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URGENT!Solicitor negligence and judicial review

Only for UK Tier 1 (Entrepreneur) points system

Moderators: Casa, JAJ, ca.funke, Amber, Zimba, vinny, Obie, EUsmileWEallsmile, batleykhan, geriatrix, John, ChetanOjha, archigabe, push

shade
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URGENT!Solicitor negligence and judicial review

Post by shade » Tue Feb 23, 2016 8:27 pm

First of all thank you to anyone who would be willing to read the whole story. Our company is an established 2 year old IT solutions specialist organisation. We started off with modest revenue and now has an estimated quarterly turnover of roughly £95,000 . Our investment in the UK is way above the £50,000 required for a Tier 1 entrepreneur visa.

Our initial Tier 1 entrepreneur team application for 2 was made in April 2014 switching from Tier 1 PSW via which was rejected by Home Office. Appeal was rejected by lower tribunal and permission to go to upper tribunal was not granted either leaving us with no further options. We received Upper tribunal decision on May 11 2015

11/05/2015 Appeal rights exhausted - We instructed solicitors to make a fresh Tier 1 application. They decided to apply for SET LR within 28 days because there was no time to gather all required documents for a fresh Tier 1 application. They advised us that the current application can be varied while it’s under consideration by Home Office. In the meantime we could gather as many evidence as possible in support of our Tier 1 entrepreneur application

05/06/2015 £3480 transferred to solicitors for SETLR application
06/06/2015 Joint application submitted for person 1 and person 2 under LTR Outside of Immigration rules
18/06/2015 Acknowledgement received from Home office
30/06/2015 Biometrics notification letter for SETLR application received
10/08/2015 We prepared all necessary documentation required for tier 1 entrepreneur visa including letter from Chartered accountant. We provided every possible evidence such as contracts, proof of trading etc. The whole application bundle weighs 12 KG each due to the amount of invoices, trade related documentation etc. Documentation was physically submitted before solicitors and advised them to vary our application immediately before Home Office makes a decision on our SET LR application. We had £35,000 cash in bank (joint personal account) since June 2015 and over £24,000 already invested into business.
10/08/2015 £4400 was transferred to solicitors for Tier 1 Entrepreneur application
10/08/2015 In addition to the above fees we paid £1200 NHS Health surcharge

According to solicitors they submitted our Tier 1 entrepreneur application on August 10 however it is not the case according to the most recent letter we received from Home Office which states person 1 tier 1 application was made in 20 Oct and person 2 tier 1 application was made in 10 Nov . Not only that they didn’t send our application, they also lied to us that our application has been submitted to Home Office. We requested acknowledgement letter from Home Office but this was never provided to us. We have all the evidence such as emails and phone calls we made to them during this time. We noticed that NHS surcharge has been charged by Home Office which was the only evidence to believe our application is with Home Office

Solicitors advised us to vary our Tier 1 application for a second time because they believe that money available to invest must be in our account for more than 90 consecutive days. We only had it since June and therefore varying our application once again in September will strengthen the chances of success.

We prepared new accounts and obtained fresh supporting evidences. All throughout this time we were under the impression that Home Office is still considering our Tier 1 entrepreneur visa that was thought to be submitted on August 10 2015.

20/10/2015 solicitors advised us that they varied both our applications to Tier 1 entrepreneur “for a second” time still trying to give us an impression that there is a pending Tier 1 application varied from SET LR. They did not charge fees for this application and told us that they have funds from our previous payments which raised serious doubts regarding their claims about an existing Tier 1 entrepreneur application. We sent repeated emails for evidence relating to all our applications but no information was provided at all

In the Month of November solicitors contacted us to advise that SET LR application for person 1 was rejected and application bundle was returned to us. It was not clear why they returned bundle (person 1) even though he applied to vary SET LR application in August (according to them) and in October as well. They told us that this will be returned to Home Office in order to support his existing application. They also said that this could be a Home Office error caused due to a miscommunication between their departments. There were no further updates from them until December.

