Tier 1 (General) Refused - Appeal or Fresh Application??

Hi guys,

After 9 months with an application for a Tier 1 (General) Extension, mixing Self-Employment and employee salaries, I received a letter from the HO telling me that my application was refused as my accountant from abroad is not registered in the International Federation of Accountants, therefore my Self-Employment earnings (gained abroad whilst in the UK) were not valid and no points were awarded (not even for the salaries earned in the UK as an employee).

For this reason, I would like to know my next steps:

Option 1: Appeal, as I could demonstrate that my accountant is part of the Accountants Association of that country and part of the IFAC, which will complete the points needed on top of the salaries earned in the UK (which were not even recognized).

Option 2: Submit New Application, as currently I will be able to be awarded the points needed taking into account the 12 months within the 15 previous months of the new application, just using the UK employee earnings.

Option 3: Appeal & Submit New Application, as I just have 10 working days to submit an appeal, I would like to know if I need to appeal and then submit Fresh Application.

As I have read on internet, that the appeal will give me an extension for my current visa (as per 3C.2.b). If I do not appeal, how much time do I have to make a new application? Will I be considered an overstayer?

I would really appreciate any help.

Many thanks and regards,

David

if your accountant on the IFAC list, the one to which the link is provided in the guidance?

is this the only point of rejection?

why weren't points awarded for UK earnings?

clearly something is going on here -- why the hell did it take them 9 months if all they were saying was that the accountant is not on the list?? they could have told you that in 2 weeks.

if the answer to the first two questions above is yes, then i suggest appeal - firstly, HO should not be rewarded for erroneous decision making by people just walking away. secondly, their decision making is rather random, there is no guarantee that next time you will do better, and not have to wait another 9 months becaue something else will be overlooked..

Option 3 is impossible.

Thanks for your replies so far. I am really dissapointed with the decision after 9 months, which took so long and made some mistakes.

Sagareva - Yes, my accountant is member of the National Accountancy Association of Venezuela and this association certified his letter, which later on was translated by a public translator.

The IAFAC has a list of current members (Associations of Accountants from different countries), the Venezuelan Assocation was one of the founding members in 1977. Currently, if you put on the search box, it appears as "former member" (Do you recon that this is the reason for refusal?)

I still have no clue why the HO did not award any points for my employee salary earned in the UK. They mentioned in the letter that I earned certain amount in the UK (less than 20k), but they took just the net salary (shown on the bank statements) instead of the gross salary shown on the payslips.

Vinny - as you said that it is impossible, I would appreciate if you could please elaborate a little bit more. Is it based on this?

3.2. Applications lodged during leave under sections 3C and 3D
While either section 3C or 3D leave is in force, the applicant is not entitled to make any more applications for variation of leave to enter or remain....If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal. As a result, there may be little difference in practice between a fresh application and a request to vary an existing application.

However, could I submit a fresh application during the 10 working days granted to submit an appeal which is triggered by 3C. 2 (b)an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought (this is the 10 working days to submit an appeal), while the appellant is in the United Kingdom against the decision on the application for variation.

In this sense, I believe that I will not be an overstayer whilst submitting a fresh application as I will be covered with the period to bring an appeal, but will submit a fresh application instead of an appeal. Please correct me if I am wrong.

I also found this information on a HO Guidance September 2013:

The 28 day period of overstaying is calculated from the latest of:
 the last day of their latest grant of leave to enter or remain
 the end of any extension of leave they were given under sections 3C or 3D of the Immigration Act 1971, or
 the date the applicant is deemed to have received a written notice of invalidity, in line with paragraph 34C or 34CA of the Immigration Rules, relating to an in-time application for leave to remain.

Migrant’s status following submission of an application within 28 days of overstaying
The submission of an application within the 28 day period of overstaying does not mean the migrant’s previous leave is either re-instated or extended. Therefore applicants without valid leave at the point they submit their application continue to be an overstayer throughout the period their application is pending.

