31st January Changes and Older Guidance Policies

[RizKCB]

Can anybody please share their views about the matter as follow:

As we know, new rules are imposed on 31st January 2013 for Entrepreneur Visa applicants who applied before 31st January.

Does it also mean that everything written in Guidance Policy on 31st January 2013 will be applied automatically on all Pre-31st January applicants?

I met a solicitor a few days back when he told me that after 31st January 2013, we cannot even refer older guidance policies in appeal process of older applications. I have argued with him that how is it possible? Because Rules of 31st January do not state anything about consideration of applications under latest policy guidance on 31st January.

[Entrepreneur9]

It depends on the reason for your appeal.

Can anybody please share their views about the matter as follow:

As we know, new rules are imposed on 31st January 2013 for Entrepreneur Visa applicants who applied before 31st January.

Does it also mean that everything written in Guidance Policy on 31st January 2013 will be applied automatically on all Pre-31st January applicants?

I met a solicitor a few days back when he told me that after 31st January 2013, we cannot even refer older guidance policies in appeal process of older applications. I have argued with him that how is it possible? Because Rules of 31st January do not state anything about consideration of applications under latest policy guidance on 31st January.

[Mr Legal]

Can anybody please share their views about the matter as follow:

As we know, new rules are imposed on 31st January 2013 for Entrepreneur Visa applicants who applied before 31st January.

Does it also mean that everything written in Guidance Policy on 31st January 2013 will be applied automatically on all Pre-31st January applicants?

I met a solicitor a few days back when he told me that after 31st January 2013, we cannot even refer older guidance policies in appeal process of older applications. I have argued with him that how is it possible? Because Rules of 31st January do not state anything about consideration of applications under latest policy guidance on 31st January.

Yes your solicitor was right because after 31st January or any application before it and were still under process,would be considered in accordance with new rules.At the time of new rules,it was clearly notified as follows::::

""""""""This page provides guidance on the changes to the Immigration Rules for the Tier 1 (Entrepreneur) category, in particular for applicants who applied before 31 January 2013 and are waiting for a decision on their Tier 1 (Entrepreneur) application""""""""

you need to read carefully for further guidance.

[RizKCB]

Mr Legal, you are right and I agree that rules are applied on previous applicants.
My question is something else:

For example if in appeal, a point is raised before judge that the guidance policy which is followed did not have adequate explanation of an element? Can it be a valid point to raise? That element is not from any new rules of 31st January.

Solicitor says that you cannot refer older policy now even the refusal reason is not based from those 31st Jan rules.

I am preparing an image link for better understanding what i mean.

[RizKCB]

http://tinypic.com/view.php?pic=2unu4p2&s=5

Hope you may view it

[RizKCB]

Solicitor also told about a case where UKBA did not call applicant for interview and refused application on the same reason. Judge given comments that She is not a competent authority to decide it and referred back it to the Secretary of State (UKBA). Then UKBA again called the applicant for interview and then refused the application after interview.

In the refusal case which I have shown in image; UKBA did not call for interview. Application is made in October. In refusal reason, caseworker mixed two policies 1) August 2012 2)December 2012
To create refusal point, caseworker referred December 2012 policy which came after the application made.

According to Solicitor there are two possibilities of this case:

1) Straight decision allow/not allow
2) Unable to follow by judge and could be referred back to UKBA to follow their procedure according to 31 Jan rules to consider Genuine Ent Test first.

[RizKCB]

http://tinypic.com/view.php?pic=2zrgxgp&s=5

In this link, you may see how caseworker crafted refusal reason.

[Mr Legal]

Mr Legal, you are right and I agree that rules are applied on previous applicants.
My question is something else:

For example if in appeal, a point is raised before judge that the guidance policy which is followed did not have adequate explanation of an element? Can it be a valid point to raise? That element is not from any new rules of 31st January.

Solicitor says that you cannot refer older policy now even the refusal reason is not based from those 31st Jan rules.

I am preparing an image link for better understanding what i mean.

I understand what you mean and I think so far as the new rules are concerned in relation with previous or fresh applications,they require to ask an applicant to provide this and that information or additional evidence in accordance with new rules and if they haven't asked for them,it means they have found nothing wrong or miss in an applicant's case. In this context,the tribunal may consider your request to explain your case across the old and new rules.
However, Tribunal is an independent body and they may consider your case in rules at the time of first application.If your job description is accurate of that at the time of first application,the tribunal may look at this first.

[RizKCB]

Thanks a lot Mr Legal.

[LEGAL SOLUTION]

hi Riz

i agree that the old policy is no more valid after 31 january even for the old cases. but an argument is that whether the applicant was given chance to explain himself or meet the new requirements or not. if not; doctrine of evidential flexibility will help

[RizKCB]

Thanks Legal Solution. You point is logical.

[RizKCB]

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary


Statement of Changes in Immigration Rules introduced on 30 January 2013 clearly defines Changes on page 4 to 8. It means the changes discussed here would be applied to old applicants only. Other than these paragraphs/clauses would be same as that on the time of application.

Am i right?