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ILR - Right to appeal


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#1 Gloria__

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Posted 30 November 2008 - 04:00 AM

Hi everyone,

I am new to this forum (glad I found it)!

I have just had my application for ILR (long residence) refused without the right to appeal because 'Section 82 of the Nationality Immigration and Asylum Act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the United Kindgom and so is entitled to stay here'. My current leave expires on 31 Dec 2008. I have applied after 10 years as a student.

Could someone advise whether I really don't have a right to appeal? Is the 2002 Act the most up-to-date one? Is the HO meant to make the decisions based on the provisions of that act only?

I just don't know what to do in this situation, especially that the rejection is based on the mistake made by the Immigration Officer as to the facts on the history of my student applications when deciding on ILR application. They completely messed it up!!! I just couldn't believe it when I read the rejection letter!! They based the decision on the facts that never took place, and I have all the evidence to prove them wrong. Not only they twisted the facts, but also said I applied as a dependant (though not stating in which category) outside the immigration rules, and I never did!! Never in my life applied as a dependant!!! They rejected because I had no valid leave to enter or remain between 9 March 2006 and 3 May 2006, which does not tie up with the real facts.

CAN SOMEONE HELP PLEASE?

There must be something that can be done....

Many thanks in advance :)



#2 katy

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Posted 30 November 2008 - 01:39 PM

HI

you can apply for reconsideration as well and possibly call Ho or take advice or with some immigration lawyer .

#3 ChrisLCK

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Posted 30 November 2008 - 03:38 PM

They rejected because I had no valid leave to enter or remain between 9 March 2006 and 3 May 2006, which does not tie up with the real facts.


If you're 100% convinced you qualify under the rules, and they have made a mistake, I suggest writing to your MP who has a duty of care to you to get public bodies (e.g. the BIA) to work properly.

#4 Gloria__

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Posted 30 November 2008 - 04:02 PM

If you're 100% convinced you qualify under the rules, and they have made a mistake, I suggest writing to your MP who has a duty of care to you to get public bodies (e.g. the BIA) to work properly.
[/quote]

Thanks you so much for the reply.
Yes, I am 100% sure they made en arror. Is writing to MP the only option in this situation?

#5 Gloria__

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Posted 30 November 2008 - 05:58 PM

HI

you can apply for reconsideration as well and possibly call Ho or take advice or with some immigration lawyer .


Hello

What is the procedure to apply for reconsideration? Do you apply directly to the HO or do you need a court decision for the HO to reconsider?

#6 Visa Direct

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Posted 30 November 2008 - 07:47 PM

A new application prepared well could be resubmitted.

Contact me if you need any advice or assistance.

#7 benscaro

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Posted 01 December 2008 - 02:38 PM

Hi everyone,

I am new to this forum (glad I found it)!

I have just had my application for ILR (long residence) refused without the right to appeal because 'Section 82 of the Nationality Immigration and Asylum Act 2002 does not provide a right of appeal where an applicant still has leave to enter or remain in the United Kindgom and so is entitled to stay here'. My current leave expires on 31 Dec 2008. I have applied after 10 years as a student.

Could someone advise whether I really don't have a right to appeal? Is the 2002 Act the most up-to-date one? Is the HO meant to make the decisions based on the provisions of that act only?

I just don't know what to do in this situation, especially that the rejection is based on the mistake made by the Immigration Officer as to the facts on the history of my student applications when deciding on ILR application. They completely messed it up!!! I just couldn't believe it when I read the rejection letter!! They based the decision on the facts that never took place, and I have all the evidence to prove them wrong. Not only they twisted the facts, but also said I applied as a dependant (though not stating in which category) outside the immigration rules, and I never did!! Never in my life applied as a dependant!!! They rejected because I had no valid leave to enter or remain between 9 March 2006 and 3 May 2006, which does not tie up with the real facts.

CAN SOMEONE HELP PLEASE?

There must be something that can be done....

Many thanks in advance :)


I looked into the issue of the lack of appeal rights recently . I am not sure exactly which case is being referred to here but it may be a recent AIT decison, SA Pakistan 2007 UKAIT 0083 which says that if an application to vary is refused (ie, a ten year claim), the person will have no appeal rights against that refusal if they had existing leave to remain in the UK at the time of the decision.