In the last week of December solicitors contacted us to inform that Tier 1 entrepreneur application for both has been refused. Infact it was refused on dec 14 and 9 respectively We requested them to email a copy of decision letter but they haven’t provided this document till date despite numerous phone calls and emails.

No accurate dates were provided, they simply tried to slip from conversations regarding letters from HO as if there is something to cover up. By this time it was clear that they never varied our application in August at all.

On the conversation we had on 29/12/2015 solicitors advised us that they are preparing an administrative review because of the following reasons
1) Tier 1 application for person 2 was rejected because HO alleges he overstayed more than 28 days after rejection of SET LR application. solicitors says they never received any letters from Home Office about this application.

2) Person 1 application was clearly varied before Home Office concluded his SET LR application

In the case of person 1 it’s clear that he didn’t overstay as stated in the Home Office letter because he did apply for a visa within 28 days from receiving upper tribunal decision. Later on he successfully varied his application on October 20 2015 before his SET LR was concluded. When Home Office rejected his Tier 1 visa on 14 December 2015 he had the right for administrative review. solicitors did not inform this decision until 29 December and they didn’t submit administrative review either. On 8 January Home Office sent instructions for removal which is .Solicitors submitted a pre action protocol at the last minute. Even on this pre action protocol they din't mention a word about his right to apply for leave to remain within 28 days of decision from upper tribunal. They simply sent a letter saying Home Office made an error without making any valid arguments.

In Person 2 case they maintained their position and advised Home Office on pre action protocol that they did not receive decision letter Home Office claim to have sent on 16th September.

Now it is absolutely clear that the solicitors deliberately hide information from us , lied about our application, took wrong actions and never told us anything about what's going on with our application. Below are a few key points to note
1) 1) Neither of our SET LR application was varied on august 10

2) 2) Although our solicitors said there is no information about person 2 SET LR application Home Office rejected it on 10th September. This letter was returned to Home Office but they resent it on 16th September which was delivered and signed by someone from the solicitor's local delivery office. Please note that they denied this and still maintains their argument that no such document is delivered to them . They said Royal mail deliver a lot of items together and only a single signature is obtained for all items. They believe that my document could be lost from the bundle and not delivered. In order to validate this argument they complained to Royal who advised that they are unable to confirm whether this item is actually delivered to the correct address as it only shows "delivered from local delivery office". They also confirmed that it is possible that this letter may be lost when delivering posts bundle rather than individually. now solicitors wants to contact Home Office requesting to serve the decision again in order to legalise person 2 stay in the UK

3) Although solicitors says both our applications for Tier 1 was submitted for a second time on October 20, Home Office says person 2 application was received on 10 November.

4) 4) It has to be assumed that only two applications were actually made contrary to what solicitors told us. However NHS surcharge has been paid three times, first on June 6 for SET LR, then on August 10 and finally for the most recent Tier 1 entrepreneur visa.


07/01/2015 Home office notified about person 2 liability to be detained and removed as it failed to invoke the AR process. But no communication was made regarding this.
08/01/2015 Home office notified about the person 1 liability to be detained and removed as it failed to invoke the AR process. But no communication was made regarding this.
08/01/2015 Pre Action Protocol was submitted. Home Office received person 1 PAP on 15th January and person 2 PAP on 28th January
01/02/2016 Home office responded to person 2 PAP on February 1st. Solicitors emailed this to us on February 18th
06/02/2016 £1200 Health Surcharge was deducted from our account
09/02/2016 Home office responded to person 1 PAP on February 9th 13.44 via Fax. Solicitors emailed us regarding this on February 18th

Of all the above incidents the only things that they told us until 18/02/2015 was
Acknowledgement of SET LR application for both
Biometric enrolment invitation on two different occasions for both
refusal of person 1 SET LR in November and refusal of both applicant’s Tier 1 visa in December.
finally HO response to pre action protocol

