Tier 2 rejected (not refused) and 3C leave

Hello.

This is my case. I did a valid application to extend my visa Tier 2 before it was expired. After two months, I didn't get the biometric letter. The letter that I got said that my application was rejected as invalid because I did not provide biometrics. The HO retained my passport because my visa expired during the 2 months while my applications was on hold.

I understand my 3C Leave ends at the moment in which the rejection letter was served (not when the letter is received by me). In addition to that, Paragraph 39E Immigration Rules saying that I have 14 days after the 3c leaves ends to not be classified as a overstayer.

My question is. If a made a valid application during those 14 days, and the application is completed after the 14 days. What happen then? After the 14 days I'm overstayer, so technically I have no rights to appeal or anything. I did an application using premium service during the 14 days period, but the appointment is after the 14 days period. What happend in this situation?

Any help would be handy.

Regards

johnddd wrote:I understand my 3C Leave ends at the moment in which the rejection letter was served (not when the letter is received by me).

Unfortunately, your understanding is incorrect. For invalid applications, Section 3C isn't even engaged.

Thanks for your reply.

In that case, when is my 3c leaves ended? I had it at some point due to I submit an application before visa expired, but if you said that once the application is invalid, there is no 3c leaves, what do you think is my place in the whole situation?

Regards

No. Unfortunately, you became an overstayer when your leave expired.

Why didn't you complete the biometrics?

I didn't get the biometric letters. The HO said they sent two letters, but they sent them without tracking delivery service, so there is no way to see where the letters were. The first letter I got after my application from the HO was the rejection letter.

Any ideas how to resolve this issue?

Ask them for proof that they sent the initial two letters for the biometrics to the correct address.

I found this in the 3C regulation
"Where the application becomes invalid because of a failure to provide biometrics
the Supreme Court clarified that section 3C leave came to an end at the point the
Home Office serves a notice of invalidity."

That is why I thought the 3C leave ends at the time of the rejection letter

https://www.gov.uk/government/uploads/s ... e-v8_0.pdf

About the proof of the letters, that could be possible if I have the right to appeal or administrative review, but I don't know if I can do that with rejected applications.

Thank you for correcting me!

Thanks for your reply.

No worries. So many articles to try to combine for a particular case. Anyway, what do you think is my case then, if my 3C ended when the letter was served and I did a valid application during the 14 days period, but the appointment for the visa interview will be after the 14 days?

Regards

That may be a problem.

Well, If you know any article or paragraph in which that situation is mentioned, just let me know, I've been digging the HO documents but I cannot find anything about that.

Regards

Unfortunately you do not re engage 3c if you apply in the 14 day period. What you do get is the concession to apply without being treated as an overstayer.

One other point - you are currently not allowed to work as your visa has expired. You can not be on leave either. Your employer should actually terminate you. That then brings the question as to a RLMT to re engage you etc etc.

Thanks for reply

The concession you mentioned is the 14 days of grace to avoid the overstayer status?

Yes. My employer ended my contract as you said. I wasn't sure if the labour market is required in this situations.

Regards

You are an overstayer, but they disregard it for the purposes of making an application within 14 days of the overstay.

The COS is technically invalid as it would have been issued an an existing employer extension. As the COS will not be noted as used it can still be used up to the expiry date. I am guessing you used it to make your second application.
It may go unnoticed it may not. If it gets picked up it will be a refusal as you are in fact a new hire as you have no leave.

Isn't 78D satisfiable?

Hello

Yes, I checked with my sponsor and my COS was still valid and assigned to me in the SMS. The COS is possible to be reused if the application is not refused. My application was rejected, so it is possible (Paragraph 188 Tier 2 Guidance).

As vinny mentioned, the paragraph 78D makes reference to the current leave or last leave granted. And the last granted leave was the same, Tier 2, same job, role, salary and sponsor. So I guess that is going to work in my favor?

However, I'm still concern what happen with my appointment been booked after the 14 days of grace. What happen if that day my second application is rejected or refused again? Will I be deported if I'm out of the 14 days?

Regards

This may be of benefit:

34G wrote:For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E) is made is:
...
(iv) where the application is made via the online application process, the date on which the online application is submitted whether or not a subsequent appointment is made at a Home Office premium service centre.

The Sponsor is no longer employing the individual and should have withdrawn the COS. When the COS was issued it was accurate as it reflected the position at the time. It is no longer accurate and does not reflect the immigration status of the migrant.

A full RLMT is required to issue a new COS regardless of the used unused status of the current COS. If this issue is picked up on there will be a refusal.

Then it's effectively over.

Then the 14-day time frame of 39E is of no practical use to Tier 2 (General) applicants who require at least 28 days for a full RLMT.

However, this line of reasoning does appear to be inconsistent with

78D wrote:( b ) the applicant must have, or have last been granted, entry clearance or leave to remain as:
(i) a Tier 2 (General) Migrant,

If 78D required valid leave, then the "or have last been granted" is redundant.

Moreover, the Home Office's use of an untraceable delivery service for the biometrics enrolment invitations provides no adequate safeguards against failure of delivery. If they had made mistakes (eg similar to 25) or these unrecorded letters got lost in the post, then this doesn't seem fair.

Hello

Thank you guys for your advice. All of it is really useful. 'Vinny' and 'Frontier Mole' know a lot about Home Office regulations. Thank you again.

As you both said, some articles say one thing and other in some particular circumstances clash with other, I guess the final decision in my situation relies on the case worker discretion to judge all the situation. But at least all your suggestions give me some clarity which articles of the law are on my favour and which are not.

Thank you very much, I'll let you know further details that may be in the interest of the forum.

Regards