Rejected application - Evidential Flexibility

[raj.m]

Hey everyone!

My tier 1 entrepreneur extension application was refused and one of the reasons was as below:

Creation of jobs in the UK
points awarded 0

You have claimed points on the basis that you have created the equivalent of two new full-time paid jobs for people settled in the UK and that these jobs have each existed for at least 12 months.

As evidence of this, you have supplied: Identity documents, accountants letter, wage slips, p11, p45 and p60 documents, companies house filing history and RTI submission logs.

Paragraph 46-SD(h) of Appendix A of the immigration rules lists the specificed that is required to demonstrate the creation of jobs.

The evidence that you have submitted above is not acceptable because the submission logs supplied do not meet the requirement at 46-SD (h) (i) because we require RTI submissions for each employee for each month of employment showing PAYE.

We have therefore been unable to award points for Attributes in accordance with Appendix A.

RTI information that I provided: 1)

However, I believe I should have provided 1) as well as 2)

Now, if I apply for an admin review, can I base my case on (iv)A document does not contain all of the specified information from the below paragraph?

245AA.Documents not submitted with applications
(a)Where Part 6A or any appendices referred to in Part 6A state that specified documents must be provided, the Entry Clearance Officer, Immigration Officer or the Secretary of State will only consider documents that have been submitted with the application, and will only consider documents submitted after the application where they are submitted in accordance with subparagraph (b).
(b)If the applicant has submitted specified documents in which:
(i)Some of the documents in a sequence have been omitted (for example, if one bank statement from a series is missing);
(ii)A document is in the wrong format (for example, if a letter is not on letterhead paper as specified); or
(iii)A document is a copy and not an original document; or
(iv)A document does not contain all of the specified information;

What do you guys think? I understand that I should have provided 1) as well as 2) in relation to my RTI documents. But as I provided 1), can I appeal that I provided the RTI information but it wasn't complete information and I should have been given a chance to provide further information by the caseworker by exercising evidential flexibility?

Will this stand any chance? What are your views?

Many thanks

[zimba]

If I am not mistaken, you were refused not only because of your RTI but also your Current Appointments Report. Evidential flexibility rules do not apply if your application falls for refusals based on other missing documents (however you said that you sent the latest CAR)
Given the recent ruling in the court of Appeal you might have a small chance to argue http://www.immigrationboards.com/uk-tie ... 08952.html

However given that you cannot appeal any more and AR is pretty much useless, it will be quite difficult to argue a strong case as what you submitted was not an RTI FPS report with some missing info but simply an HMRC submission log for RTI. I personally think that the requirement to send FPS reports to prove you are reporting PATE is pretty dumb as everyone must be registered for PAYE as an employer

[thutmose]

i) Evidence to show you are reporting Pay As You Earn (PAYE) income tax
184. You must provide evidence to show you are reporting Pay As You Earn (PAYE) income tax appropriately to HMRC. Acceptable evidence includes printouts of Employee Payment Records, Real Time-Full Payment Submissions (either a series of individual monthly submissions, including the first submission or summaries),

There is a question on the form asking when did you first submit FPS. And then need to put the date.
What did they mean by the above line? DO they wanna see the very first FPS too even though no point claiming employee was there?

[helpingperson]

i) Evidence to show you are reporting Pay As You Earn (PAYE) income tax
184. You must provide evidence to show you are reporting Pay As You Earn (PAYE) income tax appropriately to HMRC. Acceptable evidence includes printouts of Employee Payment Records, Real Time-Full Payment Submissions (either a series of individual monthly submissions, including the first submission or summaries),

There is a question on the form asking when did you first submit FPS. And then need to put the date.
What did they mean by the above line? DO they wanna see the very first FPS too even though no point claiming employee was there?

You need to ask this from your accountant and he can provide you date of First FPS Run from the system.

[thutmose]

Thanks.
Yes I know the date. But do I need to send a copy of the first FPS too.

Zimba since you have extended yours, did you send the first one?

[zimba]

Zimba since you have extended yours, did you send the first one?

