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Ilr - Court Of Appeal


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#1 saravi

saravi

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Posted 23 January 2013 - 04:11 PM

Hello,

This is regarding my husband's ILR.. Pls help..

My husband came into the UK in July 2006 as a WP holder. Applied for ILR in June 2011 and it was refused. This was because of drink and driving offense (convicted in December 2007) and this was not mentioned in the application. Criminality condition was introduced in April 2011. He says he did not mention this in the apllication form because he did not know this was a criminal offense (I did not even know that the traffic offense was a drink and drive one till we got the refusal letter from the home office - well he hid it from me and no use talking about it now).

After the refusal, the following appeals were made:
06 Jan 2012 - First-tier tribunal - dismissed
17 Feb 2012 - Appeal to UT granted (Judge erred in law failing to apply AA (Nigeria) vs secretary of state [2010] EWCA Civ 773)
13 Mar 2012 - Respondent (Home Office - HO) says appellant could not succeed under immigration rules as a result of unspent conviction
27 March 2012 - HO further accepts there was an error of law (Judge failed to have regard to case of AA (Nigeria)
08 May 2012 - UT hearing - dismissed

In this UT hearing, HO accepts that, not mentioning the offense on the apllication was not a deliberate attempt to deceive the HO but simply an error. But otherwise, there was no error of law in the Judge's decision in regard to the Immigration rules.

My solicitor argued that the criminality amendment did not take effect until 06 April 2011, subsequent to the appellant's conviction and referring to Odelola v SSHD [2009] UKHL 25 and SSHD v Pankina [2010] EWCA Civ 719, the rules could not be applied retrospectively and could thus not be applied to the past convictions obtained prior to the change in the rule. He also sais that AA (Nigeria) was irrelevant as the HO had not raised any allegation against the appellant. The judge dismissed the appeal.

04 Sep 2012 - Application to UT for permission to appeal at the court of appeal - dismissed

We have now received a letter for an oral hearing on 01-March-2013 for permission to appeal at the court of appeal.

There is also a recent change in rule for refusal of ILR (that takes effect on 01 Jan 2013 - that says ILR should be refused if "within the 24 months preceding the date of the application, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.)

I dont know if this applies to us.
Any chance of success here?? Do you think, we will get through this stage (for a hearing at the court of appeal) - meaning will we get the permission?

Pls respond.. Is there a way out? Is it possible to make a fresh ILR application at this stage? pls help

Thanks,
Saravi..






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