Day: August 8, 2019

WHEN THE HOME OFFICE SHOULD EXERCISE DISCRETION

Applicants under the Points-based system

  • Tier 4 students,
  • Tier 2 and Tier 5 workers,
  • Tier 1 visa holders,

must strictly comply with all visa requirements and supply certain specified documents in support of their applications. It is clear in “stark terms” under paragraph 39B of the Immigration Rules that ‘if the necessary documents are not provided, an applicant will not meet the requirement for which those documents are required as evidence.’ As a result, an application will not be successful.

 

However, in case of exceptional circumstances the Home Office should exercise discretion. Moreover, since R (Behary & Ullah) v SSHD [2016] EWCA Civ 702, it has been good law that the Home Office is obliged to consider discretional grant [outside of the Rules] ‘when expressly asked to do so’. The categories of exceptional circumstances are not closed. In the guidance, examples are given of what could constitute such circumstances, but each case depends on its facts.

 

For example, discretional leave can be granted if educational provider has its licence withdrawn or revoked during the period between an application for extension of leave as a Tier 4 (General) Student and the Secretary of State’s decision on the application (see Patel (revocation of sponsor licence – fairness) India [2011] UKUT 00211 (IAC)).

 

However, the Home Office is quite strict in exercising discretion, especially, in case of Tier 1 (Entrepreneur) extensions. Recent cases of:

  • R (Prathipati) v SSHD (Discretion – Exceptional Circumstances) [2018] UKUT 427 (IAC);
  • R (Sajjad) v Secretary of State for the Home Department [2019] EWCA Civ 720;
  • Khajuria, R (on the application of) v The Secretary of State for the Home Department [2019] EWHC 1226 (Admin)
  • Asiweh v The Secretary of State for the Home Department [2019] EWCA Civ 13

are good examples.

 

Thus, it is crucial to seek an immigration advice if not before submitting an application straight after receiving refusal. Our experienced Lawyers can assess the merits of bringing a judicial review claim and provide the best Immigration solution in case a judicial review would be waste of your time and financial resources.

 

I cannot provide all the documents to support my visa application, what do I do?

 

Are you currently on student, work, entrepreneur or any other point-based system visa and looking to extend it?

Or are you looking to apply for the first time?

You must strictly comply with the document list to support your application. Usually, the Home Office is very strict on this while they are evaluating your case, and if you do not provide a required document, your application may be refused.

However, sometimes, in case of exceptional circumstances, the Home Office may exercise discretion, and consider a grant.

There are several categories described in the guidance of such exceptional circumstances. However, each case should be evaluated on an individual basis.

Moreover, the Home Office is quite strict in exercising discretion, especially in case of Tier 1 (Entrepreneur) extensions.

We strongly suggest to seek legal advice before submitting such an application.

We can assess your case and evaluate your chances of getting visa.

However, if you already received a refusal, we still can help. Our lawyers will assess the merits of taking your case to the judicial review claim stage. If we think judicial review will not be successful, we’ll provide you other immigration solution.

The case was successful due to efforts of our Immigration Lawyer Oksana Demyanchuk and her team.

oksana@sterling-law.co.uk

+44 020 7822 8535

+44 7 305 966 531