Tier 1 extension or FLR (FP) please help

marcnath · Post by **marcnath** » Tue May 14, 2019 1:08 pm

Dineshdina123 wrote: ↑
Tue May 14, 2019 7:13 am
Dear all,

I'm confused, because so lawyer say I should apply for settlement on tier 1 visa if you have maintained 2 employees. Because you applied in 2013 Nov and visa was granted in August 2016 to august 2019.

So point is I have legally completed 5 years tier 1 on 18 may 2019 basis on that we can apply for settlement provided I have maintain 2 employees and regarding funds you already prove in the court that funds have invested and utilised for company you provided bank statements, accountant certificate for funds and 3 months p and l accounts, invoices for the company.

But I'm concerned because as previously mentioned I left the company because of partner and he didn't file any returns or director loan on my name, so I'm feeling it will raise issues with genuineness activity again in settlement? Your advice or thought please.

Secondly let say I apply for settlement on August 15, 2019 and they take decisions before my ilr period on 23 Dec 2019( 10 years route ). Can I apply for my tier 1 extension within the 14 days period?
What happen to continue stay status does I'm breaking section 3c here because of refusal and applying fresh tier 1 extension?
Will it be okay for 10 years route or they will refuse my ilr saying my continue has broken when settlement was refused under tier 1 ( 5 years route)?

Your helps and advise are much appreciated.

You have made a mistake in the dates here or you have a thoroughly incompetent lawyer.

If you got your visa in Aug 2016, you only complete 5 years in Aug 2021.

Not sure where the May 2019 date came from ?

Dineshdina123 · Post by **Dineshdina123** » Tue May 14, 2019 2:56 pm

Hi marcnath,

Thanks for your reply.

The point he is making is because home office should have issued visa back in March 2014 because of refusal I could not able to make the business establish.

Applied tier 1 visa in November 2013
Refused in 16 June 2014,
Appeal allowed on August 2014
Again refused on May 2015
Appeal allowed on May 2016
Visa issued from August 2016 to august 2019.

So he say I have already completed 5 years on tier 1 visa from June 2014 to June 2019 and can apply for settlement 28 days before (may 2019).

I'm really confused is there any case law or anyone come across this before.

He is also saying if they refuse we can go for extension within 14 days, but what I'm worried is does that break my 3c for ilr on 10 years route since they refused my application and I'm applying for extension on tier 1.

Kindly all members provide some more information.

Thanks
Dineshdina123

CR001 · Post by **CR001** » Tue May 14, 2019 3:18 pm

What was your visa before you applied for Tier 1 in 2013??

So he say I have already completed 5 years on tier 1 visa from June 2014 to June 2019 and can apply for settlement 28 days before (may 2019).

How have you worked out that you have held a Tier 1 visa for 5 years?? You did not have a Tier 1 visa in 2014.

Dineshdina123 · Post by **Dineshdina123** » Tue May 14, 2019 5:32 pm

Hi CR001,

Thanks for your reply.

Before tier 1 visa I had psw. He is saying on approval date by tribunal 1st time in June 2014 but I'm also confused how he is saying because it was refused again in 2015 and finally received in 2016 August.

Confused.

CR001 · Post by **CR001** » Tue May 14, 2019 5:36 pm

You only hold a tier 1 ent visa when HO issues you with a visa. The tribunal likely asked HO to reconsider and you were then refused again.

Dineshdina123 · Post by **Dineshdina123** » Wed May 15, 2019 10:25 am

Hi all,

Can anyone know there is a rule in immigration like this?

What my soilictor point here is I have been refused on June 2014 and they took nearly 2 years to issue visa from court that is from June 2014 to 15 august 2016 visa granted.

His point is there is a rule in immigration saying if the application is with home office more than 13 months then that period should be counted towards to visa status (tier 1) so I have qualified for settlement in 18 may 2019, 28 days before the tier 1 (June 2014 to June 2019).

He also said if they refuse the settlement application you got 14 days to apply for tier 1 extension and then vary to ilr on 10 years in 23 Dec 2019.