No other information has been communicated with us despite numerous phone calls, emails etc asking for proof of our past applications. Right now we do not know how to proceed further as they failed to do anything in time. Is there a way to apply for judicial review under this exceptional circumstance? We have invested nearly £100,000 in UK so far and have clients across Europe and United States. Our business is legitimate and paid thousands of pounds in taxes to HMRC. Our business is growing considerably and has trade agreements with over 10 UK distributors all of which are multi million pound businesses. We are also bidding for public sector contracts with most recent one being an IBM server infrastructure for local government in East Midlands, a project worth £90,000 . None of this could be achieved if our visa is refused. It is incredibly disappointing that this was a consequence of lack of responsibility by an organisation we trusted. We like to know the prospect of success if we proceed to Judicial review considering the merits of our application, protection of our business and investment and immigration history in the UK.

person 2 has legally lived in the UK for nearly 7 years and person 1 has lived here legally for over 5 years. We have never knowingly overstayed in this country. Had there been proper communication about the status of our application we wouldn’t have allowed this to happen. We have done everything we can to make sure our immigration status in the UK is legal . The fact that our application status was deliberately misrepresented and hidden from us made us victims with severe consequences. We will end up in a very difficult situation socially, financially and mentally. Our prospects of making an out of country application is also diminished due to the fact that Home Office now consider us as overstayers. Will the court of law provide any protection for us in this situation?

noajthan
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Re: URGENT!Solicitor negligence and judicial review

Post by noajthan » Tue Feb 23, 2016 8:36 pm

Reading on cellphone I had to skip some of this case.

If OISC-registered advisor, contact OISC.

If UK solicitor, contact Law Society:
http://www.lawsociety.org.uk/for-the-pu ... solicitor/
All that is gold does not glitter; Not all those who wander are lost. E&OE.

shade
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Re: URGENT!Solicitor negligence and judicial review

Post by shade » Tue Feb 23, 2016 9:11 pm

thank you noajthan . Yes we will contact law society regarding this.i like to know if it is going to help our Judicial review in any manner. At the end of the day our aim is to get visa for our legitimate business. How is this going to be affect our right to live in the UK. HO didn't consider our application at all and what we are trying to do is let them consider our application based on the grounds that we never overstayed our visa

noajthan
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Re: URGENT!Solicitor negligence and judicial review

Post by noajthan » Tue Feb 23, 2016 9:16 pm

shade wrote:thank you noajthan . Yes we will contact law society regarding this.i like to know if it is going to help our Judicial review in any manner. At the end of the day our aim is to get visa for our legitimate business. How is this going to be affect our right to live in the UK. HO didn't consider our application at all and what we are trying to do is let them consider our application based on the grounds that we never overstayed our visa
Not sure HO will make allowance for a crooked/incompetent adviser as applicants are ultimately responsible for their applications.

You may be able to seek redress in law though.
(Legal-minded members may elaborate on this).

Most unfortunate position to be left in.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

shade
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Re: URGENT!Solicitor negligence and judicial review

Post by shade » Tue Feb 23, 2016 10:44 pm

Thank you noajthan. Much appreciated .The post was way too big for anyone to read. I just like to summarise the whole situation to see if there is any hope for us. It would be appreciated if one of you moderators could out this post on top and remove the other.

Tier 1 entrepreneur team application refused and gone for appeal to lower and upper tribunal
May 22-Upper tribunal refused permission to appeal
June 6-Fresh application SET LR submitted
September 16 -Person 2 SET LR refused (Solicitor says letter never received. Royal mail tracking shows delivered from local delivery office and signed by someone. But solicitors says they receive post in bundle and one signature would mean everything in the lot will show as delivered)
October 20-Person 1 Tier 1 entrepreneur application submitted
November 10-Person 2 tier 1 entrepreneur application submitted
December 9-Person 2 Tier 1 entrepreneur application refused (automatic refusal due to overstay)
December 14-person 1Tier 1 entrepreneur application refused (automatic refusal due to overstay)
Solicitors did notify us or sent admin review instead sent a pre action protocol but HO stood by their decision. Now considering going for judicial review based on the below grounds

Person 1 never overstayed as he successfully varied before HO decided SET LR
Person 2 never overstayed because HO decision not served. Royal mail escalations team confirmed in writing that they have no evidence of this item delivered to the addressee as its too late to investigate either.

