Administrative Review - Refused Pls pls advice

[danmay]

Hi All,

My ILR was refused and my appeal was also refused as they cited reason under section 322. We have all HMRC docs and Home office earnings tie to HMRC, but HO say they original case worker fairly assessed and we should have provided enough supporting.

we gave then SA302 earnings in appeal too to show there is some confusion and hmrc letter clearly shows earnings claimed. but they are ignoring it,

I feel helpless. During first refusal they said i can live till my valid tier 1 till 2018.

Now they are saying on appeal letter u must leave UK immediately, which seems a mistake in the letter, but am confused.

Now I have 2 options either to go on spouse visa (my spouse is British Citizen) or go for judiciary review which is our preference as we know home office is confused and not looking at right information.

I cant go to India and have Judicial review as I am a new mom and I need to be with my daugher who dont have UK passport or oci card, though she is a citizen. Also can I not live in uk till 2018 tier 1 visa expiry and apply for JR.

I have 5 months old baby and I am really panicked and feel disappointed of case workers wrong evaluation. I am a Chartered Accountant working for a big corporate. Just lucky i am on maternity or this decision is a disaster. Also the earnings requirement was only 20k and not high, I had much over it which we showed.

Please advice, can I stay in country based on my tier 1 valid till 2018. Home office has confused me as they say I have to leave now or face consequences etc, which I think is a cut copy paste of their standard wordings and they are ignoring my tier 1 till 2018. Please help as I feel helpless due to case workers fault.

I called HO, one caseworker said u can definetely live as u have tier 1 and that attached para on leaving UK was a standard reply on refused appeals., the other one seemed confused and said follow the letter and leave.

Pls advise and thanks for reading long email

[danmay]

Just to add I had no taxes payable, my company shows my dividend income and I had no requirement to file self assessment. So I filed assessment immediately after they said on day of premium appointment. But again it was not fraudulent. I felt it was not needed as company tax was paid and am sole director taking dividends and declaring it. I showed sa302 in admin appeal but they rejected

Kindly also advise if I can make fresh application if rejected on grounds of sec 245 and 322.

[maverick2000]

did ur sa302s show ur dividend earnings?

[danmay]

Sa302 shows. Didn't show during premium appointment as sa302 was not filed as Self assessment was not required as no personal tax due. Corp tax was paid, dividends claimed and no personal no personal tax are due even after filing now.
They gave us 14 days in premium appointment to get it sorted but still refused in appeal too even though our application was filed last year and their first refusal came this July.

[maverick2000]

my sa302s were submitted late before my peo and I did not do SA due to the same reasons you have given above. I took additional documents including a letter from ca explaining he was the one who decided no to submit SA as it was not required. A web extract from HMRC website saying sa was not required also an extract from ACCA website stating the HMRC rule for SA not required. This is just unfair and a mistake on the HO but you should have taken these additional documents with u to make them understand in my case they did understand it.

[longhorn]

I think the paragraph about leaving UK is just standard letter. If you had valid leave to remain till 2018 and you have not been told that your visa has been curtailed then I cant think of any reason why you will be required to leave. You should be able to apply for JR but for this you'd probably require professional advice/assistance.

[danmay]

Can i make a fresh application now rather than judicial review. I have valid tier 1 till 2018?

[Wanderer]

Hi Danmay,
my opinion to you is you need to speak with good solicitor before you take any further step and also could you please reply my last post regarding updated sa302. thanks

I've lost track on who this thread is about now....

[danmay]

Moon82 you just hijacked my thread (.. But I can't help you as I am financial analyst and not into tax or accounting.

@Wanderer and other team members kindly advise on below

Can I make fresh application for ilr if I have tier 1 till 2018. This time I will take sa302 with me. I don't want to go for judicial review as it is expensive and time consuming.

Pls advise

[Obie]

Unless you visa is cutrailed, you do not have to go.

I will not advise you to apply under the family route, as you have a visa.

It is my view, that the JR is the most viable option.

[noajthan]

Moon82 you just hijacked my thread (.. But I can't help you as I am financial analyst and not into tax or accounting.

...

Pls advise

Extraneous posts removed to keep OP's thread on track.

[danmay]

Okie, instead of long winded Jr process, can I not use fresh application?

[danmay]

Hi all,

My ILR was refused and then home office held the decision in AR.

They have completely misunderstood my earnings. I am the sole director of my company and I didn't file self assessment because my personal tax liability was zero and never received notice from HMRC to file self assessment. My corporation tax returns were always filed on time and paid on time.
I had same day appointment for my ILR in Oct 2015 and it was refused in June 2016 under section 322(5) with 245CD (b) . However in between in November 2015, I filed self assessment for all previous years with tax payable as zero and got refund of for current year.