But if we apply tier 1 extension and if they refuse you application for any reason investment, employees etc you got only 14 days but you completed in December ilr which we can't apply earlier.

So overall his point is apply for settlement if refused covered under section 39e, then apply for extension then vary to ilr.

But my only concern is in 10 years will I be safe under section 39e or they refuse saying that period is not included in ilr because of new application?

I'm also trying to locate this immigration point but find it hard.

Thank you all for your support and helping.

CR001 · Post by **CR001** » Wed May 15, 2019 10:32 am

His point is there is a rule in immigration saying if the application is with home office more than 13 months then that period should be counted towards to visa status (tier 1) so I have qualified for settlement in 18 may 2019, 28 days before the tier 1 (June 2014 to June 2019).

Ask him to point out the exact rule he is referring to and post the link for us!!

I don't believe he has your best interests at heart and is likely telling you what you want to hear and charging a fortune for it.

You had no tier 1 visa granted at any time before August 2016, so nothing counts towards the 5 years as you did not hold this status.

jonser · Post by **jonser** » Thu May 16, 2019 1:55 pm

OP
I would be very worried about your solicitor if I were you.

Frontier Mole · Post by **Frontier Mole** » Thu May 16, 2019 10:05 pm

I doubt very much that the so called solicitor is a solicitor or if they are they don’t practice in the immigration field.

I have heard some madness from legal representatives but this is beyond barking mad...

Dineshdina123 · Post by **Dineshdina123** » Thu May 23, 2019 3:57 pm

Dear all,

The point he trying to make or argue is I have already invested the money and spent for the business that the reason they awarded points and I got the visa.

"
If the applicant has already demonstrated they have invested the relevant level of
funds, you must not reassess this. If, however, the applicant is making an
accelerated ILR application and was not awarded points for their investment
previously, the extension requirements above will apply."

So points was awarded saying money already invested and spent for the business, since you have provided director loan, accountant certificate, personal statement money was transferred to business account and various invoice saying money spent for the business.

His point is just need to create 2 employee that is required for settlement remain so far you achieved under tier 1 in initial stage.

But he also say this incase the home office don't accept for settlement then we can apply for tier 1 extension all will lose is application fee if then accept not to worry.

But I can't find any case or detail in forum.

Regards,
Dineshdina123.

Dineshdina123 · Post by **Dineshdina123** » Tue May 28, 2019 1:55 pm

Hi all,

Any guidance or case reference please.

Regards,
Dineshdina123

marcnath · Post by **marcnath** » Tue May 28, 2019 3:11 pm

Dineshdina123 wrote: ↑
Wed May 15, 2019 10:25 am
His point is there is a rule in immigration saying if the application is with home office more than 13 months then that period should be counted towards to visa status (tier 1) so I have qualified for settlement in 18 may 2019, 28 days before the tier 1 (June 2014 to June 2019).

Why don't you ask him for the actual rule number/reference. I haven't come across any such rule.

Dineshdina123 wrote: ↑
Wed May 15, 2019 10:25 am
He also said if they refuse the settlement application you got 14 days to apply for tier 1 extension and then vary to ilr on 10 years in 23 Dec 2019.

But if we apply tier 1 extension and if they refuse you application for any reason investment, employees etc you got only 14 days but you completed in December ilr which we can't apply earlier.

So overall his point is apply for settlement if refused covered under section 39e, then apply for extension then vary to ilr.

But my only concern is in 10 years will I be safe under section 39e or they refuse saying that period is not included in ilr because of new application?

I'm also trying to locate this immigration point but find it hard.

Thank you all for your support and helping.

There appears to be a case law now that shows that 39E will not protect your ILR (LR)

uk-tier-1-entrepreneur-visas/tier-1-ext ... l#p1755271

Dineshdina123 · Post by **Dineshdina123** » Tue May 28, 2019 6:34 pm

Hi marcanth,

I have spoke to him he points out 245 df requirement.

