Tier 1(Entrepreneur) Visa refused URGENT HELP NEEDED

[Vechnii]

My point on admin review is that 45 (c)(i) should not been used instead of 45 (e)

I tried to explain this earlier.

Why do you think you should be exempt from 45 (c)(i) when it is required for every other applicant.

Anyway 45 (e) says:

the accounts must show the shareholders, the amount and value of the shares (on the date of purchase) in the applicant’s name

Have you met that requirement ?

That my concern
i can prove that ive got shares (several documents shows that I'm a shareholder)and ive paid for it but i can only say that shares that were allotted at XXX premium were mine because there was no my name on that line.
However here is the question if it can be used evidential flexibility

[Vechnii]

My point on admin review is that 45 (c)(i) should not been used instead of 45 (e)

I tried to explain this earlier.

Why do you think you should be exempt from 45 (c)(i) when it is required for every other applicant.

Anyway 45 (e) says:

the accounts must show the shareholders, the amount and value of the shares (on the date of purchase) in the applicant’s name

Have you met that requirement ?

That my concern
i can prove that ive got shares (several documents shows that I'm a shareholder)and ive paid for it but i can only say that shares that were allotted at XXX premium were mine because there was no my name on that line.
However here is the question if it can be used evidential flexibility to that issue or not because several documents are verifying my point.
Sorry im just trying to find any way to prove my point and trying to understand either it was mistake of my solicitors who was preparing documents and there's no way to prove to HO that im genuine businessmen or it was caseworkers mistake. Ive read many topics on this forum and i believe in justice.
Im in huge stress and pressure as you can understand and if im leaving country trying to apply again for visa from my homecountry it would be huge impact on my business.
Another question is that if solicitors made a mistake then i can do nothing apart going to JR and trying to explain my point.

[marcnath]

My point on admin review is that 45 (c)(i) should not been used instead of 45 (e)

I tried to explain this earlier.

Why do you think you should be exempt from 45 (c)(i) when it is required for every other applicant.

Anyway 45 (e) says:

the accounts must show the shareholders, the amount and value of the shares (on the date of purchase) in the applicant’s name

Have you met that requirement ?

That my concern
i can prove that ive got shares (several documents shows that I'm a shareholder)and ive paid for it but i can only say that shares that were allotted at XXX premium were mine because there was no my name on that line.
However here is the question if it can be used evidential flexibility to that issue or not because several documents are verifying my point.

If that information is there in any of the documents you have submitted with your application, then you can request evidential flexibility as I mentioned before. Evidential flexibility is not a right, so it is still up to HO.

Sorry im just trying to find any way to prove my point and trying to understand either it was mistake of my solicitors who was preparing documents and there's no way to prove to HO that im genuine businessmen or it was caseworkers mistake. Ive read many topics on this forum and i believe in justice.

If your name was not in the Accounts against the shareholding, it was not CW error. Yes, you seem to have a terrible solicitor though.

Im in huge stress and pressure as you can understand and if im leaving country trying to apply again for visa from my homecountry it would be huge impact on my business.
Another question is that if solicitors made a mistake then i can do nothing apart going to JR and trying to explain my point.

You can go to JR, but the application is yours and a solicitor mistake is not a legal argument. So, you can waste a lot of money but it is unlikely JR will be successful.

You can of course find another solicitor and sue this one for damages. I have no idea how successful it will be. I am sure the solicitor has covered themselves by asking you for final approval of the documents to be submitted.

[Vechnii]

If that information is there in any of the documents you have submitted with your application, then you can request evidential flexibility as I mentioned before. Evidential flexibility is not a right, so it is still up to HO.

To make it clear:
Ive got:
1.unaudited accounts which shows my shareholding clearly
2.CS 01 which shows sheaholding as well
3.accountant letter where it said I invested 200k in share capital
4. 2 bank statement company and personal proving my investments
All of that documents are proving my investments
Unaudited accounts show that I became a shareholder

[marcnath]

Unfortunately, you have a number of contradictions. If what you say in this latest post is correct, the CW has made a wrong decision.

