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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10172
Experience:  Barrister 17 years experience
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I made an in time application (o) in march and

Customer Question

hi,
i made an in time application for flr(o) in march and received acknowledgement letter for the same. i received subsequent letters from the home office for biometrics enrolment and immigration health surcharge payment which i completed in time.
immigration officers came to my address with the refusal letter and said that i was an overstayer. the date on the refusal letter is 11 july and they served me the refusal letter on 27 july.
i want to challenge the home office and ask for compensation. they didnt sent me the refusal letter and instead sent immigration officers with the refusal letter 16 days after the date of refusal. what protocol does home office have to follow while issuing refusal letters.
i want to know the guidelines home office has to follow while issuing refusal letters.
thanks
Submitted: 1 year ago.
Category: Law
Expert:  Nicola-mod replied 1 year ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Expert:  Buachaill replied 1 year ago.
1. At the outset, you need to realise that just because you submitted an application for a visa, this does not legitimise your stay in the UK if you don't have a continuing visa which validates your stay. Your previous visa does not continue forward just because you made an application for a new one. Nor is there any rule that you can stay in the UK just because you have made a visa application. Once your previous visa runs out, you become an "overstayer" after 21 days and are liable to be seized and removed from the country. So here, once your original visa lapsed, you became an overstayer after 21 days and liable to be seized and deported. The Home Office was under no obligation to await the outcome of your new visa application. Nor are they prevented from seizing you and deporting until your visa application has been determined or for a period of days after it has been determined. So you could be seized lawfully on the day you received the response to your visa application. The legality of this detention cannot be challenged.
Customer: replied 1 year ago.

thanks for responding,

the flr(o) guidance notes which i applied on says as follows:-

16. YOUR STATUS WHILE YOUR APPLICATION IS BEING CONSIDERED If you and any dependants apply before the end of your permitted stay in the UK, your/their existing immigration status, including any permission to work, will continue until your/their application(s) is/ are decided.

also home office 3C and 3D guidance says:-

3C leave Section 118 of the Nationality, Immigration and Asylum Act 2002 added section 3C to the Immigration Act 1971 to prevent an applicant from becoming an overstayer by extending their leave while they are: • awaiting a decision on an in-time application, or • exercising a right of appeal against the refusal of such an application.

it clearly says that leave will be extended till application is decided. its very confusing . i dont know what to rely on .could you plz help

thanks

Expert:  Buachaill replied 1 year ago.
2. What visa status did you have before you made the FLR(O) application? What visa were you on? How did you first enter the UK - on what type of visa?
Customer: replied 1 year ago.

i came to uk in sept 13 on 3 year student visa.

i failed 1 module in 1st year and uni curtailed my visa . they said i could neither proceed to year 2 nor could stay in uk for only 1 module.

the uni informed home office in nov 14 and i recd curtailment letter in feb 15 and was given 60 days to make a new application. i made flr(o) application within the 60 days and requested 6 months extension to pass the module and change uni. i explained all the case to home office and send uni results and fee receipts to them.

i was awaiting decision and immigration officers came to my house informing me that i was an overstayer.

plz let me know if u need any more info

Expert:  Buachaill replied 1 year ago.
3. Section 3C only applies if you are applying for a "variation" of an existing visa. It does not apply where you are changing your visa to a different visa. Accordingly, here, where you are changing from a student visa to FLR(O) there is no rule that your existing visa continues until such times as your visa application is determined. So here, once your student visa expired, you became an overstayer after 21 days and liable to deportation. So I regret to say that the law is as I have stated earlier in relation to your situation and the UKBA were within their rights to seek to have you removed from the country.
Customer: replied 1 year ago.

hi,

thanks for responding.

could u plz send the home office policy document link where it mentions that 3c does not apply if one is switching visa.

also could you send the policy document explaining one becomes overstayer after 21 days.

thanks

Expert:  Buachaill replied 1 year ago.
4. Home office policy documents are not law. They are only advisory. It is up to each citizen to find out the law themselves. I have referred directly to the statutes which are the law in this area. What the Home Office state is not the law. You cannot enforce a Home Office circular or policy document in court. The Government is found to have acted unlawfully in many instances in court and they always have an incorrect policy document in place with the wrong legal view. This does not prevent the court from finding in accordance with the law.
5. I know you feel it is unfair that you based your behaviour on an incorrect Home Office policy document. However, I have only attempted to explain to you what the law actually is. You have found out what the law is the hard way, by having Immigration Officers come to your address. However, I am only here to advise you what the law is and answer your query as to how things panned out the way they have.
Customer: replied 1 year ago.

thanks for the help,

as i mentioned in my question that the home office didnt send me the refusal letter through post . the refusal decision date is 11 july and immigration officers served it on 27 july.

i enquired from the immigration team who came to the house why i didnt receive it on time through post. they said bcoz some people abscond after receiving the refusal so they didnt send it out in my case as they assumed i would run away.

later when i asked the immigration officer at the center they said i should have received the refusal letter on time through post and directed me to talk to my solicitor about this issue.

does the home office send refusal decisions through recorded delivery

thanks

Expert:  Buachaill replied 1 year ago.

5. No, the Home Office does not send letters through recorded delivery. However, here, you need to realise that you had overstayed before the letter was ever served upon you by the Immigration Officers.

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