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Following on from yesterday, I have had a moment and thought as a direct access immigration barrister I would add the second article in the promised in this short series on paragraph 322(5) of the Immigration Rules HC395.

These are the individuals who are those who have made an application and are awaiting a decision and have varied the application.

There are two or three types of people, those who are thinking of changing to a SET LR or O and those who have changed by filling in a form and those who have actually made an application.

The key factor is that if your application is refused for SET LR or O on the basis of 322(5) yes it bites here, then you will be caught by the same provision you have sought to escape. The issue is whether the Secretary of State gives you a right of appeal or certifies the claim as clearly unfounded.

This depends on what went or is going to go with the SET form – if it is just a covering letter saying you have lived in the UK for 10 years you run the risk of certification and no right of appeal and needing a JR – which will have limited prospects unless you can show innocent mistake at the beginning.

I have had clients come to me with a variation to SET LR or O and thinking that they are ok as they will have an appeal and that this will carry them over the 10 years by virtue of section 3C – or even some who have made FLR FP then once got to 10 years varied it to SET LR – but who have put no supporting material. I feel sorry for this group. They run a massive risk of certification. And lawful certification at that.

The key to obtaining a right of appeal is to actually put in evidence and detailed representations explaining a. why they should be allowed to remain in the UK, are they married for instance, do they have children, or very close family or exceptional circumstances. It also allows them to explain and put in new evidence to explain why the tax papers were wrong.

If you can show a life in the UK as well as put evidence in as to why you are not dishonest you stand a much greater chance of getting a right of appeal, and consequently having your leave extended under Section 3C – with the consequence of being able to work for anything up to 18 months, I have had appeals listed for mid next year and the appeal process can take a further 8 months.

Therefore it is vital that any variation application is as detailed as possible otherwise you will have either wasted your time or more likely paid an advisor and the HO extra money for nothing of any real consequence.

There is good news though, but one must act quickly, if the variation application has been made, then the next step is to see me or another reputable lawyer, though I have done a number of these now and put in additional submissions and evidence in support of the SET LR  O application. The good thing is that if you do submit this evidence, unlike a lot of the Points Based System (“PBS”) applications the Home Office / Secretary of State will look at the additional material. If she does not look at the material then the Secretary of State is likely to suffer at an appeal if one is granted or you will have an excellent JR ground to raise.

The only issue with the above is that if you have an outstanding application you do not know when it will be refused, it is therefore vital to get any supporting documents in as soon as possible.

I and my team are running extra clinics and can see you later or earlier or by phone / email to discuss / prepare the additional representations that might, just might, get you the right of appeal that gives you the opportunity to speak in person (you can’t in JR) and to have witnesses speak on your behalf to a Judge.

These appeals, especially where there are exceptional circumstances and the evidence is good, offer among the best prospects of success.

Please do not delay, it is much easier to rectify before rather than later as any barrister or solicitor will tell you

Please feel free to call / email at any time and we at Imperium Chambers, including Paul Turner, a well respected direct access immigration barrister and others such as the excellent Jay Gajjar who trained under Paul are waiting to help.