28 day time period after PSW expired for new Tier - 2

[kaaru]

Hello, I am trying to switch from Post study work(PSW) visa to a Tier - 2 general visa. I've already made an application and it got rejected as my Employer had made mistakes in getting
my Job title and my working hours right. My PSW has expired in mid February. I got the rejection documents on the 10th april. My employer immediately started to get in touch with the
Employer's helpline number for the Border agency and has confirmed to me that we still have a 28 day time period to re - submit a new application with a new COS and that we still have
a good chance making a succesful application considering getting the documents right this time.

My question here is do I still have the 28 day time period even though my PSW expired mid february to re - submit a new application for tier - 2 general.

[manci]

you have 28 days from the date of refusal to submit a new application (with a new CoS)

[kaaru]

Many thanks for the message manci. My PSW has already expired and I've got my refusal letter only last Friday. Could you please confirm I can still submit a new application along with a new COS in this 28 days even though my PSW has expired.

You have said that I still have 28 days, would you be able to send me a link from the Border agency that the information is verified and is right, so that I can have a read through as well.

Many many thanks for your efforts, I really appreciate it.

[vinny]

Note that if you made a valid in-time application, then you are not yet an overstayer until leave extended under Section 3C ends.

They will consider a further application for leave to remain after leave under section 3C ends, subject to 245HD(p), etc.

However, making an out-of-time application for leave to remain may be risky.

[kaaru]

Many many thanks for the reply. Okay I am still confused here manci.. I will keep things simple.. I will give you my details would be able to give me your feedback on the application. The details are as follows

PSW Expiry date - 14/02/2013
Tier - 2 application date - 23/01/2013
Tier - 2 refusal date - 10/04/2013

This time around considering if I re - submit my application as a new application along with a new correct COS, would I be successful in making a successful application considering I've got my documents right.

[manci]

you can submit a new application, with a new CoS, within 28 days counted from 10/04/2013.

If your new application meets all current requirements (note the changes to SOC codes, min. salaries, length of working week, etc as of 6 April) it will be granted.

[kaaru]

Many thanks for the message Manci. I'am still struggling to come in grips with certain things.

I've told you that I received my refusal letter on the 10'th April along with most of my documents. I am still yet to receive my Passport and I don't know where it is in the border agency. I am completely lost and I need some help.

For the most of today I've been trying to find out where my Passport is within the Border agency. The Border agency hasn't been helpful at all. One lady was suggesting I've got to ring the telephone number of the end of the appeal section of my refusal letter to let them know that I've decided not to apply again and that they would get my Passport sent over to the Tier - 2 department. Unfortunately, that number of the end of the appeal section doesn't work at all, which is very frustrating to have a telephone number as a helpline for the appeal section to be not working. Another lady was suggesting me to submit a requests for return of documents and I feel that is only when you want documents when you've got a leave to remain in the UK. So, it's has been a really frustrating day so far as it's been quite confusing.

I need some help here to retrieve my Passport here as I've to re - submit a new application as soon as possible. Where do think my Passport is and how do I retrieve it to submit a new application.

I look forward to hear from you.

[kaaru]

Hello I've got another question as well. I have been receiving Working tax Credit over the last ten months or so and do you think it would affect me in making a successful application by any way.

I had applied for my Working tax by mistake but I've cancelled the Working tax credit today over the Phone with the HM Revenue and tax systems.

I am just wondering Working tax Credit would affect my application and is that the reason my Passport is yet to be returned to be or is it because my PSW has already expired and hence UKBA is waiting for me to make a decision?

[manci]

your pssport will not be returned with the refusal letter.

If you re-apply within the 28 day period after the refusal just send a copy of the refusal letter and state that your passport has been retained by UKBA.

Working tax credit is a public fund, see
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
If your visa states "no recourse to public funds" then you have been in breach of this visa condition. How have you answered the public funds question in your previous T2 Grant of Leave application?

[kaaru]

Many thanks for the reply. So, I will have to submit a letter saying that my Passport has been retained by the Border agency and submit my refusal letter as well. Okay thanks for that.

yes, in my previous application I had checked the check box for Working tax credit when I had submitted my application. But in my refusal letter nothing was mentioned about it and I've cancelled my working tax credit today and so this time around when I submitting a new application can I say that I am not receiving any working tax credit.

If you refer Page 24 on the following link

http://www.ukba.homeoffice.gov.uk/sitec ... nform1.pdf


I don't know if it applies for Tier - 2 general, the Working tax credit? but I've cancelled it anyway.

If I had breached the rules of the Immigration, why wasn't my application rejected straight away and why wasn't it mentioned in my refusal letter.

It would be of great help if you could help me on it..

[kaaru]

Hello, I am trying to switch over from PSW to Tier - 2, so does it apply to me. I think it applies to Tier - 2 if I am currently under the Tier - 2 and I am and I am trying to extend my leave again under Tier - 2.

I referred to this information from the Tier - 2 policy guidance. Page number 41 of 59 under conditions of leave. The link is as follows

http://www.ukba.homeoffice.gov.uk/sitec ... idance.pdf

[manci]

Many thanks for the reply. So, I will have to submit a letter saying that my Passport has been retained by the Border agency and submit my refusal letter as well. Okay thanks for that.

yes, in my previous application I had checked the check box for Working tax credit when I had submitted my application. But in my refusal letter nothing was mentioned about it and I've cancelled my working tax credit today and so this time around when I submitting a new application can I say that I am not receiving any working tax credit. you must answer question G1 truthfully
If you refer Page 24 on the following link
http://www.ukba.homeoffice.gov.uk/sitec ... nform1.pdf

I don't know if it applies for Tier - 2 general, the Working tax credit? but I've cancelled it anyway. No recourse to public funds is a condition for both to T1 PSW and T2G

If I had breached the rules of the Immigration, why wasn't my application rejected straight away and why wasn't it mentioned in my refusal letter.
probably because it is discretionary matter, see p22 and p25:
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
and Immigration Rule 322(3)
You may consider re-paying the working tax credit that you received and clean the slate that way.

