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Awan-Legal
Awan-Legal, Solicitor
Category: UK Immigration Law
Satisfied Customers: 128
Experience:  Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
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UK Student Immigration Law - Visa Refusal - Right to Appeal My

Resolved Question:

UK Student Immigration Law - Visa Refusal - Right to Appeal

My application for extension of student visa has just been refused based on the recent 5 years cap role that came to force in April 2012, I believe.

I have been given the right to appeal. Is there any ground of battling this in an Immigration Tribunal or is it a simple waste of time and money?

Right now I am in the middle of my course and I have another 1 and a half year to finish my BA.

I had already spent quite a long time at another university doing a different course from what I study at the moment. I didn't find my previous course right for myself and I had a series of mitigating circumstance to do with my health (heart problem that I ended up going under a surgery for it) so, in a way I was not fit to conduct my studies.
Therefore, my mitigating circumstances and the fact that my previous course wasn't the right one for me resulted in me spending so long on that course before leaving it un-finished.

At my current course however, I have been making good progress with good results.

Do I have a ground for appeal?

I understand why they may have refused my application, as I am only a couple of months away from being in this country for more than 10 years and they probably think that I would want to stay here based on long term residency (which I didn't even know about till about 7-8 months ago) and perhaps the whole idea of this new cap rule is to prevent students reaching the 10 years. If I provide guarantees that I would not use this route to stay in this country permanently, do you think I have a ground? as I only want to finish off my course and that's it and because I very much like what I study at the moment and I could potentially provide good references from my tutors and people who know me.
Submitted: 1 year ago.
Category: UK Immigration Law
Expert:  UKSolicitorJA replied 1 year ago.
Hello,

I am happy to deal with your UK immigration law issues.

I am afraid the 5 years cap is non negotiable unless you fall into one of the exemptions or there are compelling circumstances:

The following courses are exempted from the cap: Architecture, Medicine, Music, Dentistry, Law (where a student has completed a degree in the UK and is progressing to a CPE, GDL/LPC or BPTC); Veterinary medicine and science; music (at a ‘Conservatoires UK’ member college)

You may try appealing the decision and cite compelling circumstances e.g. your surgery etc. I would suggest you go ahead and appeal.

All the best -pleease leave feedback


Thank you
Customer: replied 1 year ago.
Relist: Other.
I would like to have someone else's opinion
Expert:  UKSolicitorJA replied 1 year ago.
Please leave feedback for the answer given.
Customer: replied 1 year ago.

Thanks for this.


 


But I just wanted more detailed answer as a way forward in an Immigration Tribunal.


 


Ok you are saying compelling situation. Is there any Human Right law that could help in this case?

Expert:  UKSolicitorJA replied 1 year ago.
There is provision for the UKBA to take into account your surgery/health and give you more time to complete your course, despite you having reached the 5 year cap.

This is why you should submit an appeal.

I suggest you appoint a solicitor to represent you in the appeal as this is a general Q&A site and we can only provide guidance here.

All the best -please leave feedback
Customer: replied 1 year ago.

I understand. I have already got a solicitor but I am trying to get more opinions on the case.


 


As mentioned in my question, I think these caps have been put into place to avoid students reaching the 10 years and apply for ILR under the long term residency scheme.


Do you think UKBA would be more willing towards accepting my visa request so that I finish my current course of study, if I was to give them guarantee that I will not apply under this scheme and if I do they can note this down on their systems to refuse it instantly? Do you think this is something that could help or would it simply not make a difference to them?

Expert:  UKSolicitorJA replied 1 year ago.
The undertaking that you are proposing will not help I am afraid.

You should not worry about why the cap has been brought in, you need to focus on putting together a good appeal on compelling grounds with letters of support from your current tutors that you are progressing well and evidence of your medical history.

All the best
Expert:  Awan-Legal replied 1 year ago.
Hi

IT is certainly worth appealing on mitigating compassionate circumstances and human rights grounds. I agree with my colleague above in that you should not offer to waive the 10 year rule or promise to go back as a condition as this holds no basis in law anyway. I also think if you are only 2 months away from completing the 10 year requirement, it is also worth pursuing as there is guidance from the ukba where ILR can be granted outside the rules on a discretionary basis (not very often exercise but worth arguing on human rights in your case). I would perhaps suggest instructing barristers at renaissance chambers or garden court chambers although they may be costly but are very highly recommended.

My colleague has spent time and effort in your answer so please rate his answer - I am providing a second opinion as requested in the hope that you wil benefit from the discretionary aspect and human rights.
Customer: replied 1 year ago.

Thanks for this.


 


Are you suggesting that I could be applying for the discretionary long term residency ILR while this appeal is in process?


 


What could be the basis under Human Right?

Expert:  Awan-Legal replied 1 year ago.

Yes so long as you appeal within the time limits and so your existing visa continues. As you still have extant leave (continuous leave under s3c of the 1971 Immigration Act) until a decision is received your 10 years should become complete by then - also the 10 year guidance allows you to submit an application 28 days before the 10 year period is due to complete so it would be worth doing that to ensure the application is submitted while you have extant leave.

If you are successful on compassionate grounds with your current appeal, then the chances of the 10 year ILR are increased in any event.

I hope that helps.

Customer: replied 1 year ago.

Very helpful.


 


Do you think I would be submitting an application to UKBA 28 days before my 10 years comes to end or, would I apply to court for the variation of leave?


 


Should we win on the compassionate ground, would they not issue me with a discretionary leave to remain that wouldn't count towards the 10 years?


 


I'm thinking if it's worth having our focus more on getting the ILR than winning this court?


 

Expert:  Awan-Legal replied 1 year ago.

Hi

I would suggest making a fresh application so that the two can be decided separately - as ideally you would want a successful decision on the compelling circumstances to then argue the 10 year rule in case there are problems with it. It would be better to discuss this in detail with your lawyer who will know the merits of your case having looked at the documents and facts.

The discretionary leave visa if successful would count towards the 10 years by law (but remember this is dependant on putting together a good appeal and case. It will also depend on whether you get a 'good' or sympathetic Judge on the day of the hearing).

Awan-Legal, Solicitor
Satisfied Customers: 128
Experience: Specialist in immigration law with the highest level of accreditation in this area and with many years experience.
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