can we apply for variation of leave after the appeal allowed

My question is that from the gurus here is can we apply for variation of leave i.e switching category from T1E TO TIER 2 general after appeal is allowed from FTT...if yes then how long we should wait before applying after receiving the court decision so that we make sure that ukba does not challenge the decision in upper tribunal???
Please remember that my last leave to remain is expired and I am on section 3c of immigration rules
Your replies will be appreciated.

You cannot vary an application that has already been completed..Your Appeal is against the decision which has already been made on your application.

Section 3C(4) of the 1971 Act prevents the applicant from making a new application for a variation of leave while they have 3C leave. This means if an applicant with 3C leave submits a new application, you can automatically consider this to be invalid.

@ kashifaariz, it depend on the appeal decision. If your appeal was allowed and the judge rule that your application remain pending/outstanding to be decided, then yes you can VARY the application at that stage. This decision make your application to be outstanding as the initial decision was quash by a judge thereby making your application to not been decided yet.

If the judge decision is for HO to re-consider your application, then you wont be able to VARY the application as decision has been made and only waiting a reconsideration of the initial decision.

And if appeal was allowed for visa issuance, then you will have to wait for your visa before submitting another application for a different category.

Thanks olasunkamni for the reply.the judge decision says the following...
The decision to refuse to vary leave is not in accordance with the law and this appeal is allowed to the limited extent that the decision remains outstanding before the respondent to make a lawful decision
The decision to remove the appelant by way of directions under section 47 is null and void.
Can I vary an application in the above situation...please help

kashifaariz wrote:Thanks olasunkamni for the reply.the judge decision says the following...
The decision to refuse to vary leave is not in accordance with the law and this appeal is allowed to the limited extent that the decision remains outstanding before the respondent to make a lawful decision
The decision to remove the appelant by way of directions under section 47 is null and void.
Can I vary an application in the above situation...please help

I think yes, but you should consult lawyers for professional advice.

Olasunkanmi wrote:@ kashifaariz, it depend on the appeal decision. If your appeal was allowed and the judge rule that your application remain pending/outstanding to be decided, then yes you can VARY the application at that stage. This decision make your application to be outstanding as the initial decision was quash by a judge thereby making your application to not been decided yet.

If the judge decision is for HO to re-consider your application, then you wont be able to VARY the application as decision has been made and only waiting a reconsideration of the initial decision.

And if appeal was allowed for visa issuance, then you will have to wait for your visa before submitting another application for a different category.

I am sorry @olasukanmi but you're giving a wrong advice here..When a Tribunal Judge allows an appeal doesn't guarantee issuance of a VISA! (According to Immigration rules) The judge has only said Home office was wrong to refuse the application! To my understanding you are claiming if a judge allows an appeal, this make a decision outstanding? Where in the immigration rule is this stated? Don't complicate or confuse the OP..

Section 3c is 3c period! You're under that and as long as you visa has not been issued after the appeal you cannot vary it.

@ Choc-Ice, appeal decisions are of different category and some are for visa issuance.

Olasunkanmi wrote:@ Choc-Ice, appeal decisions are of different category and some are for visa issuance.

No matter what a judge instructs in a determination,there's always an avenue to appeal the decision by either the appellant or respondent until all appeal rights are exhausted! So my point is still section 3c remains 3c when an appeal as been brought you cannot vary an application irrespective of any appeal determination (According to the Immigrations rules).

@choc_ice...I hv read ur replies....
Section 3c(4) does not allow U to vary...u R right to this extent.... but...
Section 3c(5) of immigration rules allows U to vary application....
@olasunkamni..thanks bro for ur reply too...I hv already consulted my barrister and he said the same as U told me and we applied for variation already.... was just been curious to know...
Also I hv asked the question in my other post.... that my wife's case reference no and her witness statement was included in my appeal bundle... and although she wasn't given the right of appeal but she was the part of my appeal as a witness... is it still 50/50 chance for her to get the visa if I get tier 2 general???

@ Choc-Ice,

''I am sorry @olasukanmi but you're giving a wrong advice here..When a Tribunal Judge allows an appeal doesn't guarantee issuance of a VISA! (According to Immigration rules) The judge has only said Home office was wrong to refuse the application! To my understanding you are claiming if a judge allows an appeal, this make a decision outstanding? Where in the immigration rule is this stated? Don't complicate or confuse the OP..''

Before you make comment on other people's advice, it will be nice of you to re-read their post carefully rather than making assumptions.

In my post I specifically state that judges decisions are of different category;

---- Some are for visa issuance
---- some are for reconsideration and
---- some are to quash HO initial decision and thereby make such applications outstanding/pending for a fresh decision (this is the only scenerio that an applicant can VARY such applications).


I didnt state that ''if a judge allows an appeal, this make a decision outstanding?''


I also notice that you have quoted the same policy in one of your post as shown below;

''HO receives an allowed determination and the Immigration Judge has directed that LTR is issued.

There is a statutory duty under Section 87(2) of the 2002 Act for the caseworker to comply with directions, unless the determination is subject to further appeal.

