applying late for Tier 1 Extension

[Mela]

@ mulderpf

Thanks for reply.

I have spoken to one of OISC Representative and he said that he can give in writing that it's not going to affect my visa extension or ILR but I am reluctant
to take that route.

If i were you i would fire OISC Rep like this and go with another one. Any reasonable man undestands that this confirmatio in writing from laywer means nothing. There are rules in place and according to these rules your ILR clock will re-set. However, case workers can exercise the right of discretion and grant ILR despite the gap, but gain if you are lucky. I would never risk applying out of time if i were you , ecpecially i fyou have straightforward case (not like other poster who have no other choice).

[cs95tdg]

netbee,r u working currently ? what did the OISC say abt ur right of work after ur visa expires? and why is that u r reluctant?

I am in your case as well..so please help me out with any input.

OP, your case and netbee's case are not the same. I.e. the reason you need to make an out-of-time application is because you do not meet the maintenance requirement. However, netbee can actually make an in-time application. The concern there is he can't find a suitable PEO appointment and doesn't want to make a postal application due to travel needs.

[mulderpf]

Immigration rules for long residence: http://www.ukba.homeoffice.gov.uk/polic ... les/part7/

Requirements for indefinite leave to remain on the ground of long residence in the United Kingdom

276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

...
(v) the applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

That's ILR for long-residence. ILR for Tier 1 (G) would be paragraph 245BF (http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/) which specifically does not mention anything about overstaying for 28 days and requires full 5 years lawful residence (something I still believe an overstay, even if 28 days, is not).

This is a horrible, horrible situation to be in. Personally, I would seek the services of a reputable solicitor to help out here and follow their advice, but try to make sure that they have some experience and know what they are doing.

[cs95tdg]

That's ILR for long-residence. ILR for Tier 1 (G) would be paragraph 245BF (http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/) which specifically does not mention anything about overstaying for 28 days and requires full 5 years lawful residence (something I still believe an overstay, even if 28 days, is not).

Yes, my bad. I've referred to the incorrect rule here, thinking it was a long residence application, after responding to a similar thread.

But for Tier 1 General Migrants, the applicable rules for ILR would be:

245AAA. General requirements for indefinite leave to remain

(a) "continuous period of 5 years lawfully in the UK" means residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

(ii) the applicant has existing limited leave to enter or remain upon their departure and return except that where that leave expired no more than 28 days prior to a further application for entry clearance, that period and any period pending the determination of an application made within that 28 day period shall be disregarded; and

(iii) the applicant has any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period disregarded.

245CD. Requirements for indefinite leave to remain

[n8net]

That's ILR for long-residence. ILR for Tier 1 (G) would be paragraph 245BF (http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/) which specifically does not mention anything about overstaying for 28 days and requires full 5 years lawful residence (something I still believe an overstay, even if 28 days, is not).

Yes, my bad. I've referred to the incorrect rule here, thinking it was a long residence application, after responding to a similar thread.

But for Tier 1 General Migrants, the applicable rules for ILR would be:

245AAA. General requirements for indefinite leave to remain

(a) "continuous period of 5 years lawfully in the UK" means residence in the United Kingdom for an unbroken period with valid leave, and for these purposes a period shall not be considered to have been broken where:

(i) the applicant has been absent from the UK for a period of 180 days or less in any of the five consecutive 12 month periods preceding the date of the application for leave to remain;

(ii) the applicant has existing limited leave to enter or remain upon their departure and return except that where that leave expired no more than 28 days prior to a further application for entry clearance, that period and any period pending the determination of an application made within that 28 day period shall be disregarded; and

(iii) the applicant has any period of overstaying between periods of entry clearance, leave to enter or leave to remain of up to 28 days and any period of overstaying pending the determination of an application made within that 28 day period disregarded.

245CD. Requirements for indefinite leave to remain

so what is the upshot here ?

if i apply for Tier 1 (G) extension within 28days of expiry - my ILR will not be reset ?

i thoguht 245c (g) is the applicable rule here.

hi cs95tdg - i hv sent you a private message..plz respond as soon as you can.

thanks

[mulderpf]

Yes, I concede that I am wrong!! cs95tdg - 1; mulderpf - 0 (just kidding ).

So ILR doesn't seem to be a problem with a late application - at least.

[netbee]

Thanks every one for your replies. It's been great help. Much appreciated.

I have a couple of more questions. If I apply separately through PEO and send my two dependents visa through post it should be fine right?

I should be able to use my bank statement as their maintenance funds ? In case of they apply separately to me?

In Tier 1 dependent form version 10/2012 , section regarding BRP, it doesn't have option if BRP is not issued, what shall I put in this case. Because we applied before april 2010 and don't have BRP.

Regards,

[cs95tdg]

hi cs95tdg - i hv sent you a private message..plz respond as soon as you can.

In effect, you are asking whether if you knowingly make an in-time invalid application, that would help you meet the maintenance requirement and also retain your right of appeal when you subsequently apply at the time your invalid application is returned.

