2nd extension refused, help/advice needed plesae

[dream2z]

Firstly, thank you so much for taking your precious time to read through my case below, any valuable advice from you will be extremely helpful for me!

Timeline:
Initial Tie1 Entrepreneur visa granted: 2011 – 2014

1st extension granted: 2014 – 2016

2nd extension application: applied in May 2016, refused in May 2017

Why refused:
0 points awarded for the creation of jobs in the UK. The only reason of refusal stated as:
“
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.

Paragraph 46-SD(h)(i) of Appendix A of the immigration rules states as
follows…(ellipsis)

As evidence of this, you have supplied: Full Payment Submissions; P46;
P45; P11; copies of wage slips for employee A,B,C and D; copies of Identity
documents for employee A,B,C and D.

The evidence you have provided is not sufficient because there is no start
dates on any of the documents provided for employee A and B, as specified
above at paragraph 46-SD(h)(i) of the immigration Rules.

Therefore we can only account for employee C and D ‘s hours, which total to
582 hours, as you supplied in the p11 forms states their start dates.
Therefore we have been unable to award points for Attributes. “

What I sent:

- Evidence of the 2 full-time positions created in the initial period of leave (1st extension application) was maintained for at least 12 months:

Employee A:
worked from 01/04/2013 – 30/03/2016
2nd extension application claimed period from 01/05/2014 – 30/03/2016 (23months)

Employee B:
worked from 01/02/2014 – 30/03/2016
2nd extension application claimed period from 01/05/2014 – 30/09/2015

- Evidence of the jobs from the initial leave still exist:

Employee C:
replaced employee A, working from 01/04/2016 till present
2nd extension application claimed period from 01/04/2016 – 30/04/2016

Employee D:
replaced employee B, working from 01/01/2016 till present
2nd extension application claimed period from 01/01/2016 – 30/04/2016

What I thought:
According to the Tie1 policy guidance:
“
Further leave
177. If your most recent period of leave was as a Tier 1 (Entrepreneur) migrant and you are applying for further leave under this route (for instance, if you are applying for a second extension or a 5 year settlement application):
You do not need to demonstrate that you have created 2 more full-time paid jobs in addition to the 2 jobs you created during the initial period of leave (which you evidenced for your extension application), if the 2 full-time positions created in the initial period of leave were maintained for at least 12 months during your extension period of leave;
 However, if the jobs from the initial leave no longer exist, you must
show you have created 2 new jobs which have existed for at least 12
months during your extension period of leave. “

The Home Office will assess the employment activity from the extension period of leave, what I need to show them is evidence of the 2 jobs created in the 1st extension were maintained for at least 12 months, i do not need to demonstrate any job creation, and employee A and B both awarded points for job creation in the 1st extension application, during my extension period of leave, the job positions have remained the same, both employee A and B worked more than 12months, and the positions are still exist.

Question 1:
I think I am claiming points on the basis that I Maintained the 2 jobs created in my initial leave for a further 12 months, not claiming points on the basis that i 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 the case worker stated. Am I correct? If yes, is 46-SD(h)(i) still applied to my case?

Question 2:
I can’t find any details of supporting requirement for the 2 jobs maintenance, is the start date of the 2 created jobs a must document for the second extension?

What I can do:
- Option 1: make a fresh extension application

Question 3: do I have 28days to do so? How about those on hold original documents? Healthcare surcharge pay again? What are the choices if it's refuse again?

- Option 2: apply for AR (have at least 38days to prepare fresh application and re-apply during admin review)

Question 4: should my all 3dependents apply for AR, or only me?

- Option 3: AR refused then fresh extension application within 28days, after 2yrs extension granted then apply for settlement (can apply for 5years settlement in July 2017 when a simple caution spent after 24mths)

Option 4: AR refused then apply for ILR straightaway if outcome is after 1st July

Question 5: can I apply for ILR if AR refused? Will be overstayed?

What else:
Dependent child (not born in the UK, staying here for 6years)

Question 6: if visa refuse at the end, child return here as a student, can he apply for settlement base on 10yrs long residence? Must return within 28days?

Question 7: if you were me, which safest option would you choose?

[KNY]

Why didn't you apply for ILR instead of a second extension? You are qualified to make 1 after spending 5 years on this type of visa. Your next application will have to be made within 14 days (It is no longer 28 days. The deficiency in the application is unfortunately a technical requirement and there is a slim chance that AR will have the outcome overturned.

If i were you, i will put in another application by correcting the obvious mistakes, Zimba and co should be able to guide on what software can assist you in doing so. Your application will most likely be pending until July 1...

[zimba]

Question 1:
I think I am claiming points on the basis that I Maintained the 2 jobs created in my initial leave for a further 12 months, not claiming points on the basis that i 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 the case worker stated. Am I correct? If yes, is 46-SD(h)(i) still applied to my case?

