GARDEN COURT
”It is admitted that the application made in February 2021 did not give rise to leave pursuant to section 3C Immigration Act 1971 (“section 3C leave”); the Defendant never advised the Claimant that it did. In fact, in the meeting of 2 February 2021 the Defendant clearly advised the Claimant that staying in the UK while his in-country application was pending would make him liable to a re-entry ban, albeit that the re-entry ban did not apply to applications under Appendix FM.
“The file note states “App can remain in UK until a decision is made – if need to make app for EC then because stayed in UK after visitor visa ended can come back as partner but not in another category – banned”.
That advice is wholly inconsistent with any suggestion that he would have section 3C leave. The advice that he “can remain in UK until a decision is made” did not imply that he would not be an overstayer.”
“As regards sub-paragraph (1)(d), it is admitted that the Claimant was placed on immigration bail, but the Claimant is put to strict proof as to any loss and damage he claims to have suffered as a result.”
“As regards sub-paragraphs (2)(b) and (c), the Claimant had no right to work in the UK prior to his departure and therefore no right to take up employment, establish a business or run an existing business in the UK. Leave to enter as a visitor is subject to a condition prohibiting work. If he sought and obtained an offer of employment while in the UK as a visitor or as an overstayer (which is a matter outside the Defendant’s knowledge), he did so in the knowledge that he had no right to work in the UK.”
“The Claimant is put to proof on his assertion that the Home Office required him to leave the country “by August 2022”; as he was an overstayer with no outstanding applications, he was required in law to leave the country immediately.”
“The Claimant was fully advised about the options available to him, and chose an option which would result in him becoming an overstayer.”
“It is denied that the filing was “unaccountably late”. The documents were filed on this date because it was the date of the Claimant’s biometric appointment. It is normal practice for representatives to file representations and supporting documents when an applicant attends their biometric appointment, as the application will not be substantively considered before this time. There was extensive email correspondence between the Claimant and Defendant regarding the timing of his biometric appointment, and the date was chosen in light of the Claimant’s other commitments.”
”It is denied that the Home Office rejected the Claimant’s application; in immigration law, rejection is a technical term which means treating an application as invalid. That did not occur here. Rather, the Home Office substantively considered and refused the application.”
“As regards sub-paragraph (a), the page “Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents” as of February 2021 stated in relevant part “You’ll be able to submit an application form from within the UK, whereas you would usually need to apply for a visa from your home country”. A reasonably competent lawyer would have understood this as arguably amounting to a policy concession outside the Rules that allowed a person to apply for further leave to remain in- country, even where their immigration status would ordinarily preclude this. The Defendant did so understand it, and advised the Claimant accordingly.”
“The Defendant believes that the facts stated in this Defence are true. The Defendant understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
Not signed.
KENNEDYS LAW
”Applications made by our Client under the COVID-19 concession were all successful, except that of your Client. The COVID-19 concession was in place and had been at the time the application for your Client was made. The below reflects the Home Office policy at the time:
“We realise that there were variations of the COVID-19 concession published by the Home Office given the changes that occurred during the course of the pandemic. In practice at that time, for the Home Office to consider such an application as one for entry clearance it was sufficient to rely upon the concession and to mention the same in the application.”
“We agree that both Xxx and Xxx of our Client are experienced solicitors practicing in immigration law.”
“The fact of the refusal decision does not mean that the application had no prospect of success and was not viable.”
“As regards sub-paragraph (f), the Claimant was fully advised about the options available to him, and chose an option which would result in him becoming an overstayer. He was advised that doing so would make him liable to a re-entry ban (albeit that the re-entry ban does not apply to applications under Appendix FM).”
”Our Client discussed with your Client at the outset the consequences if the new application was refused and he fell into the category of an overstayer.”
“In accordance with paragraph 39E of the Immigration Rules, the Home Office has the right to discard a period of overstaying if they wish to do so following a refusal of an in-time application where it is made within 14 days of the refusal (as was the case here).”
”With reference to your paragraph 18, we agree that your Client became an overstayer in the UK after the time for an appeal had expired.”
”Our Client regularly deals with clients classed as overstayers and in their experience the process for applying for EC as a partner is not complicated so long as the applicant discloses their immigration history.”
“Our Client did say that your Client was able to remain in the UK while the Home Office made a decision on the application but at no point did our Client say that your Client would have 3C leave. This was not applicable to your Client following submission of the new application.”
“Following the submission of an application to the Home Office, an applicant can remain in the UK whilst the application is pending. Paragraph 34K of the Immigration Rules states that should an applicant depart from the UK whilst same is pending the application would be deemed as withdrawn. As such, advising your Client that he could remain in the UK whilst a decision was pending was correct and had he departed, the application would not have been considered. In addition to Paragraph 34K the Home Office states that a pending immigration application is a barrier to removal.”
“Human rights arguments were cited, for the sake of completeness.”
“It is important to note that under a visit visa your Client could not work in any event. This restriction would have extended during any period of 3C leave and during the appeal process, should that course have been taken.”
”You say your Client had a “spotless” immigration history. We note he entered the UK as a visitor in October 2019. We note that in his application, your Client would have been required to evidence his intention to depart at the end of his visit. It seems clear from the initial emails Mrs Xxx exchanged with our Client, that your Client never intended to return to South Africa and therefore, it appears that the visit visa application was submitted to circumvent the immigration rules and to facilitate a swift entry to the UK.”
“An application for EC could have been prepared immediately following the February 2022 refusal so that it was ready to be submitted as soon as your Client departed the UK. This would have facilitated the most swift return to the UK.”