On the other hand, if I apply after the 10 working days for submitting an appeal (3C) but within the 28 days, can they deport me as overstayer? or they could refuse the application for overstaying?

What about the period of 5 years to obtain the ILR under the Tier 1 General, will it be cut after the 28 days as I will not be covered by the 3C?

Sorry for asking too many questions, but the idea is to apply for the ILR in the long term and right now I could be awarded the needed points with a fresh application.

I would really appreciate any help, of course I will accept recommendations for any specialized barrister registered in the OISC.

Many thanks and regards,

David

vinny wrote:Option 3 is impossible.

UPDATE __ SINCE POSTING THIS I HAVE DONE FURTHER RESEARCH AND PARTIALLY CHANGED MY MIND. SEE ALSO POST BELOW

Look, what happened to your original leave?

has it expired? more than 28 days ago?

if yes then vinny is right, no fresh application . no fresh application during 3c leave once decision on a pending application has been made. only appeal. that's my take.

although now i wonder if indeed 28 days past rejection in fact extend your time to submit further fresh application (provided you are not appealing). now you confused me..

however what you quote relates to variation of grounds during the time your original application, that gave you 3c leave, was still pending. and to use that, you need to vary the grounds -- that is, if you applied for tier 1 extension but since married a UK citizen, and now want a different immigration benefit.

Many of us here believe that it should be possible in the same manner to vary a tier 1 extension application into an ILR application, but I do not know if anyone tried it.

You however propose a nonsense, to vary an application which is no longer pending -- therefore cannot be varied -- into an application of exactly teh same kind, hence no new grounds. when they say "new grounds" they do not mean new justification for the extension (eg new sets of payslips or different evidence), they mean application of a different type based on a different immigration benefit.

but anyway, even though your 3c leave continued through appeal, no new applcication and no variation.

Your 5 years towards ILR continue to run thorough 3C and 3d leave, so long as you eventually prevail in appeals.

therefore no new application unless you still have tier 1 leave valid, or it has expired less than 28 days ago.

as far as "former member", can you look up exactly when did it cease to be a member, and if you can prove it was a member at the time of your application, you can adduce that on the appeal stage, there is no provision to provide new documents on appeals stage, but you are allowed to adduce evidence to show that your original documents were valid.

If it was not a member at the time of your application, not so good.

as far as your uk income, I am still confused. they are supposed to take gross income into account, but I am not sure under which points scheme you are applying, so maybe whatever was left of just UK income, was simply not enough for lowest points award treshold?

did you claim points for UK experience?

PS barristers do not have to register with OISC. and OISC advisors are usually not barristers.

listen my friend, you know what I think?
i think maybe you are right.

maybe you CAN make a fresh application, if you allow your 3C leave LAPSE and then wait 28 days?

for instance in ILR caseworking instruction it says

Breaks in the period of lawful residence may only be disregarded in the following
circumstances:

 applications made on or after 9 July 2012, where the application for indefinite leave to
remain (ILR) is made no more than 28 days after the expiry of the applicant’s previous
leave
 any periods disregarded in granting leave to remain on or after 1 October 2012 where
they occur during the qualifying period for ILR.

The 28 day period of overstaying is calculated from the latest of the:

 end of the last period of leave to enter or remain granted
 end of any extension of leave under sections 3C or 3D of the Immigration Act 1971, or
 point a migrant is deemed to have received a written notice of invalidity, in line with
paragraph 34C or 34CA of the Immigration Rules, in relation to an in-time application
for leave to remain

so that sort of means that you can apply within 28 days AFTER your latest day of leave under 3c

now I see why vinnie said that BOTH aren't possible,

BOTH arent possible because

3c4 says (4)A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

see? you cannot make new application while you are under 3c leave

if you appeal, your 3c leave continues

in order to make the new application you need to let your 3c leave lapse by NOT filing an appeal and apply within 28 days after it LAPSES

right, vinny?

