Tier-2 to Tier-2 Job Change, Dependents' Visa Curtailed

I (and dependents) had T2 (and PBS dependent) leave till September 2016.

In July 2015 I changed jobs and got my new Tier-2, I didn't apply for dependents' visa since the advice on this forum and on the visa helpline was that they can continue on their existing visa/leave till it expires.

However, we have last week received curtailment letter for the dependents which reads,

"You were granted leave as a Dependent Partner of a Tier 2 Migrant (person "P") from 11 September 2013 to 14 September 2016 but the main P has been granted further leave without any linked dependents. P's leave as Tier 2 Migrants has ceased to be valid as such. Further to that, you were not granted any leave to remain in your own right"

What are my options now?

iahsan wrote:I (and dependents) had T2 (and PBS dependent) leave till September 2016.

In July 2015 I changed jobs and got my new Tier-2, I didn't apply for dependents' visa since the advice on this forum and on the visa helpline was that they can continue on their existing visa/leave till it expires.

However, we have last week received curtailment letter for the dependents which reads,

"You were granted leave as a Dependent Partner of a Tier 2 Migrant (person "P") from 11 September 2013 to 14 September 2016 but the main P has been granted further leave without any linked dependents. P's leave as Tier 2 Migrants has ceased to be valid as such. Further to that, you were not granted any leave to remain in your own right"

What are my options now?

That's baffling. I had the same understanding through reading posts in this forum . I guess your only option is to apply afresh for your dependents based on your new leave.

It makes no sense.

P still has leave as a PBS Migrant. P's leave as a PBS Migrant did not cease to be valid.

The category of leave as a PBS dependant is what links the PBS dependant to the PBS Migrant.

Ask for a reconsideration.

Thanks vinny.

Would you be kind enough to guide me for the reconsideration request. Following is what I have written so far, I can PM you a copy of the letter I have received as well, if you want.

-----------------------------------------------------------
MAN Team X – Tier 4 Curtailment (This was the address on the letter)
UK Visas and Immigration
PO Box 99
Manchester
M90 3WW

Subject: Leave curtailment of Tier-2 PBS dependents with incorrect information.

Dear Sir/Madam XXXXX,

I (XXX XXX, Tier-2 Main Applicant, Ref: XXXXXX) have received a curtailment of leave letter (for my dependents) from your desk on October 21, 2015 (dated October 07, 2015, copy attached). However, I fail to understand the reasoning and facts used in the explanation (which contradict my previous correspondence with UKVI) so I hereby right to you to seek more information.

Your letter opens with a statement that claims that Mrs. X Xxxx (and two more dependents) were granted leave from 11-09-2013 to 14-09-2015, which is not correct since they were granted leave till 14-09-2016 (copies of their BRP attached). Your letter then mentions a term ‘linked dependents’ (para 2, line 3) with implied emphasis; may I request more information on the term since neither the Tier-2 application form has any mentioning of ‘linked dependents’ nor can I find this term in any of the policy guidance documents for Tier-2 or PBS dependents. What is a ‘linked dependent’, how do I specify/inform/mention my ‘linked dependents’?

Secondly, your letter (para 5, line 3; highlighted in Annex-A) claims that the leave of person ‘P’, which is myself in this context, “is being or has been curtailed”. This isn’t correct as well, my leave neither has been, nor was ever curtailed, so I don’t understand the context of a decision made on a curtailment that never happened.

Lastly, I switched my Tier-2 sponsor in July 2015. Before switching (twice on phone with the UKVI helpline) and on the day of switching (at the premium service centre) I have been, on record, informed by the UKVI staff that my dependents don’t need to reapply till the expiry of their current leave on September 14, 2016.

I, therefore, most humbly request you to reconsider the decision or provide me with more information and insight into the reasoning behind this decision, since I was, on three occasions, advised otherwise by UKVI staff. I also request you to send me further information regarding the claims made in your correspondence (leave duration, linked dependents and curtailment of P’s leave), which to the best of my knowledge (and according to the BRPs of my dependents) are not the facts.

Yours faithfully
----------------------------------------------------------------------

I believe that Jane Richards and Wayne Fairweather were logical.

Moreover, you are correct. If your the period of your current leave wasn't shorter than before, then your leave was not curtailed!

