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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7472
Experience:  UK Lawyer holding practising certficate for England & Wales.
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HelloI applied for renewal of discretionary leave to remain

Resolved Question:

Hello

I applied for renewal of discretionary leave to remain that was to expire on 1 June 2013. i sent my application on 13 May 2013 but unfortunately did not send by recorded delivery. The home office have said they did not receive the application before my visa expired. Is there anyway I can fight this please because my job is at risk.
Submitted: 3 years ago.
Category: Immigration Law
Expert:  Thomas replied 3 years ago.
Hi

Did you already hold discretionary leave to remain and if so on what basis what is granted?

Tom
Customer: replied 3 years ago.
I already held discretionary leave to remain and it was granted on Article 8 basis, right to family life for my daughter. At the time she was 1. However, I am no longer with her father and I have sole responsibility for her. I worked as a legal assistant and I am also in university doing a part time post graduate course. My employers have dismissed me from work on grounds that I cannot prove that I have legal right to work in the UK.
Expert:  Thomas replied 3 years ago.
Hi

Does the father of the child still have visitation to her?

How old is your daughter now?

Was born in the uk?

Tom
Customer: replied 3 years ago.
Her father does have visiting rights but we last saw him last year June. He has very minimal contact with her. She was born in the UK and she is 4 now.
Expert:  Thomas replied 3 years ago.
Hi

I will answer at 9am once I am in the office. Thank you for your patience.

Tom
Expert:  Thomas replied 3 years ago.
Hi

Thanks for your patience.

It is a problem if you did not send the application by registered post, because if you had then you would have had a guarantee that it would get their before your visa expires and also proof of postage to use in the event that the UKBA dispute it.

As it stands, you would now be regarded as an overstayer which means that the UKBA has a general ground to refuse the visa and it also means that your right to work has ceased and so your employer probably correctly dismissed you, since they are liable for fines of up to £10, 000.00 for employing each person who does not have a right to work.

As your leave to remain was granted to you on a discretionary basis though, you would not have had an automatic right to renew this. Which is to say that the application would still be requiring the UKBA’s discretion even if you had submitted it before your leave expired.

It’s not a great position to be in and it’s not going to be sort out quickly, if you can actually sort it out.

If the father of the child has visitation rights, which were expressed in a contact order or consent order at court then you would have a good chance of applying on the basis that if you left it would deny him the right to have contact with his child. This would be a separate application, you may choose to see how your current application goes first. However, if he has not visited her in over a year then it’s not going to have a very firm basis from the start.

I assume that your daughter is not a UK citizen. If this is the case the only alternative would be to apply on a discretionary basis again attempting to argue that your daughter has becoming socialy and emotionally connected to the UK because she has been here since birth. I would not be confident in this argument though because she is still so young and they would likely regard that she is young enough to adjust to being raised in your homes country.

I am really sorry that I could not have better news for you.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 3 years ago.
Thank you Tom but I spoke to an immigration solicitor this morning who said that I can request my documents from the home office to verify the date thy my application was actually received by them and not the date that it was logged. They have been unable to confirm a date if receipt which only goes to show that they most likely provided the date that application was logged. I appreciate my situation with my employers but I do not think that the home office can categorically say it took the Royal Mail 21 days to send my application to the home office. I may not have proof of postage but I do but accept that my application took 21 days to get to them. My daughter is British because her father is welsh and she born and raised here. He has no visitation rights given by the court but has minimal contact with my child.
Expert:  Thomas replied 3 years ago.
Hi,

You can attempt to get the UKBA to clarify whether or not it was likely that they received your application earlier than they logged it. You would have to do this by written letter to them explaining your circumstances to them.

The problem with this is that they may not be definitive about it and they may also take a long time to respond because they are overburdened. However, you shoudl state to them that your right to work should not be prejudiced by the excessively long time that they took to log the application and to confirm that your previous status is maintained until they have determined the application.

You may (may) be sucessful with this, but in all likelihood it will not be quick.

If he still has minimal contact then it may be worth contacting him to explain the potential consequence of your current application being refused and not being able to apply on the basis of his visitation. He may be able to assist in helping you to apply on the basis of his future visitation.

Please remember to rate my answer.

Tom
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7472
Experience: UK Lawyer holding practising certficate for England & Wales.
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