But you did not say the same thing before, so please clarify.

1.unaudited accounts which shows my shareholding clearly

What is the exact wording in accounts that show the shareholding ?
This is the most critical one.

2.CS 01 which shows shareholding as well

This is not a specified document so irrelevant for the main consideration.
Again, what exactly is there. CS01 does not always have shareholding, so it depends on what was actually filed in the CS01 that your submitted.
If the required information is there - all shareholders, value of shares invested - then you can use it as an argument for evidential flexibility.

3.accountant letter where it said I invested 200k in share capital

This is not a specified document so irrelevant for the main consideration.
If the required information is there - all shareholders, value of shares invested - then you can use it as an argument for evidential flexibility.

4. 2 bank statement company and personal proving my investments

This has no relevance for investment by shares

[Vechnii]

Exact wording
1 page:
DIRECTORS
The directors during the period under review were:
Mr Vechnii appointed xx.xx.2014
The beneficial interests of the directors holding office on 31 December 2014 in the issued share capital of the company were as follows:
Ordinary shares 0.01 gbp 31.12.14 31.08.13(or at the date of appointment if later)
Mr Vechnii xxxx xxxx

Page 11
XXXX Ordinary shares of f0.01 each were allotted as fully paid at premium of XXX.xXX per share during the period.

number of shares on page 2 equal to number of shares alloted

[Vechnii]

in addition to my previous post i should mention in unaudited accounts it mentioned increase in shares equal to the amount that was allotted during the period 13-14 and the only shareholder who came on board was myself

[marcnath]

Exact wording
1 page:
DIRECTORS
The directors during the period under review were:
Mr Vechnii appointed xx.xx.2014
The beneficial interests of the directors holding office on 31 December 2014 in the issued share capital of the company were as follows:
Ordinary shares 0.01 gbp 31.12.14 31.08.13(or at the date of appointment if later)
Mr Vechnii xxxx xxxx

Page 11
XXXX Ordinary shares of f0.01 each were allotted as fully paid at premium of XXX.xXX per share during the period.

number of shares on page 2 equal to number of shares alloted

Ok. That seems quite straightforward and you can argue caseworker error then without any reference to evidential flexibility.

If in Pg 11, the number of ordinary shares multiplied by the premium lands up to 200K then, you are ok.

Yes, the information is on two different pages so it is easy to see why the CW came to the conclusion that they did. You should have pointed that out in your cover letter. But given that the number of shares in Pg 1 and Pg 11 are the same, you should be able to get that corrected in AR.

Good luck with your AR - I am quite confident you will succeed.

[Vechnii]

Finally AR sent on the last day of 14 days that were given.
Barrister prepared grounds on 12 pages and I’ve sent it as a separate letter as whole text couldn’t fit into web form on AR team email which was given with AR application confirmation email.
The question is was it right to send grounds via email?

[marcnath]

The question is was it right to send grounds via email?

To be honest, wrong question. There is not much you can do now, anyway.

Just relax, and wait for the result.

[Vechnii]

My story is not finished yet so I want to share a bit information.
On 10.07.18 I’ve applied for administrative review and got answer today dated 06.08.18
HO maintained their decision on both points as investments and job creation, but they corrected the rules:
For investments to 45(e) instead of 45(c)(i)
For job creation they’ve withdrawn 130 hours per month and left 30 h per month
However HO did not put on case unaudited accounts explanations from my side saying it was unclear as well as late salary payments were not putted on case as it was unclear for them.
Also 2 payslips that were omitted previously for 2 months they could not find them even seeing that documents are missing from consequence as they’ve got February than May.
Nevertheless In the pack of documents was index stating which documents were sent and apart from payslips rti and FPS with full monthes were sent where it can be clearly seen that those 2 monthes are presented.

