Can I be self employed during appeal of FLR (FM)?

[Douglas13]

Thank you in advance for any help answering this question: "Can I be self employed whilst appealing the refusal of my FLR (FP) application?"

Brief background:

I am an American (please don't hold it against me!) who moved to the UK in 2002 to follow my British girlfriend who had been living in the USA for several years and wanted to return to her family and friends in London after 11/9. We were married in the UK in 2003 and started a family. In 2007 I was transferred back to the USA and in 2012 my eldest son died tragically. My (now ex) wife and I separated a few weeks later and she decided to move back to the UK with my surviving son a month later.

In order to be within "hugging distance" of my surviving son I took the first job I could find that offered a work visa (Tier 2 - General Migrant) and in 2013 (nearly one year later) and moved back to the UK. This has made a significant positive impact on my son, who had suffered from the loss of his brother and father amidst moving country, all within one month. I survived on Skype calls, which were painful an exercise in emotional restraint. I had to maintain my strength for my son despite the pain of our separation and our grieving for our lost child.

Two weeks before I would have been in continuous employment for two years I was summarily dismissed, which I am fighting in the Employment Tribunal. My boss, unbeknownst to me, had a habit of hiring and firing most of his executives inside of the two year mark, which contractually enabled him to keep all commissions and bonuses. I have a strong case.

Since my Tier-2 visa was tied to my employment I spoke with an immigration law firm who ultimately represented me in submission of FLR( FP) as the parent of a British Citizen (7.5 years old at the time of application on 28 Sep 2015). Since we were working to tight deadlines I signed the necessary pages and paid the fees in advance of the application being completed, and it was sent to the Home Office without it being sent to me to review.

The application was refused and my law firm explained that they "did not have the relevant expertise to handle appeals" since the solicitor managing my case had suddenly left the firm without my being informed. The Refusal Letter cited incorrect information, so I obtained a copy of the FLR (FP) as sent by my law firm and discovered numerous mistakes, the most significant of which was in their cover letter, citing the incorrect date of my termination from my past employer, which according to the Home Office had me living in the UK in breach of the immigration laws by 35 days. In actual fact I was within the 28 day grace period. The result was failing on all counts.

EX.1. should have applied, but the Home Office decided that the Support Letter from my ex-wife was a forgery because the signature on the letter didn't match the signature in her passport. They did not attempt to verify this with my ex-wife who had offered to appear or speak to answer any questions in her letter. One of two letters from my son's school was not considered, and it confirmed all of the information about being an emergency contact and maintaining regular contact with my son and participating at every parent teach meeting.

The law firm confirmed in writing that during the initial review of FLR (FP) I would maintain the right to remain in the UK and work without restriction. When asked to confirm after my solicitor's departure the firm has gone quiet. Their position now is that I do not have the ability to work, which is contrary to information appearing in the Home Office guidance on these matters.

It has been difficult to find work in my niche, saturated industry, and I have been unemployed without income since 03 Sep 2015. I am now out of money, have no more avenues to borrow, have no recourse to public funds, and need to keep a roof over my son's head and food in his body. I cannot do this without working.

I received an offer as an independent, self employed contractor that was rescinded this week because, according to the employer, my right to remain could not be verified on a self employed basis. This is devastating. I desperately need to money and am now facing eviction by my landlord.

So I need to point this/any employer toward the relevant Guidance confirming my ability to work in a self employed capacity during my appeal. It has taken three weeks to obtain all of the documents from my ex-law firm to submit with the initial online appeal submitted on 25 Feb 2016 and I expect to submit them next Wednesday 23, nearly one month later.

Thank you for any help or direction that you can offer. The wellbeing of a your British boy is in serious jeopardy, and the Home Office seems not to care.

Regards,

Douglas13

[Douglas13]

Thank you in advance for any help answering this question: "Can I be self employed whilst appealing the refusal of my FLR (FP) application?"

Brief background:

I am an American (please don't hold it against me!) who moved to the UK in 2002 to follow my British girlfriend who had been living in the USA for several years and wanted to return to her family and friends in London after 11/9. We were married in the UK in 2003 and started a family. In 2007 I was transferred back to the USA and in 2012 my eldest son died tragically. My (now ex) wife and I separated a few weeks later and she decided to move back to the UK with my surviving son a month later.

In order to be within "hugging distance" of my surviving son I took the first job I could find that offered a work visa (Tier 2 - General Migrant) and in 2013 (nearly one year later) and moved back to the UK. This has made a significant positive impact on my son, who had suffered from the loss of his brother and father amidst moving country, all within one month. I survived on Skype calls, which were painful an exercise in emotional restraint. I had to maintain my strength for my son despite the pain of our separation and our grieving for our lost child.