Caseworker has no power to re-refuse an application if an immigration judge has 'directed issue' of LTR. HO must issue the LTR in accordance with the immigration rules.''

http://www.immigrationboards.com/uk-tie ... 70-20.html

Try to always re-read your own post very well before jumping into conclusion.

Hi Guys.......need your advice

Even i got my appeal allowed at FTT. the exact wordings are
"I allow the appeal to the extent mentioned above and remit this matter back to the respondent as the decision made by her was not in accordance with the law".

do you think I can Vary my application at this point to Tier 2 ?

Many Thanks

ab_1820 wrote:Hi Guys.......need your advice

Even i got my appeal allowed at FTT. the exact wordings are
"I allow the appeal to the extent mentioned above and remit this matter back to the respondent as the decision made by her was not in accordance with the law".

do you think I can Vary my application at this point to Tier 2 ?

Many Thanks

I am also in same situation upper tribunal decision says
The making of the decision of ftt did involved the making of an error on a point of law
I set aside the decision
I remit the matter to secretery of state to apply her appropriate evidential flexibility policy and to consider the application under paragraph 245aa of immigration rules

I have sent application to vary my tier 1 application to set lr today
Any idea is that right or not?
Many thanks

Hi Guys,
I was thinking to vary my Tier1 to Ilr soon, my barrister said I can, but I should check with him again as I am in doubt after reading the above posts. Is there any forum member out there who has varied their leave successfully.


Applied 6th Sept 2012
Refused 22nd March 2013(No contract, no advertisement)
Hearing 8th Jan 2014
Appeal allowed 6th March 2014

Hi,


I was on PSW and got refused for Tier 1 and now appeal allowed. If i send the application to vary to Tier 2...will i need to pass labour market test....or will i be exempt from it becauase my appeal was allowed.......experts please reply.
Thanks

By the way my solicitor has told me that I can Vary but he is not sure about labour market test....Looking forward to hear from experts

Hi Guys... just to update everyone that me and my wife both have got our visas for Tier 2 General and dependent for Tier 2 general today... its a great news for our families.... we applied for Tier 1 Entrepreneur in January 2013...refused in June 2013....appeal allowed in FTT on 27th January 2014 and then applied for variation to Tier 2 General on 13th Feb 2014.
I just to want to update for others to help and yes we can apply for variation of leave if judge allowed ur appeal and said the ukba's decision was unlawful but I paid the full fee for Tier 2 general...... thanks everyone for their help and support.... it was 14 months long journey but in the end the result was fruitful.... may God bless U all

Choc-Ice wrote:You cannot vary an application that has already been completed..Your Appeal is against the decision which has already been made on your application.

Section 3C(4) of the 1971 Act prevents the applicant from making a new application for a variation of leave while they have 3C leave. This means if an applicant with 3C leave submits a new application, you can automatically consider this to be invalid.

@Choc-Ice...please correct urself and your record... because I have successfully varied by visa application from Tier 1 Entrepreneur to Tier 2 general even after my Tier 1 Entrepreneur application was refused but I won my appeal at FTT..before I get Tier 1 Entrepreneur visa or home office ask for additional documents...I successfully applied for tier 2 general and got visa for me and my wife.... only thing is that I paid a full fee for my new application....

congratulations and all the best

regards

Thanks rehan and best of luck to everyone here

I need an urgent advice . i recently appealed against Tier 1 application which was in my favour but the judge has ask the HO to request further information in other for them to consider the visa. however my barrister as advised that i can vary the application to spouse which i have varied but HO is asking me about the Tier 1 documents but not acknowledging the spouse variation after 7 weeks please any kindly help.

lac wrote:I need an urgent advice . i recently appealed against Tier 1 application which was in my favour but the judge has ask the HO to request further information in other for them to consider the visa. however my barrister as advised that i can vary the application to spouse which i have varied but HO is asking me about the Tier 1 documents but not acknowledging the spouse variation after 7 weeks please any kindly help.

Dear lac all you need to do is write a letter stating that you have already varied your application to spouse and you do not wish to carry on with your Tier 1 application and post/email it to the relevant case worker, telling you from my personal experience
Best regards

Hi there,

I applied for tier 1 entrepreneur visa in Jan 2014. Visa refused in Aug 2014 alleging deception. Appeal against HO decision, heard in Nov 2014 and appeal was allowed in Dec 2014 saying not in accordance of immigration rules remitted back to security offices asking to determine the application on other criteria of application to meet the requirement for issuance if visa.

I completed my 10 year in Dec 2014 so varied the application to ILR in Jan 2015 before decision was made by HO. I received acknowledgement and a further letter that application involves HR issued so service time do not apply. No Biometric letter received and fee not deducted from account.

In March 2015 I receive my Tier 1 entrepreneur visa with passport and all supporting docs returned !!! I had varied the application in Jan 2015!! In the same correspondence they returned all supporting docs sent with Tier 1 and ILR application except application forms. No Explanation given

We wrote to HO in March 2015 asking the status of ILR application but as usual they never reply

I called HO and they said there is an outstanding application and our letter passed to case handler.

Does anyone have any idea or experience in this type of scenario? Could you help please???