. You keep making reference to this decision and that decision but I can't decipher what is the decision. What is the substantive point which is being made? And without more informaiton, it prevents people from helping more thoroughly. Sure we can help on a superficial level but from what I gather your case needs a lot of help and clearly has a difficult hurdle to overcome and with very little substantive info, it would be hard to help you.

[sosolid1234]

Hi guys,

I have read some threads and they have mentioned that solicitors have pointed out that it is difficult to say the gaps are valid unless ppl have exceptional circumstance. I have have two gaps and the following reasons,

1) I was stressed,doing exams and moving house (my first gap which i sent a letter to the HO when applying)
2) I was diagnosed as diabetic but this was a 2 months after I had applied, also during this period i was trying to sort my resits in exams and was stressed( I sent a letter letting the HO but i only mentioned that i was waiting for Parents documents) However, I have email documents for that period showing that i was trying to sort my resits and projects. I can also get a doctors note as well

What doo you think of the exceptions, are they valid reasons

[paulp]

1) I was stressed,doing exams and moving house (my first gap which i sent a letter to the HO when applying)
2) I was diagnosed as diabetic but this was a 2 months after I had applied, also during this period i was trying to sort my resits in exams and was stressed( I sent a letter letting the HO but i only mentioned that i was waiting for Parents documents) However, I have email documents for that period showing that i was trying to sort my resits and projects. I can also get a doctors note as well

sosolid, you can always try but I don't think these will significantly increase your chance of success. Compassionate reasons are usually terminal illness, deaths in the family, etc.

[Frontier Mole]

The reconsideration will be based on the error in law the CoA have pointed to. That is the diiference in treatment in considering the 10 year long residency under the "old" rule other than the new rule. Or vice versa.

It will not make any material difference to the outcome as you fail regardless under the new and the old. The facts remain the same, you did not have continuous legal residency due to gaps between visa's.

The CoA is not interested in the final decision, they are only interested in the procedural decsion in law. Your case is more than likley to have the same outcome - it will be refused.

You have won the battle but will still lose the war.