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.
(f) The Secretary of State must be satisfied that:
(i) the applicant has established, taken over or become a director of one or more genuine businesses in the UK, and has genuinely operated that business or businesses while he had leave as a Tier 1 (Entrepreneur) Migrant; and
(ii) the applicant has genuinely invested the money referred to in Table 6 of Appendix A into one or more businesses in the UK to be spent for the purpose of that business or businesses; and
(iii) the applicant genuinely intends to continue operating one or more businesses in the UK.
(g) In making the assessment in (f), the Secretary of State will assess the balance of probabilities. The Secretary of State may take into account the following factors:
(i) the evidence the applicant has submitted;
(ii) the viability and credibility of the source of the money referred to in Table 6 of Appendix A;
(iii) the credibility of the financial accounts of the business or businesses;
(iv) the credibility of the applicant’s business activity in the UK, including when he had leave as a Tier 1 (Entrepreneur) Migrant;
(v) the credibility of the job creation for which the applicant is claiming points in Table 6 of Appendix A;
(vii) if the nature of the business requires mandatory accreditation, registration and/or insurance, whether that accreditation, registration and/or insurance has been obtained; and
(viii) any other relevant information.
(h) The Secretary of State reserves the right to request additional information and evidence to support the assessment in (f), and to refuse the application if the information or evidence is not provided. Any requested documents must be received by the Secretary of State at the address specified in the request within 28 calendar days of the date of the request.
(i) If the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.
(j) The Secretary of State may decide not to carry out the assessment in (f) if the application already falls for refusal on other grounds, but reserves the right to carry out this assessment in any reconsideration of the decision.
(k) The applicant must, unless he provides a reasonable explanation, comply with any request made by the Secretary of State to attend for interview.
(l) The application for indefinite leave to remain must have been made:
(i) before 6 July 2027, if the applicant has ever previously had leave as a Tier 1 (Graduate Entrepreneur) Migrant; or
(ii) before 6 April 2025, in all other cases.

Because as mentioned before I have already spent in business which is provided in the court with all document.

marcnath · Post by **marcnath** » Tue May 28, 2019 8:05 pm

Dineshdina123 wrote: ↑
Tue May 28, 2019 6:34 pm
Hi marcanth,

I have spoke to him he points out 245 df requirement.

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.
(f) The Secretary of State must be satisfied that:
(i) the applicant has established, taken over or become a director of one or more genuine businesses in the UK, and has genuinely operated that business or businesses while he had leave as a Tier 1 (Entrepreneur) Migrant; and
(ii) the applicant has genuinely invested the money referred to in Table 6 of Appendix A into one or more businesses in the UK to be spent for the purpose of that business or businesses; and
(iii) the applicant genuinely intends to continue operating one or more businesses in the UK.
(g) In making the assessment in (f), the Secretary of State will assess the balance of probabilities. The Secretary of State may take into account the following factors:
(i) the evidence the applicant has submitted;
(ii) the viability and credibility of the source of the money referred to in Table 6 of Appendix A;
(iii) the credibility of the financial accounts of the business or businesses;
(iv) the credibility of the applicant’s business activity in the UK, including when he had leave as a Tier 1 (Entrepreneur) Migrant;
(v) the credibility of the job creation for which the applicant is claiming points in Table 6 of Appendix A;
(vii) if the nature of the business requires mandatory accreditation, registration and/or insurance, whether that accreditation, registration and/or insurance has been obtained; and
(viii) any other relevant information.
(h) The Secretary of State reserves the right to request additional information and evidence to support the assessment in (f), and to refuse the application if the information or evidence is not provided. Any requested documents must be received by the Secretary of State at the address specified in the request within 28 calendar days of the date of the request.
(i) If the Secretary of State is not satisfied with the genuineness of the application in relation to a points-scoring requirement in Appendix A, those points will not be awarded.
(j) The Secretary of State may decide not to carry out the assessment in (f) if the application already falls for refusal on other grounds, but reserves the right to carry out this assessment in any reconsideration of the decision.
(k) The applicant must, unless he provides a reasonable explanation, comply with any request made by the Secretary of State to attend for interview.
(l) The application for indefinite leave to remain must have been made:
(i) before 6 July 2027, if the applicant has ever previously had leave as a Tier 1 (Graduate Entrepreneur) Migrant; or
(ii) before 6 April 2025, in all other cases.