I believe the AIT came to this odd decision because of their finding that there was an inconsistency between s.82(2)(d) and s.3C. From recollection, the write-up of the SA Pakistan ruling did mention seeking judicial review, which is a last resort.

It says that usually a person would have to prove that last-ditch options, ie 'out of country' rights of appeal were not an alternative remedy, before being allowed to go to the court for judicial review.

The case analysis said

However, as judicial review is a remedy of last resort, they would have to show that the out of country right of appeal against any future removal does not constitute an alternative remedy to judicial review. It is difficult to see how it could provide an alternative remedy when it could only be obtained by committing a criminal offence through overstaying. Judicial review would therefore be available.

In the cases I was looking at, there would be no out of country appeal rights, as they are renounced BOCs and luckily (?), can't be sent anywhere.

In any event, it sounds as though judicial review would be an option ?

Ben

#8 mohammad zubair

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Posted 01 December 2008 - 06:58 PM

I am very sorry to hear that. I can understand that it is very frustrated.
Could you please explain in details of what happen and explain about your absent.

#9 Gloria__

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Posted 01 December 2008 - 09:18 PM

In any event, it sounds as though judicial review would be an option ?

Ben


Yes, I was thinking about the judicial review, but the concern is - how long will the whole process take? My visa is running out. In theory, I could extend my studen leave to remain for another year, but if the review takes longer than that?

I sent a letter of complaint to the HO today, to the case working unit (couldn't get hold of anyone in customer services), and explained what went wrong and decribed the true events in detail. Enclosed copies of all the evidence I had to support those facts.
I did it becase whatever next step I take, the first question would be - have you contacted the HO about it?
I could complain to Ombudsman, but again, they won't even look at it before I give a chance to HO to put things right.

Also, another option I thought about was to apply again for ILR before my current leave expires and enclose the detailed letter of my applications history so they won't have a chance to get it wrong again, but if they do, I will have a right to appeal.
The only thing is, they should be more professional and careful about their decisions. People lives depend on that! And they charge us quite a lot of money.

#10 Gloria__

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Posted 01 December 2008 - 09:39 PM

I am very sorry to hear that. I can understand that it is very frustrated.
Could you please explain in details of what happen and explain about your absent.


Hi,
I was a bit hesitant at first to put detailed info on here, but in case it helps someone else, here goes...

The decision letter says:

'On 11 February 2006 you submitted an application for a variation of leave to remain as dependant outside the immigration rules which was rejected as the fee had not been paid.

On 9 March 2006 you applied for leave to remain as a student which was refused with a full right of appeal.

You did not appeal against this decision.

On 4 May you applied for leave to remain as a prospective student which was granted until 31 October 2006.

Therefore, for the period 9 March 2006 to 3 May 2006 you were in the United Kingdom without valid leave to enter or remain.'



However, on 11 February 2006 I submitted an application to extend my leave to remain as a prospective student using form FLR(O), which was the required form by the Home Office for this category in 2006.

On the 8th March I received a letter from the Home Office, together with my initial application form and supporting documents, asking to sign the first page of my application. The reason stated - to proceed with my application, and no refusal or rejection was mentioned. I signed the first page of the application and returned my application to the Home Office on the same day, together with all the supporting documents, as requested. The fee of 335.00 was debited from my account on the 14 March 2006.

At the end of April 2006 I received my documents with a notification of refusal, allowing the period either to appeal the decision or submit new evidence to extend my leave in the UK.

Instead of appealing the decision, I chose to submit a new application because my status changed from 'prospective student' to a 'student'.

Consequently, at the beginning of May 2006 and within the allowed period for submitting new evidence to extend my leave, I submitted the application for leave to remain as a student (and not as prospective student) on the form FLR(S). The fee of 250.00 was debited from my account on 4 May 2006. The leave to remain as a student was subsequently granted until 31 October 2006.

Therefore, during the period from 9 March 2006 to 3 May 2006 my presence in the UK was legal and I had a valid leave to remain in the country.






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