It may be helpful if you could also post the curtailment letter with your personal details removed.

Do also read Jane Richards' and Wayne Fairweather's responses.

Thanks vinny,

Do you think it is any useful to refer to the 2 links in reconsideration request?

Yes, my new leave is till August 2018.

Here is the link to the first page of the letter, the other 2 have the standard information, no appeal, no review, must leave etc etc.

https://app.box.com/s/9zzz36n32nllvf7pqm6foqw55xjruqx0

iahsan wrote:Do you think it is any useful to refer to the 2 links in reconsideration request?

Yes, because they give excellent reasons why your dependants' curtailments are unjustifiable.

See also an analysis of a case where the PBS Migrant was granted ILR and the dependants' leave was curtailed.

In your case, 319C(b)(i) would be applicable instead of 319C(b)(iii).

Your partner's leave as a PBS dependant under 319C is already in line with your Further leave to remain as a Relevant Points Based System Migrant.

Else, she wouldn't be able to extend after you have Further or Indefinite leave to remain as a relevant PBS Migrant under 319C, nor subsequently apply for SET(O) under 319E.

319C(b)(i) and 319C(h) clearly permits your partner to extend after your Further leave as a relevant PBS Migrant. Although possible, there's no requirement in 319C for the PBS partner to extend at the same time when the PBS Migrant applies for Further leave as Relevant PBS Migrant, etc., etc.

It's also alarming to see caseworkers mistake a grant of further or indefinite leave to the PBS Migrant as a sign that the PBS Migrant's leave had been curtailed! It's contrary to the basic definition of curtailment. Caseworkers should be better trained.

Thanks vinny,

So I compiled and sent a reconsideration request based on the template I posted earlier and with added references to the decisions/guidelines you had sent.

However, reviewing recent reconsideration requests on this forum I think the chances of any reply coming through are slim to none.

In which case, the other thread you linked mentioned 'Pre Action Protocol'. Can I ask you if I will need to get a lawyer to do that or is that something I can do myself? Any resource that mentions the procedure in non-legal layman terms?

Some details are in the following link:

vinny wrote:See also JR.

Obie would probably know more about this.

Thanks vinny,

I can see (signed for) that the reconsideration request has been received, don't think I will get any reply.

I have been through the resources you referred, I think I can file for the pre-action myself BUT I think it won't be taken seriously unless there is a legal representative on it, more on the lines of UKVI calling bluff I guess.

This had happened to a client of mine.

The woman was switching employers in Feb and came to me asking if the husband needs to file any applications. I said no he doesn't.

In July, he received a similar curtailment -- well, it initially mistakenly said Tier 4, then there was a SAR, PAP and MP letters etc etc, but when it all crystallized ultimately the following sequence of events emerged (details of which I did not know, because I have not been engaged to deal with either his or her previous applications).

The husband enters UK on in July 2014 on a certification of dependants' maintenance made by the wife's Tier 2 sponsor.
The wife subsequently has some falling out with the employer around Christmas, but ther eis some confusing over leaving date.
9th February -- employer notified HO that she no longer works there, triggering -- as I understand - a flag to action a curtailment case for both her and dependant, which of course in reality had been taken up much later.
11th February -- wife finally receives CoS assigned by new employer and files for change of employment, which she receives.

In April the curtailment case raised on Feb 9th finally reaches a curtailment caseworker, and in CID notes you can see their musings. They figure that wife has new status received after grounds for curtailment arose, but husband does not. So he gets curtailed.

Now, since it took us 2 months to figure out what is even going on, the couple were by then intent on suing -- but since she was changing employers again now, and they were making a joint application this time before end of curtailment he ultimately received, I advised against it.

On the surface it looked like a mistake -- and some sort of a new campaign to get dependants to file unneeded applications and pay outrageous HO fees. His status should have survived her change of employer.

But.

In this particular situation, it appears that the reason curtailment ever emerged was that there was a gap between the notification by the previous employer that she no longer works there, and the new application filed with a new CoS.

So I figured perhaps it would not happen when there was not such a gap? Was there such a gap in topic starter's case?