Because as mentioned before I have already spent in business which is provided in the court with all document.

Nowhere in this clause does it say that if the application is pending for more than 13 months, it is considered part of visa grant period.

For the investment, it is tough to say. I believe you have a reasonable basis to assume that points were already awarded for investment as you were granted the visa and you had not shown the balance in any account. So, you can file the application by checking the box that points have already been awarded for investment.
But since you did not submit the accounts in the first place, I can't be sure.

hollan · Post by **hollan** » Wed May 29, 2019 11:20 am

Hi,

You have applied for TIER 1 Ent initial visa in Nov 2013 but you got the visa in August 2016 nearly after 3 years , so during these 3 years you were on previous visa category, for example if you applied from PSW to T1 Ent, so during that 3 years time your status was on PSW, you T1 Visa started from August 2016.

if you applied from outside uk as a first application then your T1 Status is from August 2016.

Dineshdina123 · Post by **Dineshdina123** » Thu May 30, 2019 7:54 pm

Hi all,

He is pointing the set (o) application point below."

11M Tier 1 (Entrepreneur) migrant
If you are applying for indefinite leave to remain on completing five years’ continuous stay in
the UK made up of leave as a Tier 1 (Entrepreneur) migrant and leave as a businessperson or
innovator, in addition to the relevant documents in 11A, you must provide the following:
Evidence that you are engaged in business activity at the time of your application and have been
since you were given leave to remain as a Tier 1 (Entrepreneur) migrant. This should include
one of the following documents:"

The document they ask is the date I become a director of the company which is 23 November 2013 or company current appointment report.

Kindly give you suggestion.

Regards

Dineshdina123 · Post by **Dineshdina123** » Wed Jun 05, 2019 6:01 am

Hi all,

Could you please update on the above point?

Regards,
Dineshdina123

zimba · Post by **zimba** » Wed Jun 05, 2019 1:04 pm

It is the current appointment report

Dineshdina123 · Post by **Dineshdina123** » Thu Jun 06, 2019 6:43 am

Hi zimba/all,

Thanks for your reply.

So based on the information the solicitor saying I'm eligible for ilr under set (o) tier 1 since applied in November 2013 but refused on April 2014 and approved on 15 august 2016.

The point is from April 2014 to 15 august 2016 is counted towards tier 1 he is saying.

Let say I apply for set (o) ilr do I get appeal rights or admin review?

Because if I get appeal rights then can I vary my application in 4 months time to ilr under 10 years route?

Regards,
Dineshdina123

CR001 · Post by **CR001** » Thu Jun 06, 2019 7:12 am

You don't qualify for ILR on Set O as has been advised many times now. Your time waitng for approval is irrelevant. Your time for qualifying for ILR starts when the tier 1 ent visa wws granted in August 2016 and not before.

This lawyer is telling you nonsense and if he is charging you, he probably knows he will make lots of money due to your ignorance and lack of knowledge of the rules or your desparation. You stand to lose out here and he is likely telling you only what you WANT to hear.

Where is the official source of information this lawyer is claiming to be fact??

If you apply and are refused, there are no appeal rights for PBS route applications either. You only get an option of Admin Review, which is for when you believe HO has made an error, which in your case won't be and error as you don't qualify for ILR on Set O until August 2021.

Dineshdina321 · Post by **Dineshdina321** » Sat Aug 17, 2019 10:49 am

Dear all,

My apologies for all members, for some reason I could not able to access the old user ID and password. So I have to use new id kindly apologies.

I have finally manage to apply for tier 1 extension on 15 of august 2019 last day of current leave and on the appointment booking it says that I have to give the bio metric before 17 October 2019.

