Advice Appreciated- Uk Student Visa Refusal

[farmerfred]

Hello,

In December last year an application for a second student visa was made at the end of my girlfriend's first year studying here and the application made here in UK. This was done under the old rules or as they were changing. Unfortunately in March we finally received notification that there had been a problem with the cheque and so therefore another cheque was written and posted to pay for the application. Today received the result and it is a refusal due to 'the fact that there is a gap of more than 1 month between the end of your current leave 02 December 2009 and the start date of your new course which commenced on 29 March 2010...'. It seems that they haven't taken into account the fact that at the time of the original application there was less than 1 month between the dates. All the points were claimed and so this seems to be the only problem. She now has to leave the country ASAP. I would appreciate any advice on whether there is a chance of an error by the UKBA but it seems unlikely. It's a shame they still wanted the money off us. Thanks for any advice with this one, am feeling pretty gutted.

Edited July 22, 2010 by farmerfred

[Eff1n2ret]

It looks like it's this subpara under Para 245ZX of the Immigration Rules which has dished her application:-

"(l) The applicant must not be applying for leave to remain for the purpose of studies which would commence more than one month after the applicant's current entry clearance or leave to remain expires."

That's the way the tick-box system works now, the application either ticks all the boxes and is granted, or it doesn't and it's refused, and either way the caseworkers/ECOs are not encouraged to use their discretion. It's not their fault you issued a duff cheque. In any case, from what you say she must have been accepted on an earlier course when she originally submitted the application, so why didn't she embark on that in anticipation of being granted LTR?

It seems to me difficult to argue that they have made an incorrect decision, albeit a tardy one if you've only just received it. You could try writing to them on those grounds, that it's unfair that they should have delayed refusal so long after the commencement of her course, and say that you will take legal advice about going to Judicial Review if they can not change their decision - flying a kite really, as it would cost you a bomb to go for JR, but they might just buy it.

Otherwise she might be best to come back and apply in BKK for another EC. If she ticks all the boxes, that's probably the quickest solution.

I hasten to add that I have no recent practical experience of the Points Based System, you may get an alternative view from someone who has.

[7by7]

As Eff1n2ret says, it is not the UKBA's fault that there was a problem with the cheque, and they will not start to process an application until payment has been made. The application also has to reach the 'top of the pile' before they'll look at it. It would appear that having needed a replacement cheque, it went back to the bottom of the pile.

Again as he says, the rules are quite clear. If there is a gap of more than one month between the end of the applicant's current Leave To Enter and the commencement of any new studies then they have no choice other than to refuse. Her LTR expired 2/12/09 and the new course started 29/3/10; four months after!

However, you say

It seems that they haven't taken into account the fact that at the time of the original application there was less than 1 month between the dates

Does this mean that she originally had a course starting between the 3rd December 2009 and the 2nd January 2010? Seems odd, if so. A course starting just before Christmas or between Christmas and the 1st January seems very unlikely; and the 2nd January 2010 was a Saturday.

Or did she not submit the application until late February/early March 2010; at least 3 months after her LTR expired?

Like Eff1n2ret, I have no practical experience of the PBS, but agree with him that she has two choices:-

1) Try to get the decision overturned in the UK. She will definitely need professional advice for this; which could be expensive with no gurantee of success.

2) Return to Thailand and apply for a new Tier 4 visa. This could very well prove to be the cheaper option; provided she qualifies, of course.

[ThaiVisaExpress]

I would advise she returns and submits a fresh application or seek professional advice .

[farmerfred]

Thanks for the replies. I think as she had intended to return home for a brief visit in near future to visit family that she re applies in BKK. I'm unsure of the exact date of the start of her next course but it was a continuation at the school. The school helped with the application, and in hindsight I should have paid more attention but with the rules changing yet again I decided the school must know best. That clears up that one anyhow and I guess can take comfort in that she met all other criteria. This may help in re-applying from Thailand. Thanks for the advice here- Thaivisa really is a blessing!