Two weeks before I would have been in continuous employment for two years I was summarily dismissed, which I am fighting in the Employment Tribunal. My boss, unbeknownst to me, had a habit of hiring and firing most of his executives inside of the two year mark, which contractually enabled him to keep all commissions and bonuses. I have a strong case.

Since my Tier-2 visa was tied to my employment I spoke with an immigration law firm who ultimately represented me in submission of FLR( FP) as the parent of a British Citizen (7.5 years old at the time of application on 28 Sep 2015). Since we were working to tight deadlines I signed the necessary pages and paid the fees in advance of the application being completed, and it was sent to the Home Office without it being sent to me to review.

The application was refused and my law firm explained that they "did not have the relevant expertise to handle appeals" since the solicitor managing my case had suddenly left the firm without my being informed. The Refusal Letter cited incorrect information, so I obtained a copy of the FLR (FP) as sent by my law firm and discovered numerous mistakes, the most significant of which was in their cover letter, citing the incorrect date of my termination from my past employer, which according to the Home Office had me living in the UK in breach of the immigration laws by 35 days. In actual fact I was within the 28 day grace period. The result was failing on all counts.

EX.1. should have applied, but the Home Office decided that the Support Letter from my ex-wife was a forgery because the signature on the letter didn't match the signature in her passport. They did not attempt to verify this with my ex-wife who had offered to appear or speak to answer any questions in her letter. One of two letters from my son's school was not considered, and it confirmed all of the information about being an emergency contact and maintaining regular contact with my son and participating at every parent teach meeting.

The law firm confirmed in writing that during the initial review of FLR (FP) I would maintain the right to remain in the UK and work without restriction. When asked to confirm after my solicitor's departure the firm has gone quiet. Their position now is that I do not have the ability to work, which is contrary to information appearing in the Home Office guidance on these matters.

It has been difficult to find work in my niche, saturated industry, and I have been unemployed without income since 03 Sep 2015. I am now out of money, have no more avenues to borrow, have no recourse to public funds, and need to keep a roof over my son's head and food in his body. I cannot do this without working.

I received an offer as an independent, self employed contractor that was rescinded this week because, according to the employer, my right to work could not be verified on a self employed basis. This is devastating. I desperately need to make money and am now facing eviction by my landlord.

So I need to point this/any employer toward the relevant Guidance confirming my ability to work in a self employed capacity during my appeal. It has taken three weeks to obtain all of the documents from my ex-law firm to submit with the initial online appeal submitted on 25 Feb 2016 and I expect to submit them next Wednesday 23, nearly one month later.

Thank you for any help or direction that you can offer. The wellbeing of a your British boy is in serious jeopardy, and the Home Office seems not to care.

Regards,

Douglas13

[Douglas13]

Thank you in advance for any help answering this question: "Can I be self employed whilst appealing the refusal of my FLR (FP) application?"

Brief background:

I am an American (please don't hold it against me!) who moved to the UK in 2002 to follow my British girlfriend who had been living in the USA for several years and wanted to return to her family and friends in London after 11/9. We were married in the UK in 2003 and started a family. In 2007 I was transferred back to the USA and in 2012 my eldest son died tragically. My (now ex) wife and I separated a few weeks later and she decided to move back to the UK with my surviving son a month later.

In order to be within "hugging distance" of my surviving son I took the first job I could find that offered a work visa (Tier 2 - General Migrant) and in 2013 (nearly one year later) and moved back to the UK. This has made a significant positive impact on my son, who had suffered from the loss of his brother and father amidst moving country, all within one month. I survived on Skype calls, which were painful an exercise in emotional restraint. I had to maintain my strength for my son despite the pain of our separation and our grieving for our lost child.

Two weeks before I would have been in continuous employment for two years I was summarily dismissed, which I am fighting in the Employment Tribunal. My boss, unbeknownst to me, had a habit of hiring and firing most of his executives inside of the two year mark, which contractually enabled him to keep all commissions and bonuses. I have a strong case.

Since my Tier-2 visa was tied to my employment I spoke with an immigration law firm who ultimately represented me in submission of FLR( FP) as the parent of a British Citizen (7.5 years old at the time of application on 28 Sep 2015). Since we were working to tight deadlines I signed the necessary pages and paid the fees in advance of the application being completed, and it was sent to the Home Office without it being sent to me to review.

