What happens if my ILR is refused?
What happens if my ILR is refused? Is a question many of our clients ask us when we start their application process.
If an application for indefinite leave to remain is refused, then depending on the circumstances surrounding the refusal, the individual concerned should be given a right of appeal by the Home Office to the first tier tribunal immigration and asylum chamber.
Why would an application for ILR be refused?
This could be as a result of several circumstances.
(1) The individual concerned if applying under the 10-year continuous lawful residence rule in paragraph 276 (I) (b) of the immigration rules, may not have been in the UK lawfully for 10-years. During this period such a person may have been an overstayer here even for one day in the past, and although they may have had their visa extended during the 10-year period when it comes to ILR, they may be refused.
The right of appeal based on human rights breaches under Article 8 of the ECHR, as to private and or family life, could be lodged.
Furthermore, the home office has a set of guidance notes for caseworkers, and these form policy considerations which the Home Office take into account in arriving at decisions, and minor breaches of the rules are not considered serious enough at times to prevent the grant of ILR. These guidance notes could be used in the individual’s favour to try to overturn the decision before the tribunal.
(2). ILR could also be refused on the basis for example that the individual affected by the decision has not lived with their partner or spouse for a 5-year period, or the British or settled partner/ spouse alleges that the other partner/ spouse only wanted to get married or live together because of immigration issues and no other reason. In the latter case, it is difficult to see how the individual could succeed on appeal when the support of the UK spouse/partner would be required.
(3). There could be a refusal of ILR on the basis that the person concerned had not passed the English language test at all, or to the standard required. The burden would be on the person affected by the decision to show otherwise on appeal. The standard of proof would be on the civil balance of probabilities.
(4). On the other hand, there may be a refusal of ILR because the person has not worked in accordance with the tier 2 immigration rules for a 5-year period. If there is a human rights element to it, there will be a right of appeal.
(5). ILR could also be refused on the basis that the person concerned cheated and did not take the English language test themselves but used a proxy to take the test, or because the individual concerned had inflated their earnings or had not shown the correct amount of tax paid when applying for such settled status as a self-employed highly skilled migrant under the previous HSMP programme, but the burden here would be on the SSHD (Home Office) to show bad conduct. The individual concerned can then argue that there is an innocent explanation for this matter.
(6). ILR can also be refused on the basis that the individual concerned is a person of bad character, because of criminal convictions and again the Home office would have the burden of proving but this allegation can be rebutted by the individual using human rights considerations to base their appeal.
(7). Refusals of ILR based on breaches of appendix FM as regards a relationship as husband and wife, or on the basis of being a carer for a British child or one settled here and having lived in the UK for the last 7 years, are matters that will raise human rights elements on appeal.
(8). There may also be a refusal of ILR because the wrong form was completed. For example, instead of completing the online form SET (M), the SET (O) settlement form May have been used based on marriage to a British citizen or settled individual, but the home office fees are the same, and the cover letter would have made the purpose of the application clear. In these circumstances, whilst using the wrong form is obviously not to be encouraged; nevertheless, it should not be fatal on appeal and provided there were no fee difference issues, and the intention and purpose of the application was made clear in the cover letter, on appeal the application should succeed.
(9). ILR could be refused because:
-The income threshold of £18,600 gross per annum is not met when an application is made,
-The NHS surcharge has not been paid, or
-There is a debt due to the NHS by the individual,
-The individual has not paid court costs ordered against them due to an unsuccessful previous Judicial review application.
In conclusion, the above are some of the obvious reasons why an application for ILR could fail. Still, if there are human rights considerations, then there will be a right of appeal to the tribunal to debate these issues before independent judges.
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