[marcnath]

My story is not finished yet so I want to share a bit information.
On 10.07.18 I’ve applied for administrative review and got answer today dated 06.08.18
HO maintained their decision on both points as investments and job creation, but they corrected the rules:
For investments to 45(e) instead of 45(c)(i)
For job creation they’ve withdrawn 130 hours per month and left 30 h per month
However HO did not put on case unaudited accounts explanations from my side saying it was unclear as well as late salary payments were not putted on case as it was unclear for them.
Also 2 payslips that were omitted previously for 2 months they could not find them even seeing that documents are missing from consequence as they’ve got February than May.
Nevertheless In the pack of documents was index stating which documents were sent and apart from payslips rti and FPS with full monthes were sent where it can be clearly seen that those 2 monthes are presented.

Sorry to hear and I am surprised.

Of course, it depends on what exactly your arguments were which I have no visibility to.

[Vechnii]

Well the main question is what to do now
obviously, I would apply for AR again
However i expect to get refuse again as HO seems to maintain their decision even if its unlawful.So probably i need to prepare PAP and go for JR .As far as i understand i cant do it while ive got right for AR.
Ive done a mistake in the previous post regarding job creation as they didi not correct 130h per calendar month saying that calculation was correct.
Anyway here is some questions:
I've read the refusal document carefully and want to raise few points:
1.Investment matter
Caseworker agreed that there was an error in the previous decision and changed paragraph 45(c)(i) to 45(e) which was correct.
However, he maintained the original decision as investment was not clear for him.
Caseworker agreed that XXXX shares at nominal value were allotted on my name (p2 on accounts).
Why he is not using page 10 where it said XXXX were allotted as XXXX.X per share during the period. Where all the shares were allotted on the specific date which is mentioned on p2 as the date of becoming a director.
So from my point of view caseworker did not use some evidence which was provided as:
a) unaudited accounts 2014 (specifically page 10)
b) Accountant letter
c) Company Bank Statement
d) Personal Bank Statement (Which he did not even mention in his reply)

2.Job creation matter.
That part of refusal even more complicated
a) caseworker maintained usage of 130 hours
b) caseworker omitted March and Aprile which were definitely sent (even though RTI and FPS were provided with missing months so its clear that those 2 months do exist)
c) caseworker states it is not clear from the original documents that 2 periods were paid later. However, its clearly states late salary payment and the caseworker cannot dismiss it as unclear
Finally, caseworker explained that caselaw Alvi vs SSHD could not been used as it was tier 2 case which is totally incorrect as caselaw states that HO cannot use any other methods for their own calculations apart methods which are stated in the Rules or official guidance
My barrister mentioned caselaw Alvi vs SSHD as it was used the incorrect method of calculations of hours

Any advice is welcome

[marcnath]

Well the main question is what to do now
obviously, I would apply for AR again
However i expect to get refuse again as HO seems to maintain their decision even if its unlawful.So probably i need to prepare PAP and go for JR .As far as i understand i cant do it while ive got right for AR.
Ive done a mistake in the previous post regarding job creation as they didi not correct 130h per calendar month saying that calculation was correct.
Anyway here is some questions:
I've read the refusal document carefully and want to raise few points:
1.Investment matter
Caseworker agreed that there was an error in the previous decision and changed paragraph 45(c)(i) to 45(e) which was correct.
However, he maintained the original decision as investment was not clear for him.
Caseworker agreed that XXXX shares at nominal value were allotted on my name (p2 on accounts).
Why he is not using page 10 where it said XXXX were allotted as XXXX.X per share during the period. Where all the shares were allotted on the specific date which is mentioned on p2 as the date of becoming a director.
So from my point of view caseworker did not use some evidence which was provided as:
a) unaudited accounts 2014 (specifically page 10)
b) Accountant letter
c) Company Bank Statement
d) Personal Bank Statement (Which he did not even mention in his reply)