I'm afraid I'm no expert when it come to immigration to be able to advise you what to do. But if I've understood you correctly, you appear to be asking whether manipulating the system, to accomodate your maintenance fund requirement is alright. If it's my opinion you're asking for, I'd have to say No. What I would urge you to do is seek legal advice, as your case is not straight-forward.

[Mela]

hi cs95tdg - i hv sent you a private message..plz respond as soon as you can.

But if I've understood you correctly, you appear to be asking whether manipulating the system, to accomodate your maintenance fund requirement is alright. If it's my opinion you're asking for, I'd have to say No. What I would urge you to do is seek legal advice, as your case is not straight-forward.

Absolutely agree. the CW are very experienced and can recognize the attempt to manipulate the system straight away and you will make things whorse. To prevent this, in fact, all invalid application have to be resubmitted as a new ones and this is done for the purpose to prevent people from "buying time" to meet the criteria.

and yes, you urgently need to speak to a good lawyer as you dont have time and finding a suitable lawyer may take time

[n8net]

and yes, you urgently need to speak to a good lawyer as you dont have time and finding a suitable lawyer may take time

Hi all thanks a lot for your replies.really been helpful to find a solution.

but not sure how speaking to a lawyer gonna help my case.what different thing they are going to say other than what you guys have discussed.
call me naive,my i dnt see wht difference a lawyr can make and can they guaratee reasonable chance of success ? plz correct me if I am wrong

so just to summarise what I hv learned so far is,
a) I can't make in-time application - bcoz only 89 days the case worker will reject straightaway.or is there a element of chance given a good caseworker looks at this and excuse just a day short?

b) I can't make out of time postal application bcoz I will not hv right to appeal and can't work.

c) I can't go to PEO to mimimise the time I am in UK without job bcoz PEO will not accept out-of-time application

d)does going to PEO with an in-time application help my cause in anyway?

[Mela]

and yes, you urgently need to speak to a good lawyer as you dont have time and finding a suitable lawyer may take time

d)does going to PEO with an in-time application help my cause in anyway?

if i understand correctly you are short on funds even if you apply on the last day you visa expires, so you most likely will be rejected on this criteria at PEO with the right to appeal, which is not going to be be helpful as you cant submit any new pieces of evidence during the appeal and you will lose the case, i wouldnt risk it.

also, didnt you mention your visa is expiring on 15th of Feb 2013, which is tomorrow...even if you want to you cant book appointment on a short notice like this unless some miracle happens.

[n8net]

d)does going to PEO with an in-time application help my cause in anyway?

if i understand correctly you are short on funds even if you apply on the last day you visa expires, so you most likely will be rejected on this criteria at PEO with the right to appeal, which is not going to be be helpful as you cant submit any new pieces of evidence during the appeal and you will lose the case, i wouldnt risk it.

thanks Mela,but I can show proof for funds held in a foreign account if I go to appeal ? will that be accepted ? it is just that I cannot get the document sent from abroad for the application tomorrow.

appreciate your quick reply.if I apply in-time that is tomorrow on the date my visa expires am I 100 % hv the right to appeal and will the foregn funds be accepted in that appeal ? and how long the appeal will take in your opinion?

thanks

[quantum1]

I am fairly certain that you can make an out of time application at the PEO. I have found no evidence that you can't?

[immiadvisor]

I've been reading the previous posts and have a doubt. couldn't our friend add his name onto a friend/family member's bank account (in the UK) and then get them to sign the declaration on the application form.

I know it's too late now but couldn't you have submitted joint account statements with that other person?

I'm not sure if that is allowed, but I don't see why not?

[cs95tdg]

As far as I'm aware joint account statements are allowed, so long as the applicant has the consent of the other party. I believe there is a section in the T1G form where the joint account holder needs to provide consent for the UKBA to perform the necessary checks.

As quantum1 suggests, I too have been unable to find an explicit UKBA reference which states that you cannot make an out-of-time PEO application. However I have seen a post or two on this forum, where an applicant was turned away at a PEO, when they attempted to make an out-of-time application in-person.

[Mela]

if i understand correctly you are short on funds even if you apply on the last day you visa expires, so you most likely will be rejected on this criteria at PEO with the right to appeal, which is not going to be be helpful as you cant submit any new pieces of evidence during the appeal and you will lose the case, i wouldnt risk it.

thanks Mela,but I can show proof for funds held in a foreign account if I go to appeal ? will that be accepted ? it is just that I cannot get the document sent from abroad for the application tomorrow.

appreciate your quick reply.if I apply in-time that is tomorrow on the date my visa expires am I 100 % hv the right to appeal and will the foregn funds be accepted in that appeal ? and how long the appeal will take in your opinion?

thanks

Does your foreign funds cover the whole 90 days period prior to the submission of application? if yes, then its fine, foreign accounts are of the same value as the local ones.
the problem is that its not possible to submit new pieces of evidence during the appeals nowdays however, you could try and send the foreign bank st-ts as soon as you receive them and post them to UKBA while your application is in the progress and before it is rejected. however, there is no guarantee that CW will consider them, but there is a hope at least.

[Mela]

As quantum1 suggests, I too have been unable to find an explicit UKBA reference which states that you cannot make an out-of-time PEO application. However I have seen a post or two on this forum, where an applicant was turned away at a PEO, when they attempted to make an out-of-time application in-person.