Does anyone think we will get justice? There was a series of serious negligence on solicitor's side but it's really too big to write here. Many thanks everyone

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Re: URGENT!Solicitor negligence and judicial review

Post by Zimba » Wed Feb 24, 2016 10:39 am

This is an unfortunate case. There are more and more cases of solicitor's negligence coming up on this forum these days and it seems many applicants feel insecure about submitting their own applications, so they leave it in the hands of people who are usually quite incompetent at what they do. To be honest, you do not need a solicitor in most of the straightforward immigration cases as what you are required to send and expect are quite clear.
You did not mention why your initial Tier 1 application was refused in April 2014 and why did you appeal that decision ??
Advice is given based on my personal research and experience only. Do NOT contact me via private message for immigration advice

shade
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Re: URGENT!Solicitor negligence and judicial review

Post by shade » Wed Feb 24, 2016 1:12 pm

Hello zimba88,
Thanks for your reply. The firm we approached is quite popular with some high profile cases but certainly not one of the top firms. The initial tier 1 was refused because HO thought our business is not "credible and viable" . Although we scored points on all attributes we didn't score enough on the non point scoring area. At the time we haven't invested anything and just had access to 50k . Our business was also different.It was specialty apparel manufacture using patented fabrics. We provided a very thorough market research, product samples and our projected sales but they dismissed the case as "dream of two young students which can hardly be materialized without any experience in this area of business" (we were on tier 1 psw not student visa) . They also slammed us for our "extravagent claims that we are going to compete with some of the major high street brands" . They also doubted legitimacy of the business because we had no pending patent.

shade
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Re: URGENT!Solicitor negligence and judicial review

Post by shade » Wed Feb 24, 2016 1:53 pm

I am thinking of consulting a barrister directly rather than a solictor. Does anyone think its wise? I have heard about Duncan Lewis from this forum. Anyone with similar situation had any experience with them especially with Judicial review? Thank you

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Re: URGENT!Solicitor negligence and judicial review

Post by yhm75 » Fri Feb 26, 2016 11:26 pm

hi

which is my understanding u cant vary application two times may be I m wrong

but this is very serious how that solicitor first advice u to LR application its cost u lot

that's solicitor is totally crap

go and take good advice from good solicitor or barrister

but sorry for that if they submit vary application late then u will be overstay and this case is very low chances but u will try .solicitor leave u a death end

complain about that solicitor and give name for other people

shade
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Overstay and Judicial review

Post by shade » Fri Feb 26, 2016 11:50 pm

I am in a very difficult situation.Any help advise would be much appreciated
22/05/15-Upper tribunal refused permission to appeal
06/06/15-submitted SET LR (only been here for 7 years)
10/11/15-Varied to Tier 1 entrepreneur
09/12/15- Tier 1 entrepreneur visa refused because HO says SET LR was rejected on SEP 16 and Tier 1 application was made 28 days after refusal of SET LR but solicitors saying they never received no HO decision. They requested to re serve this decision using evidence from Royal mail
In the mean time I have instructed Duncan Lewis to submit a JR within 90 days from refusal of Tier 1 decision. My question is whether HO detain me and remove while going through JR process? Does submitting JR prevent detention? If they are considering detention, are they going to conduct raid at our home within a few days?

I got call from capita and I told them that I am going for JR within 90 days.They said they will update my records with this information. Another issue is that my Indian passport expired while its with HO. Since its over an year now I have cannot renew the passport but have to apply for a fresh one. How can I do this and will I still be subjected to re-entry ban if i do not chose voluntary return until my new passport is ready?

In the meantime if HO decide to detain and remove, will I still get a chance to use voluntary return scheme so that I will be able to re apply after 1 year? It would be extremely grateful if someone could shed some light as I can't discuss anything with my solicitors until Monday when they are open again. Thank you all

shade
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Re: URGENT!Solicitor negligence and judicial review

Post by shade » Fri Feb 26, 2016 11:59 pm

Thank you yhm75 . Yes this time I am going through Solicitor Name removed by moderator or a barrister from Solicitor company name removed by moderator. They offered to do everything possible to justify our grounds. For example if had any clue that my SET LR has been refused there is no reason why I would overstay because I am not doing anything other than looking after my business which already invested over 140K in the UK. I could have gone home and reapplied under 200k route without overstaying. Also Royal mail certified in writing that there is no evidence to confirm that this particular letter HO has been delivered. Our solicitors have requested HO to re serve decision so that I will no longer be an overstayer.

