Tier 2 extension - a total of 5 or 6 years?

[Vvida]

I came into the country Sep 2005 on a student visa for 4 years.

Then switched to 2 years PSW permit. During this time for over a year I had a job (the same I still hold but stayed on PSW and didn't switch to Tier2 cos I'm smart like that!).

I switched to Tier 2 General sometime August 2011 for 1 year (so after the new rules concerning Tier2 were introduced in April 2011), (initial work contract was 2 years, 1 of which I had stayed on PSW).

In July 2012, I then got a new 5 year work contract until July 2017. HR applied for a 3 year COS instead of 5, so got Tier 2 extension for 3 years till Sep 2015. That takes my total stay on Tier 2 to 4 years ( 1 + 3 ).

Sept 2015 is also 10 years for me in the UK and I should qualify for ILR, however I might not be able to do this due to a pending possible criminal conviction (still to go on trial as we speak).

Will I be able to get a Tier 2 extension for 2 years come September? That would make my total stay under Tier 2 six years and not five.

Should I rather apply under Article 8 since I have 10 years of lawful residence without bothering with Tier 2 extension? No family ties here, I am a single person.

I will need 2 years from 2015 to potentially clear my name in terms of bad character and successful ILR application. I do not think I could succeed this year if I were to obtain a conviction.

It will also then be a £35,000 threshold salary rule to qualify. I am currently being paid an appropriate rate for my job and don't see myself being paid over 30K in 2 years time. Will that jeopardise my chances for ILR in 2 years time? Should I make my mind up that I won't be allowed to stay in this goddamn country ever?

Please advise. Thank you!!

[Amber]

You can extend on FLR(LR) once you reach ten years continuous lawful residence for example, if you have a pending prosecution. It's not Article 8 extension it's an extension under the rules.

[Vvida]

Thank you very much Amber.

At the end of those 2 years when applying for ILR, is there a salary requirement of 35k min?

I've entered the country in October 1st 2005 and my current tier2 expires 20th of Sept 2015. Can I apply for FLR (LR) from Sept 1st as in 9 years 11 months from day I came to the country?

[Obie]

I am of the view that OP may be able to avoid 276B(iii) , but it still remains the case, that despite that, he may still stand the risk of a rejection under 276B(ii)c.

[Vvida]

Do I qualify for FLR(LR) with a criminal conviction to allow me to extend for 2 years before qualifying for ILR?

[Obie]

Do you have a criminal Record?

[Vvida]

Do you have a criminal Record?

I do not as of yet, my trial is pending, I am innocent, I am hoping I will not get convicted. This is me freaking out in case I will be found guilty...

[Obie]

Stop freaking out then. I don't think it will help much.

In your case I think it a kind of the winner takes it all kind of situation.

Either you are not found guilty and you get ILR or you are found guilty, and you don't get ILR or an extension.

[Vvida]

Either you are not found guilty and you get ILR or you are found guilty, and you don't get ILR or an extension.

Well that is exactly what I wanted to know. What happens in the event I am found guilty. I have been told previously and just above that I would get an extension and on completion of 2 years, I could apply for ILR. Now you are suggesting, I will lose it all and will have no other grounds to remain in the country?

[Obie]

If you are found guilty, the length of the sentence you receive will be a material factor.

Then one will have to see, whether having regards to your character, your personal circumstance, including conviction, it is in the public interest to grant you an extension.

Depending on the conviction and the view taken by the Secretary of State, you may get the extension.

[Vvida]

If you are found guilty, the length of the sentence you receive will be a material factor.

Then one will have to see, whether having regards to your character, your personal circumstance, including conviction, it is in the public interest to grant you an extension.

Depending on the conviction and the view taken by the Secretary of State, you may get the extension.

My case is a trivial matter about £20 alleged gain that I took to Crown Court to get a fair-er trial by judge and jury. I am therefore a floater (not on a fixed trial date) on a warned list to be heard hopefully soon. The likely sentence for this type of crime for someone who's never been in trouble before is a small fine or low level community sentence. I don't see how the Secretary of State will view me as a danger to society. I see cats on the street more 'dangerous' than me.

I am a honest hard working person who's come here to study and have a career and a decent life. My plan was to get an ILR after a decade in the country and continue my course of life here. I am enquiring to put my mind at ease, what other routes to pursue IF that was to change.

Hence my question what type of extension to get if I cannot apply for ILR. FLR(LR) that Amber suggested still stands?

[Obie]

(ii) having regard to the public interest there are no reasons why it would be undesirable
for him to be given indefinite leave to remain on the ground of long residence, taking into
account his:
............
(c) personal history, including character, conduct, associations and employment
record; and

I really want you to succeed, but that provision does not make it possible for me to say with absolute certainty, that you will be successful in obtaining an extension.

You need to meet the requirement of 276(ii) (C) to qualify for an extension.

I am not sure how Amber envisage you will qualify. She may be best placed to explain that. I am merely stating the rules.

[Vvida]

Would it create a problem to extend under any visa category in particular or all of them?

Tier 2? FLR(LR)? Article 8?

