I thought it might be useful for anyone else that finds themselves in my position – at the mercy of the UKBA and in receipt of a letter telling them they have to leave their home with no right to appeal – to have a sample letter from which they could form their own response to the UKBA. Note this is NOT my lawyer’s letter for the appeal, this my letter to the UKBA.
If you ever are in receipt of such a letter, that you have “no right to appeal” might be only a partial truth. It means that you cannot appeal directly through the normal UKBA channels. You can, however, call them or your “local enforcement office” (do this right away) and tell them you are disputing it. You can get your MP to make enquiries. And you can get a lawyer (get a lawyer) to file an appeal through the courts.
You may not have the right to appeal; you do have the right to fight.
I’ve redacted the names of the caseworkers (I don’t know if they are actually real people, but just in case) as I am trying to not lay individual blame. Don’t hate the players, kids. Hate the game.
Warning: This letter is pretty long. Awesome (of course), but long. It printed out to four pages and had 23 pages of attachments (not included, just listed).
Temporary Migration Team 21
General Group Managed Migration Directorate
UK Border Agency
Ancestry Visa Renewal
PO Box 3468
Sheffield S3 8WA
25 March 2013
Dear [name redacted],
RE: CASE ID 016580939
016120793 – October application
016308289 – December application
016386596 – January application
005321545 – October application
1010350446 – December application
1010373704 – January application
I received your Notice of Decision (“refusal to grant leave to remain”) on 22 March 2013 which stated that my application fell for refusal under Paragraph 191 with reference to 189(iii) of the Immigration Rules and that I did not have leave to remain at the time of my application. I would argue that because my original application, submitted to the UKBA on 30 October 2013 (please see case 016120793) prior to the expiry of my visa, was invalidly regarded as invalid and because there were no gaps exceeding 28 days between notifications of invalidity from the UKBA and my reapplication, that my application should have been viewed as one continuous application and therefore Section 3C should have remained in force throughout. The application of Paragraph 191 with reference to 189(iii) of the Immigration Rules in this case is an error of judgment; my application was not out of time on 01 February 2013, and therefore my further leave to remain under the UK Ancestry route should not be refused on that basis.
I arrived in the UK in November 2007 with a valid UK Ancestry Visa and have continuously resided in London since that time.
I submitted my application for renewal via registered post on 30 October 2012 and received a letter (reference LR4688017529/001) dated 01 November 2012 confirming the receipt of my application. Please note this confirms I submitted my application prior to the expiry of my visa.
A letter (reference HO_Ref) dated 18 December 2012 stated that my application was invalid as I had “not made any payment and have not completed the payment page of the application form”. It then stated that I should ensure “the payment page is completed before returning” the application.
Even though the original payment page had been filled in both completely and correctly, I returned my application with a new payment page included on or around 20 December 2012 with a covering letter explaining why I was returning my application.
I received notification (reference LR4748012722/001) on 31 December 2012 that my resubmitted application had been received by UKBA. In a letter (reference LR478012722/001) dated 12 January 2013 I was informed that “the fee transaction accompanied with the application has been declined”. No such transaction is recorded against my bank account and no proof of such an attempt exists.
I submitted my application again – this time an entirely fresh copy as the form had changed since the previous resubmission – which was received on 21 January 2013, confirmed in a letter of receipt (reference LR4770010745/001) dated 22 January 2013. This application was returned with a letter (reference LR4770010745) dated 29 January 2013, alleging once again that I had “not made any payment and have not completed the payment page of the application form”. As with the first return letter, this letter also stated that I should ensure “the payment page is completed before returning” the application.
I returned the application yet again including yet another cover letter referencing all the case and reference numbers I had been given as well as a full outline of the situation to date. This was received on 01 February 2013, as confirmed in a letter (reference LR478600863X/001) dated 07 February 2013. On 18 February 2013 I also sent a complaint email to email@example.com outlining the issues and poor service I had experienced. To date there has been no response from that department.
On 22 March 2013 I received your Notice of Decision (refusal to grant leave to remain) by registered post, which stated that the application fell for refusal under Paragraph 191 with reference to 189(iii) of the Immigration Rules and that I did not have leave to remain at the time of my application.
Why my application is not invalid
After reading in the notification (reference LR478600863X/001) that only the most recent application of February 2013 was being considered and therefore Section 3C was not being applied, I engaged in extensive research around my case. I called the UKBA on 0870 606 7766 and was advised to submit this letter of explanation. I have also been advised by immigration advisors that my application cannot be considered “out of time” based on the following arguments and cited case precedent.
Basis of argument
Firstly, I would like to state that outside of the current view that my application is invalid due to being “out of time”, to my knowledge there is no other reason why my application to renew my right to remain under my ancestry visa could be refused.
Secondly, in each letter received from the UKBA in confirmation of receipt of my application, it states in part:
“If there is any problem with your application, such as missing documentation, a caseworker will write to you as soon as possible to advise what action you need to rectify the problem. If there is an issue with the fee you have paid then your application will be deemed to be invalid and returned to you as soon as possible by post. You will be advised on what action you need to take to make a valid application.”