The application was refused and my law firm explained that they "did not have the relevant expertise to handle appeals" since the solicitor managing my case had suddenly left the firm without my being informed. The Refusal Letter cited incorrect information, so I obtained a copy of the FLR (FP) as sent by my law firm and discovered numerous mistakes, the most significant of which was in their cover letter, citing the incorrect date of my termination from my past employer, which according to the Home Office had me living in the UK in breach of the immigration laws by 35 days. In actual fact I was within the 28 day grace period. The result was failing on all counts.

EX.1. should have applied, but the Home Office decided that the Support Letter from my ex-wife was a forgery because the signature on the letter didn't match the signature in her passport. They did not attempt to verify this with my ex-wife who had offered to appear or speak to answer any questions in her letter. One of two letters from my son's school was not considered, and it confirmed all of the information about being an emergency contact and maintaining regular contact with my son and participating at every parent teach meeting.

The law firm confirmed in writing that during the initial review of FLR (FP) I would maintain the right to remain in the UK and work without restriction. When asked to confirm after my solicitor's departure the firm has gone quiet. Their position now is that I do not have the ability to work, which is contrary to information appearing in the Home Office guidance on these matters.

It has been difficult to find work in my niche, saturated industry, and I have been unemployed without income since 03 Sep 2015. I am now out of money, have no more avenues to borrow, have no recourse to public funds, and need to keep a roof over my son's head and food in his body. I cannot do this without working.

I received an offer as an independent, self employed contractor that was rescinded this week because, according to the employer, my right to remain could not be verified on a self employed basis. This is devastating. I desperately need to money and am now facing eviction by my landlord.

So I need to point this/any employer toward the relevant Guidance confirming my ability to work in a self employed capacity during my appeal. It has taken three weeks to obtain all of the documents from my ex-law firm to submit with the initial online appeal submitted on 25 Feb 2016 and I expect to submit them next Wednesday 23, nearly one month later.

Thank you for any help or direction that you can offer. The wellbeing of a your British boy is in serious jeopardy, and the Home Office seems not to care.

Regards,

Douglas13

[vinny]

Unfortunately, no.

If you made an application prior to expiry of your leave or prior to your leave being curtailed, then your leave is treated as continuing under Section 3C/3D.

Self-employment will be contrary to 245HC(d)(iii) and 245HE(d)(iii).

Else, if you made an out-of-time application, then you are an overstayer and cannot work anyway.

[Douglas13]

Dear Vinny,

Thank you for your sage reply.

Is there any chance that we could have a quick phone call at your earliest opportunity? I would be able to answer all questions in real time and avoid the need to go back and forth via this message board. Of course, I recognise the importance that such messages will have for others with the same issues and would be happy to post a summary, but I am running out of time and my son's future is at stake. Please let me know if this is possible. As a moderator perhaps you have access to the email address I used to register? Direct contact through that email would facilitate this process. Please let me know urgently. I am already indebted to you for your assistance thus far.

In response to your points:

1. My Tier 2 General visa expired on 29 Sep 2015. My termination date was 2 Sep 2015. I submitted an application for leave to remain under the 5&10 year Praent route via Form FLR(FM) on 28 Sep 2015 (from within the UK where I am currently), which was refused on 11 Feb 2016. The law firm that represented me at the time (Solicitors name removed by moderator) made myriad mistakes on my application form, in particular my termination date in their cover letter (they subsequently admitted this and issued both an apology and separate letter to the Tribunal in support of my appeal, which they "lack the relevant expertise to deal with"). This mistake, despite being easily verified as such by my P45 and termination letter (both of which were provided with FLR(FP), prompted the Home-O to decide that I did not meet the requirement under E-LTRPT.3.2.(b) of Appendix FM. Though I am appealing this decision, their view is that is that I "have remained in the UK in breach of the immigration laws for a period of 35 days..." This is false.

Q1: What does this do to my ability to work in the UK today?

2. Not sure that 245HC(d)(iii) applies since I applied and have remained in the UK throughout this process. Re Also re 245HE(d)(iii).Same with FMFLR(FM)...

Where does this leave me?

Thank you,

Douglas13

[vinny]

I don't think that you were in breach of your Immigration laws, if your leave wasn't curtailed and you made an in-time application. Your Tier 2 (General) leave was treated as continuing. However, you would become an overstayer after your appeal or AR rights are exhausted and you have no leave to remain. Did they give you an in-country right of appeal? Did you appeal in-time against the refusal?