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Re: URGENT!Solicitor negligence and judicial review

Post by cancerian » Sat Feb 27, 2016 1:50 am

a very sad and disappointing story to read!
To be honest with you I dont want to disappoint you at all. But at this stage nevertheless you are a genuine entrepreneur, u have invested you money, paying tax (only and only my point of view and I am not expert at all) UKVI willl never consider your application and if you go and ask a barrister about a judicial review that how much chances of any judicial review they will say about 10 to 20%. I personally asked one of solicitor during my case he said there are 90% chances of refusal of judicial review. SO i would not adivse you to go on judicial review.
Secondly UKVI are treating us the immigrants with heavy handedness, and with callous to all of immigrants no matter how genuine you are. I dont think at any stage you will get leave to remain, Your solicitor has doomed you guys. I think you are left with no choice apart from going back. May I know the name of your solicitors and where are you based?
A personal and genuine advise to you would be keep making money via your business and go back to your home country apply for Entry Clearance you are already making good money why you are suffering.
On the other hand these solicitors dont give a F_______ to any one (A personal experience), they will be keep in making thousand stories, thats in your hands you need to teach them a good lesson, hire a professional lawyer and sue them for professional negligence, may I ask if you have professional indemnity insurance you can seek damages from the solicitors.
Thats all I have to say.

cancerian
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Re: URGENT!Solicitor negligence and judicial review

Post by cancerian » Sat Feb 27, 2016 1:56 am

Personally I think you should invest some amount of time and moeny in researching the credibility of admin review overall (if you want to go no matter what) and particularly in your case.

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Re: URGENT!Solicitor negligence and judicial review

Post by alex87 » Sat Feb 27, 2016 1:59 am

I don't know how JR works, but I would imagine it will take a long time to sort out this problem in-country. I agree with the people who have suggested that you apply for entry clearance from your home country. All the initial objections raised by HO have been disproved by your successful business, and you can back your entry clearance application with proof of business acumen and success as an entrepreneur.

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Re: URGENT!Solicitor negligence and judicial review

Post by noajthan » Sat Feb 27, 2016 3:21 am

This, at face value, appears a most unfortunate case.

However, members are reminded that negative feedback or any attempt at 'naming and shaming' in the public forum is a violation of Board T&Cs (click). Re. point 7.

Kindlly refrain from such behaviour, however tempting it may be, as it will result in action being taken against the user.

This is to protect the Board from any legal consequences of such an action by a member.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: URGENT!Solicitor negligence and judicial review

Post by shade » Sun Feb 28, 2016 8:10 am

Thank you cancerian and Alex87. Yes we could have chosen to exit and apply for entry clearance as long as we had time to do it. But according to HO decision person 1 overstayed 130 days even though he applied within 28 days of Upper tribunal letter and the other person overstayed more than 28 days (although decision letter was never served). This means we will have a re entry ban of 1-2 years. The money we already invested will be a complete waste because we cannot claim it under 200k route if investment is older than 12 months. We are totally doomed. We are certainly suing the firm responsible for this. Barristers said there is good hope in person 1's case cause HO is clearly wrong here. There are no other reasons for not considering his application. In the second person's case all hope is on HO re serving decision.

Dear moderators. I noticed the warning. The names of solicitor firms i wrote is actually the one's who are currently dealing with my case and not the old(dodgy) ones. Just want to know if someone has any reviews about our newly instructed solicitors. I want to reassure you that the old solicitors who actually caused trouble won't be "named and shamed" here. Thank you

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Re: URGENT!Solicitor negligence and judicial review

Post by noajthan » Sun Feb 28, 2016 12:09 pm

shade wrote:...

