Thanks zimba88, that is what I think, again, thank you to guide me with detailed policy. I have been waiting for almost one and half year for my fresh extension application after the first one was refused due to absent of FPS to claim job creation.Instead of keeping wait, I think I should submit my ILR application under tier 1 entrepreneur 5 year route, and this ILR application will be variation of my previous application (fresh Tier 1 entrepreneur extension application ).
"Date of application: application to vary
Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, 3C leave. For further information see: Leave extended by section 3C (and leave extended by section 3D in transitional cases).
However, for PBS applications, where a variation application is made in accordance with paragraph 34E, then, for the purposes of assessment against the rules, the date on which the variation is made should be treated as the date of the application."
I have been wait for one and half year for my fresh extension application and still have no clue when the decision will be made. Recently, HO requested my to sent new passport as my old passport expired on 2017. Is that a sign that they start to look at my case? Should I wait for the outcome of the extension application or submit ILR application as variation application to my extension application? As I have been trapped into this virtual prison since I submitted my first extension application on March 2016 till now, I don't really know which is the best option for me...
zimba88 wrote: ↑Sun Feb 11, 2018 7:46 pm
There is NO doubt that you are no longer protected under section 3C and you are an overstayer.
However a specific reading of the rules under paragraphs paragraph 245DF(e) and 39E seems to make it possible to vary the pending extension application to ILR even as an overstayer as any
current period of overstaying will be disregarded.
245DF. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a) DELETED
(b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(c) The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A.
(d) The applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(e) The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.
The date of the ILR application (upon variation of the previous leave) will be assumed to be the same as the date of the extension application. Thus the ILR application was made within the timeframe set under paragraph 39E (within 14 days of section 3C coming to an end) and therefore such current period of overstaying must be disregarded. I might be wrong on this but I do not see how this cannot work as per current rules