So I never avoided any tax and when I filed self assessment I got refund from HMRC. I am meeting several lawyers and they suggested I have 2 options 1) file a fresh application and 2) Judicial review.

I am confused and my question is should I go with fresh application or judicial review? What are the chances of success in both cases?

Sorry for long post. Please advice.

Cheers

[monty87]

Hi all,

I am confused and my question is should I go with fresh application or judicial review? What are the chances of success in both cases?

Sorry for long post. Please advice.

Cheers

I would suggest judicial review unless you have additional documantary evidence that could support your character in 2nd application. If you provided copy of tax returns submitted to hmrc at the time of peo application and tax advisors letter stating why you don't need to file self assessment being company director and the fact you had no outstanding tax even after submissions will support your pap/jr grounds that you did not have any intentions to mislead govt departments at the first place or tax evasion.

Not filing tax returns is considered negligence but you have genuine reasons to explain this in pap/jr and as a testament of your character you rectified it before peo application and Home Office has not taken these factors into consideration and only the timing to fix this error!

All the best and start researching on immigration policies around 322(5) and hmrc/taxation regulations. Success for 2nd application or JR will depend on weight of your argument and supporting evidence.

[Abc499]

Hi all,

My ILR was refused and then home office held the decision in AR.

They have completely misunderstood my earnings. I am the sole director of my company and I didn't file self assessment because my personal tax liability was zero and never received notice from HMRC to file self assessment. My corporation tax returns were always filed on time and paid on time.
I had same day appointment for my ILR in Oct 2015 and it was refused in June 2016 under section 322(5) with 245CD (b) . However in between in November 2015, I filed self assessment for all previous years with tax payable as zero and got refund of for current year.

So I never avoided any tax and when I filed self assessment I got refund from HMRC. I am meeting several lawyers and they suggested I have 2 options 1) file a fresh application and 2) Judicial review.

I am confused and my question is should I go with fresh application or judicial review? What are the chances of success in both cases?

Sorry for long post. Please advice.

Cheers

I do not think they misunderstood anything and you are not the only person they refuse on this reason. You have misunderstood that you do not need to submit self-assessment. from your previous post I see that you are a chartered accountant and working in a big corporate, you may know better but in general the rules says you MUST need to submit annual tax return for the period when you are/were a company director.

a limited company and you, both completely different entity. danmay limited made profit 100K and paid corporation tax on it means. In HMRC record this is recorded under danmay limited, there is nothing automatically goes to Mrs danmay HMRC account (only PAYE/salary goes under individual account too) . only when you submit self assessment and declare you have earn 80K dividend from danmay limited, then it will come to Mrs danmay account and it will say Mrs danmay this year income was 80K.

So even after 2 month of refusal if you think case worker misunderstood your income then it is highly likely that still you do not want to understand/accept the fact that you made the mistake in the fist place by not submitting the self-assessment. yes it is true that you had no intention to avoid any tax (as you says after submit also there is no tax due) but it was a mistake not to submit.

from previous post I see you have applier from T1G-ILR and the earning threshold was 20K. for tier-1 the requirement is simple and your personal earnings should be over the threshold (doesn't matter even if the company made 100K of which you are the sole director) . So simply the case worker refuse the application when they did not found earnings under your HMRC account. AR refused as they only check on AR that the case worker made any mistake or not, case worker did not made any mistake on the time when they refuse.

However, If your SA302 for the concerned tax years now says income above the threshold and even after the self-assessment submission there is no tax due then you may be able to prove in JR that there was no intention to avoid any tax and also you did not avoid any tax at all. JR could be viable option for you.

[danmay]

Thanks for reply. Just want to add I have my tier 1 visa valid till Feb 2018. So can I make fresh application too or should I go with JR?

[longhorn]

the rules says you MUST need to submit annual tax return for the period when you are/were a company director.

Yours is one of those unfortunate cases that became the victim of different understanding of rules between HMRC and Accountants. A lot of accountants believe that you do not need to file a tax return if your dividend income is below high threshold. On the other-hand, HMRC insists that all directors must file a self assessment even if the income is zero.

If you search google, you will find a lot of accountants on accountancy related forums saying something similar to this :

"A director per se does not need to notify chargeability (register for SA), but like any other taxpayer, he must notify HMRC if he has a higher rate tax liability. If you doubt this, read s.7 TMA 1970.
As HMRC has no legal powers to force a director, without any balance of tax payable, to register, there is absolutely no risk if such a director does not register for SA."