Dear moderators. I noticed the warning. The names of solicitor firms i wrote is actually the one's who are currently dealing with my case and not the old(dodgy) ones. Just want to know if someone has any reviews about our newly instructed solicitors. I want to reassure you that the old solicitors who actually caused trouble won't be "named and shamed" here. Thank you
Well-noted.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

shade
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Tier 1 ent team application refused and Judicial review

Post by shade » Mon Nov 14, 2016 6:36 pm

I made a tier 1 entrepreneur team application in 2014 which was refused and all appeal rights exhausted in June 2015.Reason was viability and credibility because we relied on 3rd party funds and business was in the budding stage. Within 28 days our solicitors made a SET LR application in order to make our stay legal while we work on a fresh Tier 1 ent application under 50K route. By this time we already established our business in the UK and invested more than the required 50K plus nearly £28k cash in bank as well. Unfortunately solicitors failed to vary my application before HO made a decision on my SET LR application (this is disputed and I will explain it in detail in the next para). The other team member's application was successfully varied but HO refused his application as well. We went for Judicial review and HO decided to reconsider the other person's application which is now being processed. My appeal on papers were rejected and I renewed for oral hearing. The date is 19 December.

The argument for Judicial review is that my solicitors never received refusal letter for SET LR form HO. They provided a sworn statement/declaration confirming that this was not delivered. According to HO it was returned to them once but they resent it and tracking shows signed by our solicitor's receptionist. Solicitors rejected this saying they receive lot of mail as a bundle and only provide one signature for all which means this item was not present it the bundle. Tracking only shows delivered from local delivery office which means it is not clear whether this particular letter was scanned on premise while delivering letters in bulk. We complained to Royal mail who said there is a slight possibility that this item was not in the bundle but due to the time that has passed they can no longer investige this matter. We have escalated it to Post RS who and now waiting for a response from Royal mail but we may not come to a conclusion before hearing date. My barrister says there is merit on this case and heart of argument is quoted below

"The Respondent relies in particular upon the assertion that deemed service could be relied upon, notwithstanding the amendment of the relevant provisions in Immigration Notices) Regulations 2003 SI 2003/658 (‘the Regulations’) by the Immigration (Notices) Amendment Regulations 2014 SI 2014/2768, as from 6 November 2014. That amendment removed the provision for deemed receipt of immigration decisions served within the United Kingdom. The Applicant relies upon this. It is his case that no deemed receipt is applicable."

The reson to renew oral hearing is because previous judge did not acknowledge anything we provided in the summary grounds which itself is a procedural error. My leave to remain has already expired before the JR which means if appeal is not allowed I have to return home and make an out of country application. But then the issue is I may have to face a reentry ban due to overstay even though we had no clue HO made a decision on my SET LR application before we varied it to Tier 1 Ent. What would be the best thing to do if my appeal is rejected? Is further submissions an option especially if HO grant LTR for the other applicant which is currently being considered? Is there anything I can do to avoid re entry ban and make a fresh application out of country? Are there no Humans rights grounds in this case because the whole issue is going to affect the business we built up in the UK. We spent nearly 25K in legal fees and application fees so far from 2014. I don't know who to blame here, Royal mail for failing to confirm letter is lost in post, Solicitors for lying they never received the letter or HO for not accepting sworn statement from solicitors that they never received my decision. Any help or advise would be much appreciated.

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Re: Tier 1 ent team application refused and Judicial review

Post by CR001 » Mon Nov 14, 2016 7:38 pm

Are you sure it was Set(LR)? Set(LR) is for indefinite leave to remain based on 10 years long residence :?:
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Re: Tier 1 ent team application refused and Judicial review

Post by shade » Mon Nov 14, 2016 8:15 pm

Hello CR001 , Yes it was Set LR . Solicitors knew we don't qualify but we needed more than 28 days to prepare an application bundle for fresh Tier 1 ent. So they simply made SET LR application to extend section 3c/3d and vary to Tier 1 ent before HO make a decision. Unfortunately they delayed it (while lying to us they already varied our application) until November 2015. HO decided my SET LR on September 2015 but solicitors says they never received this letter. So we are challenging that our application to vary in November 2015 should be considered because notice has not been served.

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