Yes but the start date of each employee starting MUST be given, in an FPS report.

Question 2:
I can’t find any details of supporting requirement for the 2 jobs maintenance, is the start date of the 2 created jobs a must document for the second extension?

This is not the start date of the job being created, but the date each employee joining. They must see the starting date each employee JOINED

What I can do:
- Option 1: make a fresh extension application
Question 3: do I have 28days to do so? How about those on hold original documents? Healthcare surcharge pay again? What are the choices if it's refuse again?

You have 14 days to apply for AR or a new application. You do not get any other chance !

- Option 2: apply for AR (have at least 38days to prepare fresh application and re-apply during admin review)
Question 4: should my all 3dependents apply for AR, or only me?

AR is for the main application, all of your will be covered by section 3C

- Option 3: AR refused then fresh extension application within 28days, after 2yrs extension granted then apply for settlement (can apply for 5years settlement in July 2017 when a simple caution spent after 24mths)

14 days !

Option 4: AR refused then apply for ILR straightaway if outcome is after 1st July

AR will take around a month only

Question 5: can I apply for ILR if AR refused? Will be overstayed?

You can as long as you are eligible and do not have unspent convictions

What else:
Dependent child (not born in the UK, staying here for 6years)
Question 6: if visa refuse at the end, child return here as a student, can he apply for settlement base on 10yrs long residence? Must return within 28days?

If you apply for student visa within 14 days of becoming an overstayer

Question 7: if you were me, which safest option would you choose?

Apply for extension and vary to ILR in july

[dream2z]

thank you for you reply zimba88 and KNY

if fresh application, do i need to send all the supporting documents again accept the originial passports?

[dream2z]

i just found out that i did provide the P46 form which signed by the employee A and B, and it's listed in the refusal letter as well, the second page of the form indicated the date employment started.

Could please anyone to confirm if it can be the evidence of starting date when employee JOINED ?

Many thanks

[sm12]

Yes, for a fresh application, all documents will have to be sent again except for your passport, which is already with them.

As for P46, I think the HO now expects to see your FPS with start and end dates.

Why didn't you go for ILR?

[CR001]

Why didn't you go for ILR?

The OP already stated why in the opening post.

- Option 3: AR refused then fresh extension application within 28days, after 2yrs extension granted then apply for settlement (can apply for 5years settlement in July 2017 when a simple caution spent after 24mths)

[dream2z]

Yes, for a fresh application, all documents will have to be sent again except for your passport, which is already with them.

As for P46, I think the HO now expects to see your FPS with start and end dates.

Why didn't you go for ILR?

thank you for your reply sm12
but paragraph 46-SD (h)(i) states :

" evidence to show the applicant is reporting Pay As You Earn (PAYE ) income tax appropriately to HM Revenue & Customs (HMRC), such as printouts of Employee Payment Records, Real Time-Full Payment Submissions (either a series of individual monthly submissions including the first submission or summaries), or original HM Revenue & Customs P45 or P46, which either together or individually show the total payments made to the settled workers, as well as the tax deducted and date which they started work with the applicant’s business"

can the P46 be the individual evidence to show the start dates? please kindly advice.

[zimba]

i just found out that i did provide the P46 form which signed by the employee A and B, and it's listed in the refusal letter as well, the second page of the form indicated the date employment started.

Could please anyone to confirm if it can be the evidence of starting date when employee JOINED ?

Many thanks

No, P46 is useless for people hired after October 2013, this is clear in the guide and the rules. Where are you looking at the rules ???

[dream2z]

i just found out that i did provide the P46 form which signed by the employee A and B, and it's listed in the refusal letter as well, the second page of the form indicated the date employment started.

Could please anyone to confirm if it can be the evidence of starting date when employee JOINED ?

Many thanks

No, P46 is useless for people hired after October 2013, this is clear in the guide and the rules. Where are you looking at the rules ???

Thank you zimba88!

my case is:

employee A started full-time employment with me from 01/04/2013 which stated in the original P46, and i claimed period from 01/05/2014 – 30/03/2016 (23months) more than 2900hours

employee B started from 01/02/2014, so it's not counted.

But can i combine employee C and D's awarded 582 hours as stated in the refusal letter (i am under transitional agreement) ?

Would you please kindly give me the link to the guide and the rules about the P46 is useless for people hired after October 2013 ?

Thanks a lot!

[zimba]

See: Guidance on application for UK visa as Tier 1 (Entrepreneur)

The immigration rules under Appendix A, paragraph 46-SD (h)(i) says:

(1) for reporting up to and including 5 October 2013 either:
(a) printouts of Employee Payment Records and, unless the start date of the employment is shown in the Employee Payment Record, an original HMRC form P45 or form P46 (also called a Full Payment Submission) for the settled worker showing the starting date of the employment, or
(b) printouts of Real Time-Full Payment Submissions which confirm the report of PAYE income tax to HMRC (if he began reporting via Real Time before 6 October 2013);

(2) for reporting from 6 October 2013 onwards, printouts of Real Time-Full Payment Submissions which confirm the report of PAYE income tax to HMRC.

