Adverse decisions of the UKBA refusing an application for leave to remain often contain an inconspicuous line saying “a decision has also been made to remove you from the UK under s. 47 of the Immigration, Asylum and Nationality Act 2006”.
Some unsuccessful applicants do not take notice, others take offence. Indeed, for a Tier 4 migrant who has completed studies and seeks to take up employment under Tier 2 scheme, or for a Tier 1 Post Study Work migrant who is applying for leave to remain in the UK as a sponsored worker under Tier 2 or a Tier 1 entrepreneur, the line might sound like an insult nonchalantly added to injury. In fact it is not. To many it might come as a blessing in disguise. Why so?
The simple answer is the decision is not in accordance with the law as the law requires division between insult and injury – in other words decision to remove under s. 47 cannot be served with the decision refusing the substantive application. Strictly speaking, the Secretary of State would need a massive stroke of luck to serve the s.47 decision in accordance with the law, as the only time when it can be served lawfully is after the applicant is notified of the adverse decision on his application and before an appeal is lodged against this decision, but not later than the right of appeal expires where no appeal has been lodged. Not surprisingly, a body more agile, even if equally omniscient as the UKBA is needed to fit this in at the right time.
And a blessing it might be for those whose application for further leave to remain was refused for good reasons and who need time to pull together an application that would hold the ground.
Normally, an alternative application amending any irregularities in the previous application for leave to remain can be made within 28 days of expiry of the visa or within 28 days from the date of the adverse decision, or within 28 days of the final outcome of an appeal where no right of residence is conferred on the appellant as a result of the proceedings. Sometimes applicants who had prepared the application without legal advice are not aware of the faults of the application until notified by the decision. And then they might need more than 28 days to rectify the faults.
At Kadmos Consultants we have had a series of successful appeals against s.47 decisions. Where the appellant is not successful on the main point of application – whether a mistake had been made in the certificate of sponsorship, or funds were not kept in the bank account for the required period of time and maintenance requirement had not been met at the relevant time – the second application made within 28 days of the appeal can sort out the problem.
There is one caveat about applications made within 28 days after the deadline – there is no right of appeal against refusals and there is no fresh 28 day period to correct any errors. So most important to get this second chance right!