Many thanks Sagareva, for explaining in depth the issue.

As you explained, one option is not compatible with the other option (agreeing with what vinny said too).

Sorry for not giving more details from the beginning, I was on a student visa until January 2010 and switched to the Tier 1 General, which was granted on 04/04/2010 (expiry date: 04/04/2013)

I applied for the extension on the 31/01/2013, with similar documents and evidence used for the first application.

I received the notification of refusal on 23/11/2013 (sent on the 20th), saying that the accountant does not appear on the IFAC member's list (19 g iii). The accountant is affiliated to an Association that was founder member of the IFAC, but is still recognised by it. The association left the IFAC as it did not pay membership fees.

So, does it mean that any applicant from a country where the accountant association is not in the current IFAC's list will be rejected? That is not fair as not all countries are part of the IFAC.

I agree with you on the 28 days period for fresh application, the questions would be: would I be able to continue working? Can they deport me or remove me whilst waiting the decision? Could they refuse as I would be overstayer?

Many thanks

"does it mean that any applicant from a country where the accountant association is not in the current IFAC's list will be rejected? That is not fair as not all countries are part of the IFAC. " -- I suppose it does mean that, because Immigration rules now defer to guidance and this is what guidance says. Not fair -- yes, a lot of it is not fair. If this was already in the guidance when you filed your application, you could have seen that and sought a suitably qualified accountant. I suppose. I am not very big on accounting.

WHEN did that association leave IFAC for not paying fees is relevant, in relation to your application date, I guess.

"would I be able to continue working?" -- no, not in the fresh application route. you only have right to work while your 3c leave continues.

"Can they deport me or remove me whilst waiting the decision?" -- theoretically yes, but in practice unlikely, you will always have a defense against removal

"Could they refuse as I would be overstayer?" - no, as far as I understand, not just because of that, since current rules allow application within 28 days after status expired, and your status expires the moment your 3c lapses.

Many thanks Sagareva.

I decided to appeal the decision taken by the HO.

The think that bugs me is that the decision contains 2 in the same letter: Refusal and Removal.

So, even if I am able to submit a fresh application and have the evidence of UK earnings for the last 12 months, which will give me the points needed, they could enforce the removal decision whilst the new application is being decided?

It is a high risk I guess and the issue of not been able to work whilst they decide the fresh application (sitting on my hands) for God knows how long is not enticing.

Will keep you posted.

Thanks and regards,

David

It is theoretically possible but HIGHLY unlikely that they will seek to remove you, if you file a new application within 28 days of lapse of your 3c status

more over, generally if your earnings are straightforward now and you are not subject to the new test, you have all likelihood of it being decided quickly

as far as appeal, it continues your right to work, but may ultimately not resolve in your favour, if your accountant organization was not on that list at the time of application.

you need to see if that list is mentioned at all in immigration rules (not guidance), or if immigration rule specifically refer to HO application giudance as a document that will establish what will be accepted (sometimes they started doing that after Pankina). also, are there ANY accountants in venezuela listed in that list of theirs? i suppose it may be unreasonable to have expected you to find one if they do not exist.

if you dont have a valid argument why they made a mistake, ultimately new application may provide a better solution for you

Hi guys,

Just to update the forum on my case as it could help others.

I decided to appeal the Tier 1 General refusal decision at the beginning of December 2013.

The date for the hearing is on the first week of July (so, 7 months waiting time).

Looking at different options as I could switch to the Tier 2 General with my employer, but undecided if withdraw the appeal and apply within the 28 days in person or wait for the decision of the appeal and if rejected, then apply within the 28 days in person.

Could someone please share their views on the personal application as the documents (mainly passport) will be with the IAT?

Many thanks in advance.

Hi ADVA

I am in a similar situation. Recieved refusal letter today (Tier-1 extension) on the basis that i claimed JSA. But it was my wife who claimed JSA and we have a joint account. But i'm quiet interested in Tier-2. Keep me posted regarding the same.

Cheers