Advice Needed – Skilled Worker Visa Submitted While on Immigration Bail (Now Facing Refusal under SW2.2(b))

[CuriousSoul15]

Hi everyone,

I’m seeking advice on a complex Skilled Worker visa situation and would really appreciate any insights, especially from those with similar experience or legal understanding.

Background:
I am an Indian national, currently in the UK.

I was previously on a Skilled Worker visa sponsored by a Highly reputed firm from 2nd feb 2022 valid until 13 February 2025. However, I was made redundant before the expiry of my visa and I found another employer willingme to sponsor me but since interviews and other checks where taking longer than usual which took approx around month or so.

Before expiry (13th feb), I submitted an FLR (HRO) application on 5 February 2025.

This application was refused on 10 April 2025, and I was placed on Immigration Bail with no right to work. I could have applied for my new SWV but there was susquent delays from the new employer on their CoS approval related issues.

What Happened Next:
On 14 April 2025, my new Skilled Worker visa application was submitted by my prospective employer through their legal representatives.

I’ve now received (10th May) a “minded to refuse” letter from UKVI, citing SW2.2(b) — stating that being on Immigration Bail makes me ineligible to apply from within the UK. And the letter states that they are giving me an opportunity to withdraw my application. They have provided me 10 working days to respond back to them with a reply else they will make decision with whatever information they have about me.

Key Concerns:
II requested the cover letter which my prospoective employer attached with my Skilled Worker Visa (14th April). The cover letter submitted did not mention Immigration Bail or request discretion.

I am now unsure whether to:

Submit further representations requesting discretion, or

Withdraw the application to avoid a refusal on my record and reapply from India. ( as i already have a FLR refusal on my file and the another refusal would highly impact my future applications).

What I’m Hoping to Understand:
Have others had any success with discretionary approval in this situation?

Would it be safer to withdraw now to protect my future application history?

Will this impact future visa applications from abroad (i.e. fresh SWV from India)?

Does Immigration Bail automatically invalidate in-country SWV applications even if made within 14 days under 39E?

I’m currently under significant stress trying to make the right decision before the 24 May deadline to respond to UKVI. Any advice or shared experiences would mean a lot.

Thank you in advance

[razergd1]

It's a bit peculiar. I don't have experience here but according to the rules you are currently an overstayer and ineligible to switch to SWV.

If they consider there is a great chance they will not apply discretion in your favour as you applied at a different category and got refused. In this case the entire period from the previous refusal up to the point you leave the country may be considered as an overstay.

If you ask me the chances of your application getting approved are slim. It is better to ask the employer to reissue defined COS and reapply from your home country, though it may reset the ILR clock.

[CuriousSoul15]

Thank you for your insights!

I wanted to clarify my situation in relation to Paragraph 39E(2) of the Immigration Rules, and would be grateful for any further thoughts.

My previous in-time discretionary application (made before my Skilled Worker visa expired) was refused on 10 April. I then submitted a new Skilled Worker visa application on 14 April, so this was within 4 days of the refusal.

Based on the wording of 39E(2)(a) and (b)(i), I believe this situation may fall under the provision that permits a new application to be made within 14 days of a refusal of a previous in-time application. If so, this period should not count as overstaying, at least not automatically — though I understand that discretion still plays a role, especially if the applicant is trying to switch categories or there are complex facts involved.

Would you agree that, at least technically, this might give me some standing to argue that I am not an overstayer under 39E, even though the application was ultimately refused again?

Of course, I’m aware that a fresh out-of-country application may now be the most practical way forward, and I’ve already communicated my willingness to do that to the employer. But I’d really appreciate any thoughts on whether I’m interpreting the rules around 39E correctly in this context.

Thanks again.

[Djsuccess]

I know someone in a similar situation. Unfortunately, every application made while on immigration bail was refused. given the current tight immigration rules, it is unlikley to issue you another visa whileo n immigration bail.

[secret.simon]

I think you are mixing up the effects of two unrelated Immigration Rules.

Let's have a look at the two separately.

By default, overstayers can not make an application for further leave to remain within the UK. Immigration Rule 39E provides certain specific exceptions to the default. Note, it does not regularise the applicant's stay. What it does is allows the overstay to be ignored for specific purposes, such as for the submissions of applications and for other such purposes. It does not have the same effect as Section 3C, which does extend leave and legal residence in the UK.

To paraphrase an online resource that I found online that I can't link to, Immigration Rule 39E applies only to applications made by overstayers. Therefore the fact that you are relying on that Immigration Rule means that you are an overstayer.

Now let's look at Immigration Rule SW2.2(b).

SW 2.2. If applying for permission to stay the applicant must not be:
(a) in breach of immigration laws, except that where paragraph 39E applies, that period of overstaying will be disregarded; or
(b) on immigration bail.

For a start, note that SW2.2 is stated in absolute terms ("must not") that do not allow for discretion.

Secondly, note that SW2.2(b) has no exceptions, unlike 2.2(a). The exception for those who may benefit from Rule 39(e) is only for those who could be refused on 2.2(a). Failing 2.2(b) is absolute, with neither exception nor discretion.

Essentially, being on immigration bail is an absolute bar to a Skilled Worker visa.

If you request discretion, you will almost certainly not be issued a Skilled Worker visa. Discretionary visas are a whole separate category, but you will likely not be covered under the provisions for Skilled Worker visa. And keep in mind that discretionary visas may not allow you to sponsor family to the UK and may lead to ILR in 10 years, not the current five years.

Before expiry (13th feb), I submitted an FLR (HRO) application on 5 February 2025.

This application was refused on 10 April 2025, and I was placed on Immigration Bail with no right to work

So, right now, your original leave, as extended by Section 3C, ended on 10th April 2025 and since that date, you are an overstayer. An application made within 14 days of that date will ignore the fact of your overstay (so SW 2.2(a) won't apply), but other requirements of the Skilled Worker visa (such as SW2.2(B)) or any other visa will apply.

Note that the window for applying for another type of visa closed 14 days after 10th April 2025. If you make a new application now, it will have to be refused on the grounds that you are an overstayer and way beyond 14 days of the end of your Section 3C leave (i.e. Immigration Rule 39E will no longer protect any immigration application made by you).

However, before it is decided/rejected, you can vary the Skilled Worker visa to a different type of visa that you are actually eligible for. But make sure you are actually eligible for it and meet all its requirements first.

I recall seeing another thread where the person had filed a frivolous FLR or fee waiver application just to extend Section 3C leave and found themselves in a corner where they couldn't actually make an application for the actual visa that they wanted. The government/Home Office has certainly tightened up the implementation of the Rules with regards to frivolously applying for FLR(HRO)/fee waiver applications just to extend leave.