As you already have a valid visa till 2018, JR is probably your best choice as HO may refuse you again for the same reason. Another reason why you should go for JR is because if you apply for JR now, you can still work during your JR as you still have valid leave to remain. If HO keeps your file for a longtime and refuse you later after your current leave to remain has expired/is about to expire, you will probably have to stop working because your leave 3c wont cover you for your JR.

[danmay]

We met with couple of lawyers and they are quoting fees around 10k for JR (including pre action, submission of case and oral fees plus vat). two things
1) If you can share some good lawyers phone numbers
2) My husband is British citizen, so to save the cost I was thinking go dependant on him. What do you recon?

Many thanks

[noajthan]

We met with couple of lawyers and they are quoting fees around 10k for JR (including pre action, submission of case and oral fees plus vat). two things
1) If you can share some good lawyers phone numbers
2) My husband is British citizen, so to save the cost I was thinking go dependant on him. What do you recon?

Many thanks

1) No digits here.

Contact Law Society.

[danmay]

Hi all,

My ILR and AR was refused under para 245CD of the immigration rules with reference to 322(5) of appendix A.
I have tier 1 visa valid till Feb 2018 and going for JR. My solicitor is preparing pre action protocol. Currently I am on maternity leave and planning to join back in March 2017.

I have 2 questions :-
1) Can I travel abroad? Will I be stopped at airport while coming back?
2) Can I still work legally till Feb 2018?

Many thanks

[vinny]

M.

[monty87]

Hi all,

My ILR and AR was refused under para 245CD of the immigration rules with reference to 322(5) of appendix A.
I have tier 1 visa valid till Feb 2018 and going for JR. My solicitor is preparing pre action protocol. Currently I am on maternity leave and planning to join back in March 2017.

I have 2 questions :-
1) Can I travel abroad? Will I be stopped at airport while coming back?

I would suggest to send separate PAP to Home Office to update their records before making travel arrangements, they should not have told you that you are liable for enforced removal in Admin Refusal Letter unless your leave until Feb 2018 had been curtailed by HO which does not seem to be after reading your posts. They possibly followed their standard protocol to send people to their home countries following Admin review refusals.

2) Can I still work legally till Feb 2018?
You're legally allowed to work if you have valid Tier 1 until Feb 2018 unless Home Office has curtailed your leave. You can check your status on https://www.gov.uk/employee-immigration ... ent-status and also send PAP if it is showing as negative.

[trunks2k8]

my sa302s were submitted late before my peo and I did not do SA due to the same reasons you have given above. I took additional documents including a letter from ca explaining he was the one who decided no to submit SA as it was not required. A web extract from HMRC website saying sa was not required also an extract from ACCA website stating the HMRC rule for SA not required. This is just unfair and a mistake on the HO but you should have taken these additional documents with u to make them understand in my case they did understand it.

Hi maverick any update regarding ur case? I'm in a similar situation. please advise.

[ukishometoo]

Hi All,

My ILR was refused and my appeal was also refused as they cited reason under section 322. We have all HMRC docs and Home office earnings tie to HMRC, but HO say they original case worker fairly assessed and we should have provided enough supporting.

we gave then SA302 earnings in appeal too to show there is some confusion and hmrc letter clearly shows earnings claimed. but they are ignoring it,

I feel helpless. During first refusal they said i can live till my valid tier 1 till 2018.

Now they are saying on appeal letter u must leave UK immediately, which seems a mistake in the letter, but am confused.

Now I have 2 options either to go on spouse visa (my spouse is British Citizen) or go for judiciary review which is our preference as we know home office is confused and not looking at right information.

I cant go to India and have Judicial review as I am a new mom and I need to be with my daugher who dont have UK passport or oci card, though she is a citizen. Also can I not live in uk till 2018 tier 1 visa expiry and apply for JR.

I have 5 months old baby and I am really panicked and feel disappointed of case workers wrong evaluation. I am a Chartered Accountant working for a big corporate. Just lucky i am on maternity or this decision is a disaster. Also the earnings requirement was only 20k and not high, I had much over it which we showed.

Please advice, can I stay in country based on my tier 1 valid till 2018. Home office has confused me as they say I have to leave now or face consequences etc, which I think is a cut copy paste of their standard wordings and they are ignoring my tier 1 till 2018. Please help as I feel helpless due to case workers fault.

I called HO, one caseworker said u can definetely live as u have tier 1 and that attached para on leaving UK was a standard reply on refused appeals., the other one seemed confused and said follow the letter and leave.

Pls advise and thanks for reading long email

Hi danmay,

Did your JR permission granted? Thanks.