So my immigration advisor said we will book on Monday 19 august 2019 the available slot and then cancel re-book before 17 October 2019 to get more time on 10 years route.

My history as follows:

Visa issued on 25 December 2009 but came to UK on 20 January 2010 tier 4 student visa.
Extended student visa from 14th march 2011 to 10th October 2011.
Applied for psw on 10th October 2011 successful got psw until 28th November 2013.
Applied for tier 1 entrepreneur visa on 28th November 2013.
16 June 2014 refused appeal made on time and successful in court.
Home office again refused with same points on 12 may 2015 appeal made on time and again won in the court.
Finally visa approved on 29 June 2016 and received the bio metric on 15th august 2016 to 15th august 2019.

I complete my 10 years route on 23 December 2019 (28 days before the date 20 Jan 2020).

Now I found a new problem in my 10 years route your information and help is much appreciated.

I found an old file from home office dated 7/7/2014 says invalid application for the tier 1 entrepreneur because for fees increase in 2014 and mentioned my 3c no extend I could not believe myself how this file came from home office with all scanned documents of 2013 November application details and when I checked with soilictor that time he said nothing to do with that as I have got appeal rights so I have to go for appeal the application made on 28th November 2013. I have made the appeal and paid fees on 14/7/2014 to tribunal for the application that has been refused on 16 June 2014.

Later my appeal was successful ( history above) I received my visa for the application I have made on 23 November 2013 with the reference number of appeal.

Now my worry is what is to do with this invalid application in 10 years route.

I'm worried because the date of refused is
16 June 2014 for application made on 23 November 2013
The invalid application says inside 4 July 2014 but the letter dated 7 July 2014
the appeal fees paid to tribunal was 14 July 2014 for the application 23 November 2013.

Kindly provide your input whether I qualify for 10 years route or I just wasted my time. I read previous cases where it says if you have appeal rights you cannot make fresh application.

I'm in the process of getting SAR report but I'm worried of this application no been mentioned by home office when they grant visa for 2013 application or home office igroned this application because I made in time appeal. Really confusing.

Regards,
Dineshdina321.

marcnath · Post by **marcnath** » Sat Aug 17, 2019 2:18 pm

It should not matter since the Tier 1 visa was ultimately granted. Any overstay is therefore ignored.

Dineshdina321 · Post by **Dineshdina321** » Sat Aug 17, 2019 2:56 pm

Hi marcnath,

Thanks for your reply.

Does it mean that home office ignored invalid application when they grant visa because the actual appeal made in time 2013 application and won in court 2016?

Or I have appealed with the 28/14 days period because 2014 lot of rules changes happen.

Because I read few case may be understanding is wrong please correct me. that invalid application mean you clock on 10 years route is broke and you are overstayed and if granted visa you only start fresh from the grant of visa.

Because it very critical for me just 4 months left for 10 years route and if I have broken the 10 years route I left with no choice to leave the country and I'm gutted.

Regards
Dineshdina321.

marcnath · Post by **marcnath** » Sat Aug 17, 2019 3:41 pm

The long residence guidance states:
When considering a long residence application in which a previous OoT appeal has been submitted following:
• an in time application
• an application made no more than 28 days after the previous leave expired and where the application was submitted before 24 November 2016
you should normally use discretion to disregard any break in continuous lawful residence where the appeal is subsequently allowed.

I believe that applies to you.

Dineshdina321 · Post by **Dineshdina321** » Sat Aug 17, 2019 4:17 pm

Hi marcnath,

Thank you so much for the guidelines note.

Is it necessary for me to get SAR report?

Secondly with regards to tier 1 appointment would it be fine if I cancel and re-book? I not sure about this new platform.

I think of positive but worst scenario would be let say I give bio metric on 15 October 2019 and HO make decision before my qualify period for ilr ie 23 December 2019. Will I able to make ilr giving the scenario of admin review etc.

Regards
Dineshdina321

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