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UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience:  I am a qualified solicitor and an expert in UK law.
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Extension of discretionary leave to remain years.

Resolved Question:

I Came in the UK in June 2001 and remained lawfully by the end of 2003. then became over stayer and filed, out of time application in March 2004 for ILR which home office refused after delaying 5 years, without any right of appeal. Then I hired a new solicitor who filed an application for DL which was also rejected without right of appeal. Both applications were submitted under artile 8 of echr as well as article 3 citing medical ground. Home office did acknowledge that delay in my first application was their fault but refused to consider my article 8 claim under private life. Only after complaining to Ombudsman they decided to reconsider my DL application under article 8 and paragraph 395c was also considered. It was eventually deemed inappropriate to remove me from UK and without triggering right of appeal I was granted 3 years DL outside the rules.

Near the end of 3 years I applied for extension of DL on 08/04/2015 (in time) using FLR(O). on 06/04/2015 home office introduced Immigration health surcharge (IHS) which is supposed to be paid before making application but I paid for that after submitting my application (without HO asking me to pay for it). Since 08/04/2015 I have received acknowledgement letter followed by a letter saying

"Your application raises issues relating to the European Convention on Human Rights which are complex in nature. As such, it falls outside our normal service standards for deciding leave to remain applications. Please be assured that we will make a decision on your case as quickly as possible."


My questions are, could it be signs to worry if I did not pay for IHS before making my application? HO still hasn't issued me bio-metric enrollment letter but issued me with that ECHR warning letter that it may take long? and can habitual residency test (HRT) done by DWP (when I claimed JSA) have any negative impact on my extension of DL?

Please note, since 2003 I did work and got NHS treatment but HO was aware of that and they granted me DL. Could they reconsider these factors again during active review of my extension application and refuse my application on that basis again? My overall stay in UK is little less then 14 years and I am unmarried without kids.

Any help will be appreciated.

Submitted: 1 year ago.
Category: Law
Expert:  UK_Lawyer replied 1 year ago.
Hi, thank you for your question, I will be happy to help you today.
1. No this is nothing to worry about, although the home office would ideally like you to pay for IHS before the application is submitted, if this is not done then your application can be delayed. The wording which you have stated above in your question is generic and is usually what is stated on all applications for discretionary leave to remain.
2. This letter is an acknowledgement of receipt of application letter, you bio metrics should follows in a few weeks. It has no baring on whether your application will be refused or granted.
3. The test is there to ensure that you are able to claim what you have a right to, if they had undertaken the test and decided that you had a right to claim JSA allowance then this was done in accordance with the usual procedure and should not have any negative effect on your application.
4. If the home office already granting your DL knowing that you had had recourse to the NHS, then this should not effect your application. You have disclosed all that was required then and what is required now to the home office therefore the fact that you had some treatment from the NHS should not be a major factor in deciding your application.
I hope this answers your question if however you feel that the answer does not cover all the points raised in your question please do not hesitate to ask further questions until you are satisfied with my answer.
Kind regards
Customer: replied 1 year ago.

Thanks for your reply,

I would like to ask further in relation to my question and your answer. That when I was granted DL in April 2012, It was done after consideration of Paragraph 395C of immigration rules back then and because of long delay by their mistake it was deemed inappropriate to remove me from UK and thus no right of appeal was triggered. Will they consider same paragraph this time (because after July 2012 this paragraph has gone). And if they consider same paragraph again can they refuse my extension this time with right of appeal.

Please note this time I made my application myself without involving solicitor. My circumstances are still the same, i.e. My overall stay of approximately 14 years strengthens my personal life claim even more then before Plus I have my family members living in UK who are all citizens of UK and I see them regularly. Related to your answer in point 4. After being overstayed I had no recourse to NHS and was not supposed to work, but home office knew that all the way along from 2004 to the point in 2012 when I was granted DL. because I provided my wage slips and NHS reports to them. They only criticized slightly when I complained to Ombudsman and not before that.

Only thing that has slightly changed is my medical condition. I am no longer under Specialist care but still on medication with my GP for long term maintenance of my condition. Can this effect my application.

Expert:  UK_Lawyer replied 1 year ago.
Thank you for your reply.
No, at this moment in time they will not consider the application under the same paragraph they will need to apply paragraph 353B which states:
353B. Where further submissions have been made and the decision maker has established whether or not they amount to a fresh claim under paragraph 353 of these Rules, or in cases with no outstanding further submissions whose appeal rights have been exhausted and which are subject to a review, the decision maker will also have regard to the migrant’s:
(i) character, conduct and associations including any criminal record and the nature of any offence of which the migrant concerned has been convicted;
(ii) compliance with any conditions attached to any previous grant of leave to enter or remain and compliance with any conditions of temporary admission or immigration bail where applicable;
iii) length of time spent in the United Kingdom spent for reasons beyond the migrant’s control after the human rights or asylum claim has been submitted or refused; in deciding whether there are exceptional circumstances which mean that removal from the United Kingdom is no longer appropriate.
In regards ***** ***** medical condition, this is not an issue as individuals whom has DL prior to July 2012 are allowed to have recourse to public funds to an extent where as after July 2012 they are not. You application will be decided on the old rules of discretionary leave to remain and just your medical condition should not be an issue.
I hope this clarifies the matter, if so please provide a rating so I can get credited for my time.
Kind regards
UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience: I am a qualified solicitor and an expert in UK law.
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