2.Job creation matter.
That part of refusal even more complicated
a) caseworker maintained usage of 130 hours
b) caseworker omitted March and Aprile which were definitely sent (even though RTI and FPS were provided with missing months so its clear that those 2 months do exist)
c) caseworker states it is not clear from the original documents that 2 periods were paid later. However, its clearly states late salary payment and the caseworker cannot dismiss it as unclear
Finally, caseworker explained that caselaw Alvi vs SSHD could not been used as it was tier 2 case which is totally incorrect as caselaw states that HO cannot use any other methods for their own calculations apart methods which are stated in the Rules or official guidance
My barrister mentioned caselaw Alvi vs SSHD as it was used the incorrect method of calculations of hours

Any advice is welcome

Have you been the right for another AR ?

If so, then yes you should file another AR.

There is nothing that prevents you from pursuing JR and AR together but it normally does not make sense to spend the money on JR when you have an AR opportunity.

The investment point is clearly ridiculous if it was the only shares issued - the activity in pg 10 cannot refer to anything else

[Vechnii]

Yes I was given second AR

[heyaheya]

Yes I was given second AR

REALLY i have never heard someone getting chance of 2nd AR until today. what does AR refusal exactly say ,... does it say u can apply for another AR.

[marcnath]

Yes I was given second AR

REALLY i have never heard someone getting chance of 2nd AR until today. what does AR refusal exactly say ,... does it say u can apply for another AR.

Second AR may be given when the reason for refusals have changed - it would be unfair for the applicant if they are not allowed to appeal against any new reasons.

In this case, since HO changed the rationales from 45 (c)(i) to 45 (e), the applicant needs an opportunity to argue why 45 (e) is not applicable.

[Vechnii]

Dear Marcnath
I did not put into my previous AR letter point regarding job creation 245aa as was sure that my explanation of late salary payments is clear and 2 missing months are not mandatory to use.however I’ve got index of docs that I sent and it can be seen that all documents were in one pack so should I right about it in new AR application as well as RTI and FPS have those months and those 2 papers were definitely lost somewhere in HO.
Do letters with my explanations that were sent in first AR application need to be sent again or they would be in case anyway?

[marcnath]

Dear Marcnath
I did not put into my previous AR letter point regarding job creation 245aa as was sure that my explanation of late salary payments is clear and 2 missing months are not mandatory to use.however I’ve got index of docs that I sent and it can be seen that all documents were in one pack so should I right about it in new AR application as well as RTI and FPS have those months and those 2 papers were definitely lost somewhere in HO.
Do letters with my explanations that were sent in first AR application need to be sent again or they would be in case anyway?

Don't depend on documents/explanations from the previous AR. You should treat this as a standalone application.

The basic principle is to have as many arguments as you can in an AR, so that if one is not successful, there are others to fall back on. So I am surprised you were so overconfident as to leave out arguments

You have been very fortunate to get a second AR chance.

[heyaheya]

Yes I was given second AR

REALLY i have never heard someone getting chance of 2nd AR until today. what does AR refusal exactly say ,... does it say u can apply for another AR.

Second AR may be given when the reason for refusals have changed - it would be unfair for the applicant if they are not allowed to appeal against any new reasons.

In this case, since HO changed the rationales from 45 (c)(i) to 45 (e), the applicant needs an opportunity to argue why 45 (e) is not applicable.

ohh got it now .. thanks alot marchnath .. jus after i posted this today....one of my friend she got AR refusal and she has also given a chance of 2nd AR as well. ... thanks alot marchnath .....

