Tier 1 Administrative review

[Sanjeshsh]

Dear esteemed board members,


Your guidance on my current situation will be deeply appreciated,

My wife currently on Tier 1 and myself as a dependent submitted the application for extension on 30th November 2018 , the expiry date of my existing visa was 2nd December,
Our application was refused on 26th February 2019 , the reason for refusal was that we did not submit documnets demonstrating investment and job creation.
The reason for not submitting the documnets on time was some key documents were lost and had to be regenerated ,compounding the issue was the representative managing the application had health issues and was unable to support in sending documnets on time.
We had written to HO of our concerns and requested some additional time. All the documnts were sent in 3 batches between 30 nov and 28th feb.
However before they could recive the last set of documnets the decision was made. We were given right to AR which has now been submitted and currently under process.

My queries to board members is.

If the decision of AR is not in favour, can i submit a fresh application without being considered as overstayer as my wife would be eligible for ILR based on 10 year route on 20 December.

My representative has also advised me to submit a new application for FLR before the outcome come of AR. Will this be considered as overstay if I submit a new application before the outcome.

I am also currently in discussion with my employer to provide a COS to atleast cover the period till Dec when I can apply for my wife's ILR.
If they agree and i with draw my applicatin to go to my home country to apply. Will I be conisderd as an overstayer or do they give some time to book flight and leave before brech of immigration rules

I would also be grateful if the senior members could advise me the right way to get across coming monts ( till Dec) in right way to be able to apply for the ILR.

[marcnath]

Given that you have not submitted the required documents prior to the decision being made, you chances of success in AR are very low.

Once the AR is refused, you and your wife will be classed as overstayers - it does not matter what visa you apply for after that or you leave the country the day after the decision is refused.

But note that being an overstayer does not automatically disqualify you for other applications. You can still make a fresh application within 14 days of the refusal without any negative impact. If the next application is successful, the overstay period is ignored for ILR calculations (irrespective of how long that decision takes)

20th December is a long way off. Your fresh application is likely to be decided before then. If that is successful, then your wife can apply for ILR(LR) in December. You will have to move to FLR(M) and wait another 5 years for your ILR.

Don't understand why you would apply for FLR ? Do you believe that a fresh application will be unsuccessful for some reason ? Are you short on any of the criteria ?

Withdrawing both your application (before a decision is made) and leaving the country and applying for a Tier 2 within 14 days of departure will maintain your wife's 10 year as long as she is back in the country within 6 months of departure.

[Sanjeshsh]

Thankyou marcnath,

The reason i was advised to apply for FLR before the decision of AR is , we have invested £50,000 in the business but with regards to job creation the total hour are short of hours roughly (300)
We had 3 people one full time she worked for 13 months before leaving for maternity and 2 part time who worked for 3 an 5 months but left as there found other opportunities
it is hard to find someone with residency to be able to work for small business cos they leave as soon as they get a better job
My representative suggests that if we file for FLR before the decision of AR , we would be covered under section c until the a decision is made on the FLR.
But this will change if i file for FLR and if we are not coverd under section c. Hence i am waiting for my employer to confirm so i can file for my wife FLR and go back to apply for my tier 2
Considering that my employer agrees to give me cos which i will know next week.
I was planning to only withdraw my application go back and apply for tier 2 and put in application of my wife as dependent on my return.

[marcnath]

If had one FT for 13 months and two part time for 3 & 5 months each, you are way more short than 300 hrs. That is only 16 months of the 24 months needed. If the employee was still employed during maternity leave, that leave period should be claimable also.

Obviously you can now use employment until now in the fresh application, so if you still had employees then you possibly meet the requirements.

Your rep is wrong in saying applying for FLR will maintain 3C protection. If you have that in writing you should report the rep to home office.

[Sanjeshsh]

Thankyou marcnath,

Unfortunately i don't, we have discussion on phone.
I have repetadly reminded him to double check this, but his argument is that, it is applicable in case a person has not filed for AR with in 14 days of refusal and submits a new application for FLR or filed for AR after 14 days given and then varies application to FLr
His argument is that since we have filed for AR within 14 days and if we vary the application to FLR this will be considerd.
He has even advised me to speak to HO customer service team tomorrow morning and check to be sure.

[Sanjeshsh]

Hi marcnath,

You comments on my last post will be deeply apprected as it will guide me in making the right decision

[marcnath]

Thankyou marcnath,

Unfortunately i don't, we have discussion on phone.
I have repetadly reminded him to double check this, but his argument is that, it is applicable in case a person has not filed for AR with in 14 days of refusal and submits a new application for FLR or filed for AR after 14 days given and then varies application to FLr
His argument is that since we have filed for AR within 14 days and if we vary the application to FLR this will be considerd.
He has even advised me to speak to HO customer service team tomorrow morning and check to be sure.

You can check as much as you want and I would advice you to do so, but Section 3C is unambiguous. It ends when a new application is filed - what ever the application is.

The relevant sections are :

(2)The leave is extended by virtue of this section during any period when—
(a)the application for variation is neither decided nor withdrawn,
....
....
, or
(d)an administrative review of the decision on the application for variation—
(i)could be sought, or
(ii)is pending.]

So, clearly it only applies when the application or AR is pending.

It further states that :

(4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

So, any new application you make is not a variation of the original application, but will be a new application.

[Sanjeshsh]

Thankyou marcnath, you support is much apprecited , i will post the outcome of my decisions and efforts i made to hopefully guide other members of the board.

Thankyou once again.