At no point was I contacted to rectify the issue that my payment page was “incomplete”, as alleged in the letters I received returning my application. Had I applied in person and there had been an issue with the payment, an alternative form of payment would have been requested. This puts those who apply via post at a distinct and unfair disadvantage.
Further, I maintain that each of the payment pages submitted, including that of the very first application, were complete and therefore there should have been no issue with the fee paid. I believe the onus is now with the UKBA to prove that there was an “issue” with the payment instead of an internal payment processing error made by their payment processing team. If no such issue with the submitted payment can be proven, then the original application submitted prior to the expiry of my visa was invalidly deemed invalid, as were the subsequent re-applications, and that the entire process started 30 October 2013 is valid and should be considered in this decision.
Lastly, if we accept the application was validly made in October 2012 then the period between 01 November 2012 and today should be covered under Section 3C. As I posted the application before my visa expired, and I responded within 28 days on all three occasions when Home Office required me to, we must conclude that my application should not have been considered to have been withdrawn at any point and the application on which my leave to remain was not granted should not have been judged to be a fresh application but rather a variation of the original application that was made in October 2012. In light of the arguments above, as well as the enclosed documentation and case precedent (please see “Case Precedent” below), I am hopeful that you will see the strength of this argument and will reconsider your decision to refuse grant leave to remain.
An immigration advisor has brought the case of Basnet (on the application of Kapil Basnet) v SSHD  UKUT 00113(IAC) presided by Mr Justice Blake to my attention as a relevant case precedent to my situation. Although the case facts differ somewhat the underlying payment issues are very similar.
Specifically the case calls to light that the respondent bears the onus of proof if the respondent asserts that there was an issue with the application. This should apply to this case, as I continue to assert that there were no issues with the submitted information of the original application made 30 October 2013 and that the payment processing issue is due to internal errors on the part of the UKBA. Until the UKBA can prove that the payment issue is in fact due to an invalid payment (e.g. an incomplete payment page) accompanying the application and not a payment issue due to internal error, then the original application cannot be deemed invalid and therefore a refusal based on a violation of 189(iii) of the Immigration Rules does not apply.
Secondly, the case calls to light that “[t]he respondent’s system of processing payments with postal applications risks falling into procedural unfairness, unless other measures are adopted.
Because no “other measures” have been adopted by the UKBA since Baset v SSHD in regards to postal application payment processing, I believe my application has indeed been rejected purely on the grounds of procedural unfairness rather than any failure to meet the acceptance criteria of the visa.
I have been working and living lawfully in the UK for five years with an extensive and significant professional and private life here in London. Therefore, I feel it would be disproportionate to reject my application for leave to remain on the basis of a single “out of time” application, which is disputable on the basis of above arguments.
I would be grateful if in view of above you would reconsider your decision and grant leave to remain in this case.
Thank you in anticipation of your reconsideration.
1. Copy of page 6 of the originally submitted (and subsequently resubmitted) form FLR(0) stamped “31 OCT 2012” (original receipt date) as well as “2[obliterated] DEC 2012” (the second receipt date). 1 page.
2. Copy of the receipt letter dated 01 November 2012 confirming receipt of application prior to the expiry of the visa. Reference LR4688017529/001. 1 page.
3. Copy of the first application return letter dated 18 December 2012 and signed by [name redacted] of the “Bulgarian & Romanian Casework Team 5”. Reference HO_Ref. 3 pages.
4. Copy of the receipt letter dated 31 December 2012 confirming receipt of application within 28 days of the application return letter. Reference LR4748012722/001. 1 page.
5. Copy of the second application return letter dated 12 January 2013 and signed by [name redacted] of the “Temporary Migration Team 21”. Reference LR4748012722/001. 3 pages.
6. Copy of page 6 of form FLR(0) – a new application form had been released 12/2012 and so an entire new form needed to be completed for submission – stamped “21 JAN 2013” (receipt date). 1 page.
7. Copy of the receipt letter dated 22 January 2013 confirming receipt of application within 28 days of the application return letter dated 12 January 2013. Reference LR4770010745/001. 1 page.
8. Copy of the return letter dated 29 January 2013 and signed by [name redacted] of “Temporary Migration Team 21, General Group Managed Migration Directorate”. Reference LR4770010745. 2 pages.
9. Copy of the receipt letter dated 07 February 2013 confirming receipt of application within 28 days of the application return letter dated 29 January 2013. Reference LR478600863X/001. 1 page.
10. Copy of the email dated 18 February 2013 and sent to firstname.lastname@example.org. 1 page.
11. Copy of the cover letter and enclosed notice of Notice of Decision dated 15 March 2013 and signed by [name redacted] of “Temporary Migration team 12, General Group Managed Migration Directorate”. Reference LR478600863X/001. 3 pages.