It would be of great help if you could help me on it..

[kaaru]

How do I repay the Working tax credit that I've received so far and even if I have paid it would the system get updated in time from the HM Revenue and customs side.

Would i still have time to make a successful application?

I am sorry i still don't understand completely? would you be able to explain a little more..

[manci]

How do I repay the Working tax credit that I've received so far and even if I have paid it would the system get updated in time from the HM Revenue and customs side.

Would i still have time to make a successful application?

I am sorry i still don't understand completely? would you be able to explain a little more..

If you decide to repay the working tax credit you received send a cheque to where the payments came from with a covering letter. As far as UKBA are concerned it should be sufficient to send a covering letter with your application explaining that you erroneously claimed working tax credit, realised that you shouldn't have and have repaid it all, enclosing evidence of the repayment. There is no guarantee that this will work but it may.

Read 322(3) of the Immigration Rules here:
http://www.ukba.homeoffice.gov.uk/polic ... les/part9/

If you decide to re-apply you must do so within 28 days of the date of the refusal letter. You must of course have a new CoS and comply with the new rules with regard to SOC codes, min. salary, length od working week, etc. If the new application is also refused there will be no right of appeal.

[elaya555]

your pssport will not be returned with the refusal letter.

If you re-apply within the 28 day period after the refusal just send a copy of the refusal letter and state that your passport has been retained by UKBA.

Working tax credit is a public fund, see
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary
If your visa states "no recourse to public funds" then you have been in breach of this visa condition. How have you answered the public funds question in your previous T2 Grant of Leave application?

Hi Manci,

application date: 12 feb
visa expired: 14 feb
refusal date: 23 march
appeal : 08

tried to submit my application again within 28 days from the time of my refusal but to getting a new COS caused us some delay so unfortunately
now i am running out of that 28 days so i afraid whether I can able to re-apply again within the country?

some solicitors saying i can because i made an appeal so there wil not be counting this 28 days.. is this true?

pls advice & thank you

[vinny]

some solicitors saying i can because i made an appeal so there wil not be counting this 28 days.. is this true?

See also Court hearings and appeal - Tier 2.

[manci]

Posted: Mon Apr 15, 2013 1:54 am Post subject:

--------------------------------------------------------------------------------

My understanding is that:

You cannot vary nor make a fresh application for leave to remain while an appeal is pending (3C(4)). However, you may make a fresh application for leave to remain if the pending appeal ends.

If you withdraw your appeal, then the pending appeal ends (104(1)(b)). That is when Section 3C(2) finishes. It's at that time when you become an overstayer.

Moreover, if it's unlikely that the UKBA will make a decision on a fresh out-of-time application within 90 days, then it's risky making the fresh application from within the UK. Additionally, there isn't any right of appeal against a refusal of an out-of-time application.

This principle applies to all overstaying, not just overstaying after withdrawal of an appeal.

According 245HD(p) applications submitted during the 28 day grace period will not fall for refusal automatically because of overstaying. The time when a decision is made on the application is outside the applicant's cpntrol.

If the 90 day rule were applied in these cases then UKBA could deliberately delay making a decision so that the migrant can be removed after the 90 days have passed.

I doubt if they engage in this practice (haven't heard of any cases)

a similar consideration came up in the context of ILR where if a migrant switches from T2 to T1 the 60 days break in employment does not extend beyond the making of the T1 application. This has been introduced after the unfairness of of the 60 day break rule was brought to the HO's attention, i.e. that the migrant is not in control of the time when UKBA make their decision.

[kaaru]

Hello, considering if I've submitted a fresh application for leave to remain in the UK under Tier - 2 in the 28 day windows period am I allowed to work normally as I did earlier or do I have to wait until a decision is made on my fresh application.

If I am allowed to work, would you be able to explain under what regulations I am allowed to work. Is it still under my PSW? or is it something different which allows me to work.

All your inputs in answering my questions have been extremely helpful and I really appreciate it.

Many thanks

[vinny]

Overstayers have no right to work.

[kaaru]

Many thanks for the post Vinny. I have already made an in - time application before for leave to remain in the UK and it was rejected as my employer had made mistakes in my Cos. I am submitting a fresh application along with a new Cos this time within the 28 day window period after the date of my refusal.

So am I a over stayer in this case.

[vinny]

Unfortunately, yes.

[elaya555]

Overstayers have no right to work.

Hello,

Date of initial application : 12th Feb 2013
Date of Leave to Remain (PSW) : 14th Feb 2013
Date of Refusal Letter : 23rd March 2013
Date of Appeal : 8th April 2013

I made an in-time appeal and now I am planning to make a fresh application but i am not quite sure whether i can do that as i am ran out of that 28 days from the time of my refusal.

some solicitors advised me that i CAN able to submit a fresh application as i made in-time appeal and therefore the 28 days grace time will start only the day when i withdraw an appeal.

please tell me whether its correct or not? thank you in advance

pls Manci or anyone reply waiting for your answers....

[vinny]

Answered.