Yes, the FPS report in the first month of employment shows the starter's name and date

[aby00156]

@raj.m
You were rejected on two reasons.
1. Missing FPS
2. CAR dated 05 November 2012

You can fight for point number 2 i.e. CAR dated 05 November 2012 but there is no way out for point number 1 i.e. Missing FPS. FPS seems mandatory.

Please don't waste time in AR. I would suggest you to prepare your application correct this time and re-apply again if you can.

[raj.m]

This is what my solicitor has come up with for my admin review. I was refused for two reasons: 1) For not providing the recent CAR and 2) For not providing the FPS report. However, the fact is I did send them a recent CAR from 2016. In regard to FPS, I only sent them FPS receipts and not the report with employees' names and PAYE details. What do you guys think of the below written paragraphs? I am not satisfied with it as it makes no reference to the second reason of refusal, and planning on applying for admin review myself and write everything in a common man's language. What are your views?

We write with respect to our above named client who has application has been refused

for failure to meet the requirements under the Immigration Rules and Policy for grant of

Further Leave to Remain as a Tier 1(Entrepreneur) Migrant.

We respectfully submit that the decision is erroneous and we request that the decision is

reviewed and our client’s application granted as the case working team made an error in

failing to consider the Home Office Published Guidelines with respect

to Further Leave to Remain applications, specifically in relation to the policy of

Evidential flexibility as contained in Paragraph 245AAA of the Immigration Rules.

We refer to the our client’s cover letter sent in support of his application and we refer page

one of the aforementioned cover letter in which our above named client listed ALL the

documents sent in support of his application and amongst others also included ‘ Current

Appointments Report including the filing history page (14/03/2016)’. We note that a failure

to provide a Companies House Current Appointments Report for Kult Marketing Ltd dated

within three months of the application is listed as the reason for refusal in addition to non

acceptance of the evidence supplied by our client in furtherance of Paragraph 46-SD (h) of

Appendix A of the Immigration Rules.

We respectfully submit that the decision to refuse the application for further leave to remain

is erroneous as the Secretary of State has failed to adhere to the provisions of the Immigration

Rules as well as her own published policy guidance with respect to the principle of Evidential

Flexibility.

This brings into play the common law duty of acting fairly in the decision making process. In

R (on the application of Q and others) v Secretary of State for the Home Department [2003]

EWCA Civ 364 the Court of Appeal dealt with the principle of fairness as follows:



“69. ...It is further common ground that in deciding whether the applicant has so satisfied

him the Secretary of State must act fairly, which means both that he must set up a fair system

to enable the decision to be made and that he must operate the system fairly: see e.g. Gaima v

Secretary of State for the Home Department [1989] Imm AR 205, applying Re HA (Infant)

[1967] 1QB 617 at 630.

What fairness requires of course depends upon the circumstances of the case. The underlying

principles were stated thus in a well known passage in the speech of Lord Mustill in R v

Home Secretary ex Doody [1994] 1AC 531 at 560:

‘What does fairness require in the present case? My Lords, I think it unnecessary to refer by

name or to quote from, any of the other cited authorities in which the court have explained

what is essentially an intuitive judgement. They are far too well known. From them, I derive

that (1) where an Act of Parliament confers an administrative power there is a presumption

that it will be exercised in a manner which is fair in all the circumstances. (2) The standards

of fairness are not immutable. They may change with the passage of time, both in the general

and in their application to decisions of a particular type. (3) The principles of fairness are not

to be applied by rote identically in every situation. What fairness demands is dependent on

the context of the decision and this is to be taken into account in all its aspects. (4) An

essential feature of the context is the statute which creates the discretion, as regards both its

language and the shape of the legal administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the

decision will have an opportunity to make representations on his own behalf either before the

decision is taken with a view to producing a favourable result; or after it is taken, with a view

to procuring its modification; or both. (6) Since the person affected cannot usually make

worthwhile representations without knowing what factors may weigh against his interests

fairness will very often require that he is informed of the gist of the case which he has to

answer.’