One of the additional reasons I advised the couple that theirs would be a bad test case for a dependant's leave survival of principal's change of employment, was that his maintenance was originally certified by the former employer, not the sponsoring main migrant. I felt that this would eventually be pointed out by someone and may play a part in the outcome, even though there is no particular point in the rules that would distinguish this situation. But since costs of suing and simply filing a new application, which would completely resolve the matter, were comparable I advised for the latter (with a heavy heart, as I like to put HO in its place).

However if we see a pattern that suggests that all dependants are being curtailed when main migrant changed employers, regardless of whether there is a gap, then it is certainly illegal blackmail attempt to extort new application fees and people should sue.

I think that you made the right call because of the gap.

A friend had a similar problem with his client. Wife and UK-born children didn't apply at the same time as husband's change of employment. Wife's and children's leave were curtailed. Fortunately, they were all able to apply for ILR before the end of the curtailment period. So, they didn't challenge the curtailment.

What do you think of the ongoing saga where the PBS Migrant was granted ILR as a relevant PBS Migrant?

Thanks sagareva,

Yes there is probably a gap which explains the curtailment letters in context of your message.

What it doesn't explain is that it is not mentioned anywhere in the case worker guidelines and what is the legal significance of the sentence 'new status received after grounds for curtailment arose', At a given time I either have a leave or don't have a leave (with a start and end date), what is the case when there is a gap and no curtailment is issued?

I thought that as long as no curtailment was issued on my case and before it was considered I had a new leave, my leave has been intact throughout, isn't that the case?

On the case worker guidelines https://www.gov.uk/government/uploads/s ... 4_0EXT.pdf, curtailment with gap fall under the discretionary category and curtailment without gaps falls under mandatory category so going by that everybody switching jobs should have dependents' leaves curtailed.

Any way, if this gap is the reason of curtailment why doesn't the letter clearly mentions that? Why it mentions things like 'since the leave of P is being or has been curtailed', 'P's leave doesn't exist as such' none of which is true? And I am not a lawyer but these are very vague terms. Why am I, the main applicant, not informed anything about it, if it is being done?

And even if that's true, how is that possible? How can they curtail a leave NOW which doesn't even exist anymore? The case worker guidelines only mention one situation of curtailing PBS dependents' (pg-31) and that is when the main applicant leave is curtailed, my leave was NEVER curtailed so how does that gap fits into the situation.

iahsan wrote:Any way, if this gap is the reason of curtailment why doesn't the letter clearly mentions that? Why it mentions things like 'since the leave of P is being or has been curtailed', 'P's leave doesn't exist as such' none of which is true? And I am not a lawyer but these are very vague terms.

And even if that's true, how is that possible? How can they curtail a leave NOW which doesn't even exist anymore? The case worker guidelines only mention one situation of curtailing PBS dependents' (pg-31) and that is when the main applicant leave is curtailed, my leave was NEVER curtailed so how does that gap fits into the situation.

323 wrote:(vi) if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed; or

That's a reason why it's incorrect. P's leave was never curtailed. P being granted further or indefinite leave that increases P's existing period of leave directly contradicts with the definition and process of curtailment. So, to say that 323(vi) is applicable is irrational.

323 wrote:(ii) if he ceases to meet the requirements of the Rules under which his leave to enter or remain was granted; or

Moreover, there has been no divorce. If 319D(b) is still satisfied, then I don't see how it's rational for them to assert that 323(ii) is applicable as well. The caseworkers' instructions give warnings to the caseworkers against making assertions of 323(ii) being automatically applicable.

Thanks vinny, you literally help me breathe

If there is a reason for the curtailment I want the letter to specifically mention that or else as much as I have read the guidelines (for applicants and case workers) it seems the 'gap' is not the issue. What happens probably is that cases with gaps come in to preview/consideration automatically and the others don't, in which case I would want to fight this villainous attitude of UKVI.

sagareva, I have dropped you a PM, you seem to be a lawyer, I want to discuss specifics of the case.

My contention is, gap or no-gap, my previous leave was never curtailed and it shouldn't be possible to curtail my previous leave on October 07 (after on July 06 I got my new/current leave, which ends my previous leave on the same day any way).

If UKVI didn't process any curtailment related to my previous leave in time, it is not my concern and shouldn't affect me. They can't backdate logic for decisions or can they?