[dream2z]

See: Guidance on application for UK visa as Tier 1 (Entrepreneur)

The immigration rules under Appendix A, paragraph 46-SD (h)(i) says:

(1) for reporting up to and including 5 October 2013 either:
(a) printouts of Employee Payment Records and, unless the start date of the employment is shown in the Employee Payment Record, an original HMRC form P45 or form P46 (also called a Full Payment Submission) for the settled worker showing the starting date of the employment, or
(b) printouts of Real Time-Full Payment Submissions which confirm the report of PAYE income tax to HMRC (if he began reporting via Real Time before 6 October 2013);

(2) for reporting from 6 October 2013 onwards, printouts of Real Time-Full Payment Submissions which confirm the report of PAYE income tax to HMRC.

sorry, it's a bit confused, just confirmed that my employee A started work on 1 Sep 2012 (before 5 Octber 2013), but we began reporting via Real Time from April 2013, in this case, does it mean i should provide both Employee Payment Record and P46 form for reporting up to and including 5 October 2013 ?

[zimba]

It is very very simple. P46 for the start date and FPS from the date you started reporting via RTI.

[dream2z]

It is very very simple. P46 for the start date and FPS from the date you started reporting via RTI.

zimba88 thank you so much for your return and clearly explanation! the information is much more helpful than i got from lawyers.

I'm thinking to apply for AR to argue that the provided P46 shows employee A 's start date as he's hired before October 2013, so he's hours should be claimed.
(Employee A: worked from 01/04/2013 – 30/03/2016
2nd extension application claimed period from 01/05/2014 – 30/03/2016 (23months- more than 2900hours)

then my 2 jobs creation from 3 full time settled workers:
employee A: 2900hours + employee C and employee D awarded: 582hours = 3482 hours

please kindly give advice.

[zimba]

I'm thinking to apply for AR to argue that the provided P46 shows employee A 's start date as he's hired before October 2013, so he's hours should be claimed.
(Employee A: worked from 01/04/2013 – 30/03/2016
2nd extension application claimed period from 01/05/2014 – 30/03/2016 (23months- more than 2900hours)

If you submitted P46 and FPS since April 2013 for that employee, they MUST have given you the points for this employee. So go for it.
However others who started after October 2013 must have their start date appear in FPS as advised.

[dream2z]

I'm thinking to apply for AR to argue that the provided P46 shows employee A 's start date as he's hired before October 2013, so he's hours should be claimed.
(Employee A: worked from 01/04/2013 – 30/03/2016
2nd extension application claimed period from 01/05/2014 – 30/03/2016 (23months- more than 2900hours)

If you submitted P46 and FPS since April 2013 for that employee, they MUST have given you the points for this employee. So go for it.
However others who started after October 2013 must have their start date appear in FPS as advised.

For that employee i only submitted p46 and FPS from 01/05/2014 – 30/03/2016

it's my second extension, the Home Office assess the employment activity from the first extension period of leave, I provided evidence of the 2 jobs created in the 1st extension(granted from May 2014 - May 2016) were maintained for at least 12 months, therefore, i submitted FPS reports are from May 2014 to April 2016, do i still need to provide the FPS of that employee from April 2013 to 2016?

[zimba]

No, only FPS reports for the period you are claiming points for

[marcnath]

The guidance says "Printouts of Employee Payment Records and, unless the ......".

It is nor clear if you submitted the EPRs, which seems to be the primary requirement. With the P46 only being an additional evidence if the EPR does not have the starting date.

Unfortunately, though the guidance talks about the fact that existing jobs can be continued, they do not ask for evidence that the jobs you are now claiming for is a continuing position.

The evidence requirement (EPR, FPS, Payslips, starting date, etc.) is the same whether it is a new job or an continuing job.

This seems to be one of the cases where the rejection is on the basis a technicality - the one thing I provided as a feedback to the survey upon my decision.

If you did not submit an EPR, it is a silly rejection but something they can possibly argue.

[dream2z]

The guidance says "Printouts of Employee Payment Records and, unless the ......".

It is nor clear if you submitted the EPRs, which seems to be the primary requirement. With the P46 only being an additional evidence if the EPR does not have the starting date.

Unfortunately, though the guidance talks about the fact that existing jobs can be continued, they do not ask for evidence that the jobs you are now claiming for is a continuing position.

The evidence requirement (EPR, FPS, Payslips, starting date, etc.) is the same whether it is a new job or an continuing job.

This seems to be one of the cases where the rejection is on the basis a technicality - the one thing I provided as a feedback to the survey upon my decision.