We note that our client infact made reference to the existence and provision of a current

appointments report in his cover letter, sent with his application, a copy of which is in the

possession of the Secretary of State currently, and that ought to have put the Secretary of

State on notice that the document was in existence and not having considered this document

properly in deciding our client’s application, has been unfair to our client and we argue

further that the principle outlined by Lord Mustill applies to our clients case and the

circumstances of his case ought to have been considered before a decision to refuse was

made. We believe that had that been the case, our client would have had an opportunity to

provide any missing documents from those submitted.

We contend further, from the above, that our client has been unfairly treated by your refusal

of his application for further leave to remain and we invite you at the point to review the

decision, withdraw it and grant further Leave to Remain.

[raj.m]

Any comments on the above please?

I would really appreciate your help

[cappachino]

Any comments on the above please?

I would really appreciate your help

Instead of paying for the solicitor and going through all the hassel wouldn't it be feasible just to pay and submit a new application with updated docs.

[sm12]

You can develop this letter to add the points that you think are missing.

[yang_81]

any update regarding AR? I am in the similar position

[sm12]

Yang,

When did you apply? Do you have leave remaining?

[Priceless Jay]

I have gone through a similar problem.please if you don't have leave, do AR to have leaves on section 3c before new application

[Nzekells]

I wish I am wrong but even if Op does AR as advised, 3C will still break if OP submits a new application. Please tell me I am wrong, somebody.

[sm12]

I have gone through a similar problem.please if you don't have leave, do AR to have leaves on section 3c before new application

Did you also have missing FPS and then reapply?

[yang_81]

I applied on March, I dont know if I should go for AR, I was been informed that AR was weak as I missed FPS. I need either submit AR asap or make new application. But again, HO havent returned my documents, if I request them to return, it will take 10 working days:(

[yang_81]

my leave was expired on March, but I think if I make a new application within 28 days after I received refuse decision of previous application on May, it should not break the rule.

[raj.m]

Guys, I just received the decision of my AR this morning and they overturned the decision and have granted me the visa. Thank you everyone for your help!

[awan905]

Guys, I just received the decision of my AR this morning and they overturned the decision and have granted me the visa. Thank you everyone for your help!

Raj.m just saw this, I have been rejected for same reason and may I know what additional documents you submitted and would be be able to provide sample links.

[raj.m]

Guys, I just received the decision of my AR this morning and they overturned the decision and have granted me the visa. Thank you everyone for your help!

Raj.m just saw this, I have been rejected for same reason and may I know what additional documents you submitted and would be be able to provide sample links.

Hi, you aren't allowed to submit extra docs with your AR. I just wrote my arguments as to why I felt their decision was incorrect and they overturned it. I made a separate thread on this in which I posted the exact arguments that I wrote in my AR. Please feel free to go through that thread

[awan905]

Guys, I just received the decision of my AR this morning and they overturned the decision and have granted me the visa. Thank you everyone for your help!

Raj.m just saw this, I have been rejected for same reason and may I know what additional documents you submitted and would be be able to provide sample links.

Hi, you aren't allowed to submit extra docs with your AR. I just wrote my arguments as to why I felt their decision was incorrect and they overturned it. I made a separate thread on this in which I posted the exact arguments that I wrote in my AR. Please feel free to go through that thread

Thanks and I am thinking to go for a new application now though my case is defendable in front of judge in JR but that will take long time.

[sedra]

Guys, I just received the decision of my AR this morning and they overturned the decision and have granted me the visa. Thank you everyone for your help!

Raj.m just saw this, I have been rejected for same reason and may I know what additional documents you submitted and would be be able to provide sample links.

Hi, you aren't allowed to submit extra docs with your AR. I just wrote my arguments as to why I felt their decision was incorrect and they overturned it. I made a separate thread on this in which I posted the exact arguments that I wrote in my AR. Please feel free to go through that thread

raj could you please put the link to the thread you mentioned? The same situation for me refused but I provided the docs that they mention is missing from the application.
And how long does it take they make the decision after AR?

[Mrchaany]

Sorry why are you' not mention those documents here.
I which documents missing

[samaygrg]

Guys, I just received the decision of my AR this morning and they overturned the decision and have granted me the visa. Thank you everyone for your help!

Congratulations Mate!