If the PBS dependents are linked to my status then their leaves should be intact on October 07 since I have a valid leave on Oct 07 and everyday before/after that irrespective of any gap since I was never sent a curtailment/cancellation notification.

If PBS dependents are 'linked' (as the letter suggests) to a main applicant's specific leave, then dependent leaves must be curtailed for each and every PBS migrant acquiring new leave.

Case workers guidelines don't permit the scenarios that "if you come across a migrant who has a curtailment due but by the time you decide to do it he has got a new leave then have fun with all applicants related to him", or do they, not a lawyer?

I have just realised the core sentence of the letter is copy pasted from 323(vii),

if he was granted his current period of leave as the dependent of a person (“P”) and P’s leave to enter or remain is being, or has been, curtailed, or

So I need to find out if I was never served any curtailment, how valid is this claim (if based on the gap theory).

vinny,

On page 49 of the case worker guidelines they give an example with following scenario,

Example of when you may consider curtailing a Tier 2 migrant’s leave
A Tier 2 migrant resigns from their employment when they:
 have twelve months leave remaining
 have not submitted any further applications
 are aged over 18, but
 have a dependent child aged under 18 in the UK.

and then advise case workers and I quote

In this case, curtailment is not mandatory because an exception applies because of the dependent child. Curtailment may still be appropriate, but you must consider the use of discretion when you make a decision.

Now my dependents had less than 12 months on their leave remaining (Curtailed 07 Oct, 2015; Original expiry Sep 14, 2016) and my dependents include 2 children under 18, aged 1 and 3, born in UK, so shouldn't discretion have been used in this case even IF by some unknown hidden logic curtailment was correct? or I am missing something?

On reflection, I don't think a gap would have made a difference. If, at the time of the dependant"s curtailment, the main PBS Migrant's leave to enter or remain was not being, nor has been, curtailed, then 323(vi) was not applicable.

sagareva wrote:his maintenance was originally certified by the former employer, not the sponsoring main migrant

I don't think that this would make any difference. The maintenance was required and satisfied when making a previous application under 319C. It's not a condition of leave under 319D(b). Therefore, it's not required after leave is granted. Therefore, the original maintenance shouldn't be an issue for 323(ii).

I still think that sagareva still made the right call, not because the curtailment was correct, but more because there were less hassle and costs in making new applications.

Unfortunately, this may encourage insufficiently trained caseworkers to continue making unlawful curtailments.

I would say it depends vinny.

I have 3 dependents and a 3yr T2 visa so I am looking at (654x3)applications + (600x3)NHS + (100)biometrics => 4K approx.

On top of that, I will need to apply for their visas again in 5 months time when I become eligible for ILR. I don't make that kind of money and that set of applications I am told is even more expensive.

So is the JR process even expensive than 4K?

If I go down that road, do I need 3xJR applications, one for each dependent, or 1xJR?

I think that you have a strong case as the curtailment was irrational, contrary to the rules and Caseworkers' instructions. The category of their leave as PBS dependants links them to you.

In five months time, after you are granted ILR, your UK born children (if aged under 10) would be entitled to register as British citizens, irrespective any overstaying.

That's an interesting perspective.

Yes they are UK born.
Yes they are under 10 and will be in 5 months time.

If they stay put for the next 5 months (with or without JR but no further application) and don't travel overseas, they would still be entitled to register as British citizens?

Yes.

If I file a JR application against a leave curtailment decision and the curtailed end of leave date is passed before a decision is reached then what happens if I lose the appeal,

What will be my status on the day of the decision?

For example,

The curtailment letter says leave expires on 10 Dec, 2015.
I file a JR on 30 Nov, 2015.

The decision is reached on 29 Feb, 2016 OR the JR application is rejected on 29 Feb, 2016.
If it is accepted for hearing but the decision is NOT in my favor.

What is my status on 01 March, 2016.

You will become an overstayer on 11-Dec-2015 and will remain so until the decision to curtail leave is overturned by the judge hearing the JR case. If the decision is not in your favour you'll continue to remain an overstayer (since 11-Dec-2015).

Filing a JR does not extend leave to remain unlike in-time immigration appeals (under section 3c). Filing a JR at the time of extant leave doesn't stop you from becoming overstayer when the leave expires, and it does not make an overstayer's stay legal.