Please find the link to the UKBA PEO appointment

http://www.ukba.homeoffice.gov.uk/about ... oservices/

yes there is no explicit statement that applicant can not apply with the out of time application, but out of time applications are implied to be outside the immigration rules and these kind of cases considered to be complex, hence normally all out of time applications are turned down. Moreover when i spoke with the reputable lawyers regarding the out-of-time applicatiosn they confirmed that this is not possible. But again, if there is one day lapse only then OP can hope for discretion of the caseworker.

[n8net]

As far as I'm aware joint account statements are allowed, so long as the applicant has the consent of the other party. I believe there is a section in the T1G form where the joint account holder needs to provide consent for the UKBA to perform the necessary checks.

guys I am almost there to my judgement day..need to make up my mind with the following.

whether yo apply late (with a valid application and lose the right to appeal and work) or to apply with only 89 days and sending other next day statement to make up consecutive 90 days.

plz help me decide

[cs95tdg]

OP, unfortunately no one on this forum can really help you decide. Everyone has contributed with what they know, now the ultimate decision has to be yours with the information you know. It's a terrible place to be, I know, & I wouldn't wish it on anyone.

May I ask whether you have tried getting a copy of the overseas bank statement (which satisfies your maintenance requirement) you mentioned in your previous response via fax, or email (scanned copy)? While the UKBA will only accept originals, my thought is that, if you at least managed to get a copy of the statement to submit with your in-time postal application you may be able to send the original soon after you get it. I don't however know whether this will be accepted by the UKBA, it's just another suggestion.

I wish you luck.

[cs95tdg]

OP, I just stumbled upon this topic, which I believe is worth a read.... http://www.immigrationboards.com/viewto ... 799#590799

[Mela]

OP i understand you are worried, hope your situation will resolve soon.

consider following:

1. if you apply in-time and send the original overseas statements later to UKBA, CW may or may not consider this. so its 50/50 chance. appeals under current rules does not allow you to submit new evidence, so dont hope for appeal. Downside; high chance you will be turned down. Upside: if all goes smoothly you dont need to give up your job while your application is considered. So its all about high risk-good value in option 1

2, if you apply out of time high chance your application will NOT be turned down, if it s less than 28 days overstay and your case become pretty straightforward with all the docs in hands. Downside: work susupension until its all resolved and t most importantly, possible re-set of ILR clock. Upside: your visa most likely will be approved. Its low risk-low value scenario

Now you have to decide what is more important for you. Im not personally a risk taker and perhaps would go for option2, i will still try to book PEO app-t out of time hoping for discretion of CW, the whorst i will lose is the fee if im turned down

[n8net]

thanks guys.great help.

in the case I amke in time application and it is turned down can I apply for Tier 2 if my company willing to sponsor me? and will my ILR clock be reset in that case ?

[cs95tdg]

A T2 application is possible if your employer is willing and able to sponsor you, but whether or not this will reset your ILR clock would depend on the timing of the application approval and your FLR grant date. It's difficult to give a yes or no answer to future events where dates are not known.

Have you considered seeking legal advise as suggested before in order to cover all bases?

[Mela]

OP your ILR clock may re-set if your T1 is rejected and your company subsequently applies for Tier 2. However, there are ways around it, so the lawyer will be of help

If you decided to apply T1 in time then best of luck to you, jsut get the foreign statement asap. It might be a good idea to attach a covering letter along with your application that you requested for foreign bank statements and waiting for them and send them shortly, so that CW is aware that you will send additional docs, so more chances for you not to be rejected. CWs are human beings and not machines and some of them may be compassionate and show some signs of undesratnding. Dont forget to indicate your Ref Number in all communication so that it can reach your caseworker.

Speaking of my own experiene, CW contacted me for bank statements beleiving the ones i sent were duplicates(they were not in fact) so there is a hope you will be conatcted for missing information or may be you would be able to provide it before they contact you.

Meanwhile, strat preparing for the whorse to happen and dont leave the things to the last minute. Its a time to speak to a laywer about your case and strat preparing for the Tier 2 in case you are rejected T1 you can act fast then.

Keep us updated.

[n8net]

thx guys for the help so far ,especially Mela for the risk anaysis which helped me make a decision.

I hv applied today with a covering letter and I hv been genuine to highlight I am 1 day short and will send statements to complete the missing day and expect the CW to show some compassion.

Mela,can I ask you what you mean by the ref ? the references number that will be on the letter sent out my the HO.so shud I wait till I receive the ack letter to send the satements ? coz I can hv the HSBC sttmnt printed out for the 18th next Monday and send it as well.

talking abt HSBC statements,the branch I went to did NOT stamp it and only gave print out which to me did not look convincing and only gave it upto the 13th after which no transaction has happened.so I had to take some money out and then asked them to print again and this time the paper quality was OK but it had only one transaction 13th to 15th Feb and had "DUPLICATE" written over it...not sure if it is the standard practice by HSBC or that branch .since I was in a hurry to post the application I good not argue ..would those statements accepted ? I am going to send the originals when I receive them as well..any1 had similar expreiences?