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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 6655
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi I have a quite urgent situation! Tips will be payed to anyone

Resolved Question:

Hi I have a quite urgent situation! Tips will be payed to anyone answered within 30 min. please. I have attended my hearing at the first tier tribunal on 27/06 about my refusal of the tier 2 general visa. I have a document with me that can prove me being awarded the visa however The judge told me that according to the new Act, after 23/05, no new evidence will be considered in the hearing, so he urged me to make a new application as soon as possible while I still got the leave to remain because my current tier 4 student visa has expired on 1/05 during the visa application process. Now I had post a new visa application form to the home office on 04/07, and received the decision letter from my hearing on 07/07 saying that the judge has dismissed my appeal,which is not surprising, and the decision promulgated date on the letter is 04/07! The date that I posted my new application for the visa with my new evidence. In this case, should I take any action now? To conclude, i applied tier 2 general visa on 11/04, my current tier 4 visas expired on 01/05, the visa was refused and i appealed. The decision date of the first tier tribunal is 04/07. I posted my new application of visa on 04/07 as well. I receive the decision of tribunal on 07/07. Should I appeal to the higher tier tribunal to extend my leave to remain to legitimate my new application on 04/07?
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 3 years ago.
Hi
Thanks for your question.
To enable me to answer your question could you please respond to the following:-
1. What is the date of the decision letter refusing your appeal
2. What date did you send your new application
3. What evidence did you not send with your original application
Kind regards.
Tom
Customer: replied 3 years ago.
1. 04/07
2. 04/07
3. My Masters Degree of University of Durham to prove my English ability
Cheers
Expert:  Thomas replied 3 years ago.
Did you physically send your new application on 04.07, or was this the date that the UKBA acknowledges that it was received?

Kind regards,

Tom
Customer: replied 3 years ago.
04/07 was the date that my immigration lawyer posted my application by special delivery! (she is on holiday now so I can not seek for her advice)
Expert:  Thomas replied 3 years ago.
Hi,

Thanks for your question.

Unfortunately, there is obviously a small gap between your leave to remain stemming from the date the decision was issued by the judge by letter and the date by which the UKBA would have received your new application. This gap is one day.

Technically this means that the UKBA would be entitled to reject the new application because you do not have leave to remain. You are therefore relying on their discretion.

If they reject they would not necessarily have to give you the right of appeal because (technically) it is an application out of time.

However, you could still apply for judicial review of the decision, though this is very expensive (£3000 in legal fees) but the UKBA would know this. Given this and the fact that you could return to your home country provided you left the country within 28 days of 04/07 to make the application again and the UKBA would not be able to reject because of an overstay I would expect them to take a pragmatic view.

I would expect them to look at your case, exercise their discretion and grant you the visa that you have applied for because it will simply be more administrative work for them if they don’t because either you will apply for JR or you will return to your home country to make the application.

There is nothing you can do in the meantime however, because there is nothing you can do now to change the material facts of the case.

It’s hugely unfortunate in terms of the relevant dates, but I would still expect you to secure your visa under the new application;

If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question.

I will answer your follow up questions you may have.

Kind regards,


Tom
Customer: replied 3 years ago.
Hi
Thank you so much for the detailed information! One last question: my lawyer told me before she went on holiday that it would take 28 days for the decision made of my new application. It means even I decide to go back to my country now I have no passport to do so unless I withdraw my application.
In this case, if I choose to wait for their decision, am I illegal to stay in UK now? I feel it so unfair to me because how would I know the date of the tribunal's decision before I receive their letter? I don't intentionally do the wrong thing by posting my new application on 04/07....
If I fill in the IAFT-4 form which is received with the decision letter of the tribunal and fax it today, would it win more a couple more days of leave to remain?
Expert:  Thomas replied 3 years ago.
Hi,

If you do not receive your passport back in time back from the UKBA but leave within a reasonable time of receipt if and when they reject your application then you will have a good argument for why any time beyond the 28 days that you do spend in the UK should not be considered an overstay.

It's not that you have done anything wrongs, it's just an unforunate confluence of timings which have presented you with a problem, but because it is unfortunate (rather than negligent by you) that is why I am hopeful of your chances of receiving an approval on the new applicaiton.

please click accept.

Kind regards,

Tom
Thomas, Solicitor
Satisfied Customers: 6655
Experience: BA (Hons), PgDip, Practising Solicitor
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