[Amber]

An extension should be ok as the general grounds for refusal doesn't apply. It depends on the offence and it's nature. You've gone with the crown, there is a ~40% change of acquittal if it goes to trial. You'd be better asking the question when you know the outcome.

[Vvida]

An extension should be ok as the general grounds for refusal doesn't apply. It depends on the offence and it's nature. You've gone with the crown, there is a ~40% change of acquittal if it goes to trial. You'd be better asking the question when you know the outcome.

Thanks Amber, you're a star! I pray to God I will win as I should. I will be back to update you but I am worried sick, it's been 6 months.

[Vvida]

I was given a conditional discharge. This is for a fraud by false representation, making a £20 gain.

Would my ILR be automarically rejected due to this?

Will I succeed with a tier 2 extension for 2 years considering I've been 4 years total on tier 2 now?

Would I qualify for FLR(LR) this year as Amber suggested?

This is an extremely difficult time for me. Any help and suggestions are highly appreciated. Thank you.

[Obie]

For the avoidance of doubt, I believe that FLR(LR) is the most appropriate application to fill.

The only concerns i have is to make a bold statement that it is bound to succeed.

You can take comfort that applying for FLR(LR) will mean that you do not fall for refusal under 276B (iii) , which deals with grounds of refusal.


Nevertheless I wish you every success.

[Amber]

What were the conditions?

[Vvida]

I was in a lot of shock and I am unsure if there was a time limit attached with it (it's never just a *conditional discharge* without a clause though is it?) probably 2 years, I will have an official confirmation of it tomorrow.

Does this mean ILR in September is out of the window?

This gave me some hope https://tribunalsdecisions.service.gov. ... 4-ukut-314 but I wouldn't dare not to disclose it when asked if I have a conviction even though it is not a conviction (as they've argued in the link) but it does give you a criminal record.

[manci]

the UKUT case you provided a link for seems to fit your situation and would suggest that you would be justified in answering NO to the question whether you had a criminal conviction. By having been given a conditional discharge you have been found guilty but not convicted. The question on the application form is about conviction, not guilt.

If you answer NO consider sending a covering letter explaining your court appearance and refer to the UKUT case.This would dispose of a possible accusation of dishonesty.

Immigration rule 322(1C)(iv) gives as one of the reasons for refusing ILR applications :

they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.

As a result of the court case you probably have a criminal record but I am unsure if a conditional discharge amounts to an "out of court disposal".

[Vvida]

Immigration rule 322(1C)(iv) gives as one of the reasons for refusing ILR applications :

they have, within the 24 months prior to the date on which the application is decided, been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.


A discharge is not a conviction but it is registered on the criminal record.

I have not admitted of an offence but was found guilty.

A discharge is a non-custodial sentence but it is NOT classed as an out of court disposal.

Out-of-court disposals allow the police to deal quickly and proportionately with less serious, often first-time offending which could more appropriately be resolved without a prosecution at court.

The following disposals are available to the police and Crown Prosecution Service (CPS):

Community Resolutions – adults (18+) and youths
Cannabis Warnings –adults (18+)
Penalty Notices for Disorder – adults (18+)
Youth Cautions – youths (10-17)
Simple Cautions – adults (18+)
Conditional Cautions – adults (18+) and youths (10-17)

I think if I apply in person with a cover letter as advised, I should find out right away if they were to refuse it so I'd not waste time and money on ILR.

I am not sure if I stand a chance as this is arguing on technicalities but it's probably worth a shot.

[Vvida]

This page tells you how to consider an application when an applicant has or has had an
absolute and conditional discharge. PAGE 56

https://www.gov.uk/government/uploads/s ... c1_v21.pdf


Both conditional and absolute discharges form a part of a person's criminal record and count
as a non-custodial sentence for immigration purposes. If the applicant has either of these
within the relevant timeframe, you must:

refuse the application (where mandatory), or

consider refusing the application (where discretionary)


Would in the case of ILR application be mandatory or discretionary?

[Amber]

It is mandatory, ILR will likely be refused unless the conviction was more than two years ago.

[azeem101]

Hi

I am in the similar situation. I have a pending trial in crown court and HO has held my ILR application since June 14. I then decided to vary the application from ILR to Tier 1 General 2nd extension in Jan 15 but they held my extension application as well.

I was of view that granting FLR under Tier 1 shouldn't be a problem as I was not convicted but they holding the decision until my trial is sorted.

So I have ILR application decision pending since Jun 14 although I have varied and they haven't refunded my fee, Now they've also kept my Tier 1 G extension since Jan 15 almost 10 months.

Can they hold the decision on an application for this long?

What options as do I have as I need to change my job and travel?

Any advice much be appreciated.

[Obie]

They are probably thinking you may receive a 12 months sentence at the crown court and this may affect Tier 2.

If you receive a sentence of 12 months, you will be eligible for automatic deportation.

They should at least consider it now, and if found guilty and sentenced to a term of imprisonment , they could revoke it later, rather than living you in limbo.

In UK a person is innocent until proven guilty.