[Vechnii]

I need your help guys
Question 1:
Should i right the points which are covered incorrectly and are not covered at All in 1 AR?
Investment matter:
Caseworker has seen my shares on p2 in accounts but have not seen share premium on p11 ,He also missed that the date of purchase and the date of production of shares is the same as the date of appointment .
Also i should mention that information in accounts regarding investment is taken from the bank statement of the company which was provided (even if it was not necessary to provide it) so for unaudited accounts bank statement is very important document.
As I mentioned before extra supportive documents were provided but were not mentioned in refusal letter and in 1 AR refusal it was not covered as well , however it was mentioned by barrister in grounds letter.
Job creation matter:
That part of the refusal even more ridicules.Caseworker states that paragraph 49(a) says 30 hours per week
which is equal to 130 hours per month that is is completely incorrect.Even though in my grounds ive covered the point of 130 hours showing the table of hours and showing that 14 months are covered .Also i explained to caseworker that 130 is average which you can get only by 1560/12 .However its not correct figure and caseworker cannot use it as it was not in the rules or guidance as it was stated in caselaw Alvi vs SSHD.
Where caseworker says that caselaw is not applicable here as it was used for Tier 2 and ive got tier 1 application.Which is not correct from my point of view as in case law it states that caseworker cannot use any methods which are not discribed in the rules and guidance.
Second thing that was mentioned in the grounds is Late salary payment (i would say the main part of refusal on job creation) ive got 4 months of underpayment which are covered in payslip in Jan and its clearly says Late Salary payment in payslip .However caseworker saying that this fact is not clearly recorded within the supportive evidence of the original application.So How clear it should be in payslip for case worker when its on the separate line in payslip called in words as Late Salary payment? my explanation was not putted on case at all.
Third part is 2 payslips missing as feb17 to feb 18 and may 18 are presented and case worker states that there were no those payslips in original application
(Should i send them with AR even though i know as a fact ive sent them ive got index of sent documents and copy of all documents in hard and digital copies and in both payslips are presented )
Also as it was required RTI and FPS were sent and ive checked yesterday that those 2 missing months are presented there.
Everything was covered in grounds and it was 14 pages of almost 40 points but caseworker did not answer an part of my grounds.

[marcnath]

I need your help guys
Question 1:
Should i right the points which are covered incorrectly and are not covered at All in 1 AR? ==> Yes, of course
Investment matter:
Caseworker has seen my shares on p2 in accounts but have not seen share premium on p11 ,He also missed that the date of purchase and the date of production of shares is the same as the date of appointment . ==> Explain that since there is only one transaction, both pg 2 and 10 refer to the same. The immigration rules does not specify how the information is to be provided. The requirement is that the value of the shares on the date of purchase has to be specified. If there is only one issue of shares, it is clear that all references are to the same date.
Also i should mention that information in accounts regarding investment is taken from the bank statement of the company which was provided (even if it was not necessary to provide it) so for unaudited accounts bank statement is very important document. ==> I don't understand this.Bank statement is not a required document when investment is by shares
As I mentioned before extra supportive documents were provided but were not mentioned in refusal letter and in 1 AR refusal it was not covered as well , however it was mentioned by barrister in grounds letter. ==> AR will not take additional documents into consideration
Job creation matter:
That part of the refusal even more ridicules.Caseworker states that paragraph 49(a) says 30 hours per week
which is equal to 130 hours per month that is is completely incorrect. Even though in my grounds ive covered the point of 130 hours showing the table of hours and showing that 14 months are covered .Also i explained to caseworker that 130 is average which you can get only by 1560/12 .However its not correct figure and caseworker cannot use it as it was not in the rules or guidance as it was stated in caselaw Alvi vs SSHD. ==> In my view, if the CW accepts your argument that 130 hrs/month cannot be used, then you will definitely be refused (and so will every other applicant). As you clearly have not submitted any evidence to show that you are meeting 30 hrs/week. The only way you can show 30 hrs/week without any other calculation is if you do weekly payroll. The 130 hrs/month is not in the rules but is an alternative calculation that generally works in the applicans's favour.
Where caseworker says that caselaw is not applicable here as it was used for Tier 2 and ive got tier 1 application.Which is not correct from my point of view as in case law it states that caseworker cannot use any methods which are not discribed in the rules and guidance. ==> You may be right that the argument that it refers to Tier 2 is not a valid one. However, I just looked at the case and you/your solicitor seems to have misunderstood it. It does not refer to methods. It only says HO cannot create/use new rules. And in this case, 130 hrs/month is not a new rule, it is just a means of verifying the 30 hrs/week rule.
Second thing that was mentioned in the grounds is Late salary payment (i would say the main part of refusal on job creation) ive got 4 months of underpayment which are covered in payslip in Jan and its clearly says Late Salary payment in payslip .However caseworker saying that this fact is not clearly recorded within the supportive evidence of the original application.So How clear it should be in payslip for case worker when its on the separate line in payslip called in words as Late Salary payment? my explanation was not putted on case at all. ==> So, if I get it right, you paid 4 months of back pay in Jan ? And that is shown just as one line that say Late Salary payment ? Did you have 4 separate FPS, one for each month or just one FPS in Jan covering the late payments ?
Third part is 2 payslips missing as feb17 to feb 18 and may 18 are presented and case worker states that there were no those payslips in original application
(Should i send them with AR even though i know as a fact ive sent them ive got index of sent documents and copy of all documents in hard and digital copies and in both payslips are presented ) ==> I guess the index of sent documents is something you submitted. If so, it is not a proof in itself. You can still argue that since it was documents missing in sequence, CW should have used evidential flexibility to ask you for those
Also as it was required RTI and FPS were sent and ive checked yesterday that those 2 missing months are presented there.
Everything was covered in grounds and it was 14 pages of almost 40 points but caseworker did not answer an part of my grounds.