Unfortunately, neither Tier 2 (General) holders nor overstayers are permitted to be self-employed.

See also Any good law firm recommendation?

[Obie]

Even if the Original poster had overstayed, which I perfectly agreed with Vinny is not the case, I believe Ex 1 (a) will be engaged, and it appears on the face of things, that there is a genuine and subsisting relationship with a British Child.

Refusal in those circumstances seems unduly harsh.

[Obie]

An important question of law arises here, which is :

Having regards to Section 3C , would this OP be entitled to work for any other employer other than the one that sponsored the Tier 2 application.

That question in my view can only be answered in the negative, I therefore hold a contrary view to the solicitor.

[Douglas13]

Dear Vinny and Obie,

Thank you for your replies.

I am now beyond desperate, trying to ensure the wellbeing of my 7-year old British son. I have received conflicting interpretations of my right to work in the UK from prospective employers, immigration advocates at the local Migrant Centre, and the various Home Office Guidance I have reviewed on the subject. My head is spinning and I really need some help!

To comment on/answer the issues/questions you have most recently posed:

a. @Vinny: I was not in breach of immigration laws as I submitted the FLR(FP) 4 days inside of the 28-day grace period. The law firm representing me at the time, by their subsequent admission (documented on a letter to the Tribunal), committed a "typographical error" on their cover letter that the Home Office didn’t verify against the termination letter or P45 included in the attachments to the application. Their decision was that I had overstayed by 35 days, which is false.

b. @Vinny: My leave was not curtailed and I was given an in-country right of appeal (within 14 days of the date of the letter), which I filed via the website on the 14th day after the Home Office sent their refusal letter (that took 7 days to reach me). As mentioned above I can demonstrate conclusively that my FLR(FP) was also submitted on time. My hope (and expectation based on initial statements from my solicitors) was that during the initial assessment of FLR(FP) my right to work was preserved for any company offering employment, and again during the appeal. The guidance appears to support this but upon reflection could be interpreted to be limited to the sponsoring company.

c. @Obie: EX.1. should absolutely be engaged. It is astounding how such critical information (my ex-wife’s support letter because the “signature does not match the one in her passport,” and the letter from the Headmistress of my son’s school (confirming I have been an emergency contact since I moved to the UK, that I attend all parent/teacher meetings, and all sporting events/assemblies) was disregarded and ignored (not mentioned).

d. @Obie: regarding your comment about not being able to work for any other employer (as regards to Section 3C) my heart in my ankles. THIS IS THE CRITICAL POINT RIGHT NOW. I was told by my original solicitor that my working rights would be maintained during the initial application assessment period, in writing. She informed me that I could work anywhere I wanted and in her cover letter to the Home Office even stated that I was in the process of finding employment. Many mistakes were made on the application form, she left the firm amidst some kind of controversy, and now the firm’s position is that I cannot work at all in the UK. The guidance suggests otherwise, as was pointed out to me by an antagonist advocate at my local migrant centre (p20 of “An employer’s guide to right to work checks” May 2015). “A Positive Verification Notice from the Home Office Employer Checking Service will also be required to demonstrate a right to work where the person has an outstanding appeal or administrative review. It will provide a statutory excuse for six months from the date of the Notice. Administrative reviews have replaced many rights of appeal where the applicant believes our decision to refuse their application incorrect. For decisions made in the UK, the review must be made within 14 calendar days from notification of the decision. Any previous permission to work continues during the period that an administrative review can be made and, if made, will continue until the administrative review has been determined (decided or withdrawn). This will normally be within 28 days. You will need to obtain a Positive Verification Notice from the Employer Checking Service, to confirm that an administrative review may be made or has not been determined. This Notice will provide you with a statutory excuse for six months from the date of the Notice. Where an application for an administrative review is brought after the period for making an administrative review has expired, we may decide to accept the administrative review as valid because it would be unjust not to consider it. If so, any permission to work will continue from the date we accept that the administrative review is valid. This will be confirmed by a Positive Verification Notice from the Employer Checking Service. The migrant will not be permitted to work between the date that their previous permission to work time expired and the date we decide that the administrative review is valid. Further detail on administrative reviews may be found here https://www.gov.uk/government/publicati ... ive-review” But this could be interpreted to be limited to the sponsor of the Tier 2 visa. It’s unclear, but Obie’s comments have me frightened.

So, the big questions are:

Q1. Can I work for any other employer than the one that sponsored me for my Tier 2 visa?

Q2. If yes to Q1, (I pray!) then what would I need to provide to a future employer to obtain a Positive Verification Notice from the Home Office?