“It was Mrs Xxx that was aggressive, hostile, and insulting to Miss Xxx during a telephone call on 21 February 2022.”
”Bans are not taken into consideration for a spouse application. This aligns with initial advice our Client gave at the outset – “if need to make app for EC then because stayed in UK after visitor visa ended can come back as partner but not in another category – banned.” In other words, a re-entry ban would not be taken into consideration should he apply for EC to the UK as a family member, namely a partner in this case. It would, however, affect his re-entry to the UK, should he apply to re-enter in a different visa category.”
“Our Client submitted the application whilst your Client had 3C leave, this was done in an attempt to protect his immigration status because after 14 days your Client would have lost the automatic right not to be refused for overstaying. The Home Office could have granted your Client leave to remain in the UK, or refused the application with a right of appeal, whether the application was lodged within or outside of the 14 days.
“Had our Client submitted the application when your Client’s 3C leave had expired it is unlikely to have changed the outcome.“
”We accept that Paragraph 39E of the Immigration Rules is discretionary and as set out at paragraph 1.10 of our letter dated 6 July 2023, “the Home Office has the right to discard a period of overstaying if they wish to do so” (emphasis added). Your Client was advised during the initial consultation that he would be an overstayer during the processing of the application up to the point of the SSHD making a decision.”
“An applicant being an overstayer does not preclude the Home Office from granting leave or issuing a right of appeal.”
“It is important to note that under a visit visa your Client could not work in any event. This restriction would have extended during any period of 3C leave and during the appeal process, should that course have been taken. Due to Covid-19 the timeframes for appeal hearings were considerably lengthened. It is extremely unlikely that your Client’s appeal would have been heard and a determination made prior to February 2022. As such, your Client would have bene unable to work in any event.”
“The same principle applies to your Client’s ability to rent or to open a bank account.”
“As a visitor to the UK your Client was permitted to drive in the UK on his South African licence for 12 months – i.e. until October 2020. We note that his permission to drive ceased prior to him instructing our Client in any event. He would have been prevented from driving in the UK during any appeal process had he instructed our Client to lodge an appeal.”
“By the same token, we note in Part 6 of the questionnaire he states he was self-employed in several companies, two of which (X and Y) appear to have started in February 2020 whilst he was in the UK (and we note he should not have been working at that time given his immigration status).”
“If Mrs Xxx did not have the skills or expertise to progress the business without your Client, she should not have set up the business and incurred these expenses.”
”We have referred you to contemporaneous emails from Mrs Xxx instructing that her husband could not leave the UK, offering reasons in the strongest of terms. If you do not have copies of the correspondence dated 1 February 2021, please confirm and we will provide the same. Leaving the UK was not the only reasonable route to take. Your Client was fully and appropriately advised on all options.”
”In terms of “improving the chances of success”, the earlier application your Client made himself had no prospect of success as it was the incorrect visa for him to apply for – as a visitor, he was not able to switch to another visa category without leaving the UK and applying for entry clearance from South Africa. It was bound to fail whereas the application our Client made had reasonable chances of success given the concession. Indeed, this was the only application using the Covid concession that our Client had refused.”
“The Client Care Letter clearly set out the options/routes available to your Client. Amongst the three options presented, one option was to appeal the 27 January 2021 refusal. Your Client did not want to pursue that course. Miss Xxx rang your Client to check his instructions again before the deadline expired. He confirmed that he did not wish to lodge an appeal.”
“With reference to your paragraph 12, the timeline in terms of when our Client was instructed is agreed. As set out above, your Client chose not to appeal the earlier refusal. In the specific circumstances, making a fresh application was a perfectly viable option because of the Covid concession which was brought in subsequent to your Client making his first application.
UK MIGRATION LAWYERS
”As discussed the type of application you are applying for falls into a particular category and requires specific legal consideration. Due to the complex nature of the matter and the immigration rules you have sought to take our advice. We confirm we are happy to represent you in this matter.”
”During our conversations, we discussed that the Secretary of State for the Home Department (SSHD) introduced the COVID-19 concession which allowed persons in the UK to submit applications for further leave to remain i, rather than returning to their countries of residence to apply for entry clearance. We discussed that as a visitor you should be applying from South Africa to enter the UK as a spouse however given the current pandemic and travel restrictions you wish to submit the application from within the UK based on the concession.”
“The SSHD will not seek to remove an individual from the UK whilst an application for them to obtain leave to remain is being processed and a decision is outstanding. This is the policy of the SSHD. Understandably then, when the SSHD refused Mr Xxx’s application he immediately became without leave and contemporaneously the protections that an ‘in progress’ application offered came to an end.”
“In relation to the question about having exception circumstances for remaining in the UK beyond the expiry of your visa – the Home Office have advised that if you have remained in the UK due to OCVID-19 then the answer to this question is no. Hence this is what I have placed on the form.”
“Whilst I am not without compassion for the situation that you and Mr Xxx now find yourselves in, I see no reason which might give rise to any cause for complaint about the advice and services you received from this firm and I am of the view that Miss Xxx’s conduct of this matter was exemplary.
I hereby dismiss all claims that form your complaint against this firm and our Miss Xxx.
THE HOME OFFICE
“The policy intent was that during a period with exceptional assurance or short-term assurance the holder would not be regarded as an overstayer or suffer any detriment in future applications relating to that period. Those granted exceptional or short-term assurance were informed they could apply for permission to stay or leave the UK before the expiry of their assurance.”
”39F. For the purpose of paragraph 39E(5), “exceptional assurance” means a written notice given to a person by the Home Office stating that they would not be considered an overstayer for the period specified in the notice.”