[Vechnii]

Thank You marcnath for your help
Oregarding the date I agree with you that since it’s not specified it’s acceptable .
The only reason I’ve said about bank statement is that I’ve sent it as a supportive document and it has all transactions .
In my grounds it was 2 pages of explanations from where and how we can see all information .
Second part regarding job creation : I got your point on 130 hours and I think you are right
Late salary Payment was in January as one separate line in payslip (its imposible to do 4lines of late salary payments the amount was almost equal to the basic monthly pay of a person and I explained how it should be divided .Fps was 1 for January. So basically if case worker can’t understand how to divide that amount he can use it as just 1 month and it would be any way enough with missing months

[marcnath]

Thank You marcnath for your help
Oregarding the date I agree with you that since it’s not specified it’s acceptable .
The only reason I’ve said about bank statement is that I’ve sent it as a supportive document and it has all transactions .
In my grounds it was 2 pages of explanations from where and how we can see all information .
Second part regarding job creation : I got your point on 130 hours and I think you are right
Late salary Payment was in January as one separate line in payslip (its imposible to do 4lines of late salary payments the amount was almost equal to the basic monthly pay of a person and I explained how it should be divided .Fps was 1 for January. So basically if case worker can’t understand how to divide that amount he can use it as just 1 month and it would be any way enough with missing months

What was the reason for 4 months of late payment ? I can easily understand 1 month delay but 4 months requires some explanation.

It is near impossible for CW to determine whether it was 1 months salary or 4 months salary that was paid late.

[Vechnii]

As it was explained before and as it was explained in grounds for Admin review due to cash flow at was agreed with worker that he will get full salary payments later.Legally it is possible to pay outstanding salary later and nothing prevents it.
As my company is innovative and we are doing research on new technology we needed more money to start certifications of our newly invented product for uk market.As we were waiting to get more investments during last year we agreed with worker to pay less and close that outstanding balance at the end of a year which was done.
So I gave that explanation on AR but it was not put on case at all.
My point on new AR for job creation is: Late salary payment can be clearly seen in the payslip where the sum should be divided by 4 however caseworker can use it as 1 payment which would give us totally 10 months of full time job plus 2 months which are missing from the consequences (proven by RTI and FPS) where evidential flexibility might be used .
Also I want to mention that all the documents were sent and I believe that 2 payslips might be accidentally put in different workers folder should I say about that?
On investments matter it’s all clear as you said when it’s explained properly what I was trying to do in previous AR but I believe I can extend my own explanations giving more links between all pages of unaudited accounts.