If you did not submit an EPR, it is a silly rejection but something they can possibly argue.

marcnath, really appreciate your reply, actually my understanding is the same as you about the EPRs should be the main and compulsory document, but i asked a lawyer today, he said it means either EPRs or P45 or P46 is ok, but i still doubt about it, he said i got good chance to overturn, but the more i search the less confidence i have, i have no enough time to prepare fresh application, i'll apply for AR first.

Do you know why HO asks for the start date? my business is new, all the positions are created after business set up...

can you think about any good points of my argument?

[marcnath]

I have no idea why they ask starting dates for continuing employment. I suspect it is just something the person(s) who drew up the guidance missed it.

Some of the other points, such as investment or language requirements have clauses saying that evidence does not need to be submitted if it was part of the initial extension. This should be a similar case and that evidence should not be needed.

If I was in your position, I would now argue the "or" argument - that is P46 should be treated as an alternative for pre Oct 13 employees.
But I would also add the argument that the starting date was known, assessed and accepted by the HO for your initial extension.

[dream2z]

I have no idea why they ask starting dates for continuing employment. I suspect it is just something the person(s) who drew up the guidance missed it.

Some of the other points, such as investment or language requirements have clauses saying that evidence does not need to be submitted if it was part of the initial extension. This should be a similar case and that evidence should not be needed.

If I was in your position, I would now argue the "or" argument - that is P46 should be treated as an alternative for pre Oct 13 employees.
But I would also add the argument that the starting date was known, assessed and accepted by the HO for your initial extension.

Thank you very much marcnath for the pionts.

[dream2z]

Please anyone got ideas about the reason for starting date requirement

any more good points for my AR argument?
(sorry for the demand, after having some lawyers "advices", i'm gonna to apply for AR by myself, and now trying to think about any possible points apart from the submitted P46 and 12months maintained jobs from the previous extension)

[dream2z]

Hi zimba88 and senior members,

I just found out that i messed up with the immigration rules (the current one vs before Nov 2016), as my application took almost a year.

Paragraph 46-SD(h)(i) of Appendix A of the immigration rules before November 2016 states:
(i) evidence to show the applicant is reporting PAYE income tax appropriately to HMRC, such as printouts of Employee Payment Records, Real Time-Full Payment Submissions (either a series of individual monthly submissions including first submission or summaries), or original HMRC P45 or P46, which either together or individually show the total payments made to the settled workers, as well as the tax deducted and date which they started work with the applicant's business.

this rule changed from November 2016 to:
(1) for reporting up to and including 5 October 2013 either:
(a) printouts of Employee Payment Records and, unless the start
date of the employment is shown in the Employee Payment
Record, an original HMRC form P45 or form P46 (also called a
Full Payment Submission) for the settled worker showing the
starting date of the employment, or

My application was made in May 2016, there're two silly but important questions:

1. Which rules apply to my application? if it's the one before 2016, do i need to mention it in the AR application?

2. When arguing the supporting points of my AR, should i quote the immigration rules or the Policy Guidance?

Many thanks

[zimba]

1. Which rules apply to my application? if it's the one before 2016, do i need to mention it in the AR application?

The rule changes merely clarified that point. ALL employer had to switch to report via RTI since October 2013 based on the LAW.
P46 is NOT used/accepted since 2013.

2. When arguing the supporting points of my AR, should i quote the immigration rules or the Policy Guidance?

You must show you were reporting via RTI. P46 or anything else is not accepted unless before 2013

[dream2z]

1. Which rules apply to my application? if it's the one before 2016, do i need to mention it in the AR application?

The rule changes merely clarified that point. ALL employer had to switch to report via RTI since October 2013 based on the LAW.
P46 is NOT used/accepted since 2013.

2. When arguing the supporting points of my AR, should i quote the immigration rules or the Policy Guidance?

You must show you were reporting via RTI. P46 or anything else is not accepted unless before 2013

Thank you zimba88

Yes, i know P46 is not useless before Oct 2013, because my employee is employed before 2013, and in the new rules after Nov 2016, it says the a) printouts of Employee Payment Records and, ....or form P46..., but in the old rules, it says (i) evidence to show the applicant is reporting PAYE income tax appropriately to HMRC, such as,....or P46..., so my concern is if the old rules apply to my application, then the P46 should be the acceptable evidence for starting date. of course, after Oct 2013, the employee enrolled to RIT, got all reports, but my accourtant changed software after this emplyee quit, that's why his starting date is only available shown in the P46 and employment payment records(which i did not submit) not the old format of P11.
my questions are still the same as listed:

1. Which rules apply to my application? if it's the one before 2016, do i need to mention it in the AR application?

2. When arguing the supporting points of my AR, should i quote the immigration rules or the Policy Guidance?becasue i can't find the immigration rules Appendix A before Nov 2016, anyone got the link please?