Q3. If no to Q1, is there any recourse I have NOW to get leniency on work permission if tied to Tier 2 since I was wrongfully terminated and am taking my previous employer to the Employment Tribunal? Is the “presumption of innocence” involved in UK employment/immigration law? It seems not… Delighted to share more details about this…

Q3. Is there a time limit by when I need to submit the documentary evidence to support my online appeal? I can only see that they should be submitted “promptly” which is no limit at all. As I mentioned in the online application, I didn't have all the docs needed as I had to obtain from the old law firm, who had become difficult after the refusal... Do I need to submit the full content of the original submission even if it wasn’t referenced in the refusal letter (to give the Tribunal the complete picture) or is it sufficient to provide only evidence pursuant to their decisions? It seems obvious that the Home Office ignored the attachments anyway, claiming in the refusal letter that I “provided no evidence” of being in my son’s life despite emails between my ex-wife and school confirming parent/teacher meetings, over 50 photographs deliberately selected to show a great variety of shared experiences and confirm weekly continuous contact from the day I arrived to the day I submitted the application (though the law firm only printed them and sent with the application and didn’t record the metadata), copies of receipts for gifts for Xmas that were sent to my address and given to him at his flat Xmas morning, etc.

Q4. If I can’t work here at all then I have a real problem. Is there any way I could work as a representative of a business from another country (I know there is a separate visa for this), and would it make a difference whether or not that country were within the EU? The issue is that, as a result of wrongful termination (currently pursuing through the Employment Tribunal) from the company that sponsored my Tier 2 Migrant visa I clearly cannot go back to work there. Coupled with the (erroneous) decision that I overstayed, if I cannot work here I am forced to go back to the USA where I can work. That would mean forfeiting my appeal, and that would tacitly accept the Home Office’s decision that I have overstayed, which would ban me from entering the UK for up to 10 years, I was told. So am I trapped in the UK without income, ability to support myself, and my son (but have access to him) or do I go back to the USA and submit a new application from outside the UK???

Q5. Partner option – After submitting the original FLR(FP) in late September 2015 my relationship with an Italian citizen now living in the UK has progressed to the point of us being “partners” and we have been living together since mid-October. I could use the same form FLR(FP) to seek the 10-year Partner route and assuming I can satisfy the requirements, would I be able to book a rush appointment and have this resolved immediately? Would the Home Office link my appeal and the new application? Would I first have to book the appointment, then withdraw the present appeal, then await the return of my documents, and then have the appointment? What if the return of the documents/passport takes longer than the time it takes to leave? I suppose that would be impossible, but it could arrive on the day of departure, which would be too late, no?

Q6. It has been suggested to me that my best bet would be to withdraw the appeal and submit a new application. To me that sounds as though I would be accepting the Home Office’s decision and that would mean that I am an overstayer and subject to removal/no re-entry for up to 10 years. Can you share your thoughts on this strategy within the context of my situation and whether or not this makes sense?

Q7. If I were to withdraw my appeal in favour of Q5/Q6, above, how much time would I be granted before being forced to leave the country?

In closing, I have gone as far as I can on credit, loans, overdraft, and selling my possessions. I have nothing left of cash value in the UK other than my potential productivity, which is seemingly in the balances. I need to feed my son and keep a roof over his head. I have no money to pay for a solicitor and if I did it would go to my son first, my rent and running costs second. I’ve been running on fumes and the engine is now seizing. This is dire, but somehow, I have a feeling that all will be well, as I am on the right side of all arguments, I have been compliant, and despite being victimised by various parties along the way I am not a victim. I will figure this out, but your help and advice in this forum could be the difference!

As always, your considerable experience and interpretation of the various Home Office Guidance is tremendously appreciated.

Please let me know your thoughts on the above and whether you have any further questions. I am happy to upload documents in support of any and all claims.

Breathe in, breathe out. Repeat. Everything will be fine and revealed in the data. I just need the right dataset.

Thank you,

Douglas13

[vinny]

Under Section 3C/3D, your rights to work is maintained, subject to your Tier 2 (General) conditions. If they grant you new leave, then your work status would be subject to the new leave.

[pal4759]

Hi Douglas 13,
I have read your posts and quite curious to know of your current situation? If you could please update.
Regards,
Pal4759

[CR001]

Hi Douglas 13,
I have read your posts and quite curious to know of your current situation? If you could please update.
Regards,
Pal4759

This member has not logged into the forum since 4th April 2016.