ILR Refused, letter not received now facing removal

[pharoh74]

My wife's ILR )accelerated route, 10 jobs) was refused however refusal letter never reached the lawyer's office and hence we did not know why was it refused and even worse the administrative review window has passed. We now have been issued with removal notice.
My lawyer is trying to contact the home office to exceptionally re-issue the refusal letter on the ground that it was not received (tracking number showed "no information available") but I want to consult a second lawyer on my options. Any recommendations for a lawyer with good reputation in challenging HO decisions?

[moongesture]

1) Was the address given at your application (for representative / your personal) was complete?

2)Have you received the Bio Metric & acknowledgement at same address previously?

[pharoh74]

Yes the address was correct (and we received the second letter no problem).
My lawyer contacted the home office and the business help desk did provide the tracking number and acknowledged that it does not show up as delivered. They mentioned they made the team aware of the issue.
For the BRP enrolment we actually had a similar situation whereby the original letter did not arrive but the second one did.

[moongesture]

Not sure if a telephone confirmation could be considered or used as an evidence in order to regain the right of admin review or 3c. Your lawyer should right to home office and describe the circumstances with proof for not been in receipt of specific communication i.e. refusal notice etc, this may initiate exceptional circumstances consideration process.

Here I am in doubt that if HO is not aware of any "un-deliver or return post" and previously communications had been received then the outcome of such request will make any difference.

[zimba]

You need to follow this up with UKVI and first manage to figure out why the visa was refused. Be sure to ask them to give you the postal reference so you can get a confirmation from post that the letter was indeed not delivered. With that you can hopefully apply for AR or even a fresh application again under the exceptional circumstances rule.

[seasky]

Was this before extension? As such once you figure out what the reason for refusal was consider application for normal extension jot accelerated ILR.

Can you share how you reached 10 employees (10 jobs or less over multiple years?)

[pharoh74]

We received a tracking number from the home office that is invalid and the business help line acknowledge it is invalid though there is not post return in their system.
It was rejected because only 5 employments lasted for a year or longer but I/the lawyer believe that we fall under transitional guidance which allows aggregation of hours (basically you need to show 300 hours x 52 weeks) - they accepted the investment, and the registration as director in time.
In all cases, had the refusal letter reached us, we could have switched to extension in the worst case.
The problem is the letter never arrived according to the tracking number they provided us. The onus of proof should be on them now and the lawyer is chasing them to re-issue the letter with current date so we basically reset the clock but given this is the HO , I am not very hopeful.
I think I should go down the legal route and apply for JR

[pharoh74]

HO is simply a joke of an administration; in addition to delivery failure the following also happened:

- BRP enrolment letter also was never received - only the second notice arrived
- In the refusal letter, they got the application date wrong ( 13 Nov 2013 ) 2 1/2 years ago !!!!
- I was applying for extension but naturally got refused; in my refusal letter they mention also that I submitted a fraudulent english language test and I am a bad character - First, english language is not a requirement for extension for dependant, second based on first, I did not send anglish language test results in the first place!!

To say this is third world country level of competence would give the HO too much credit.

[zimba]

Can you clarify how the jobs were created ?? Transitional arrangements apply to ILR applications as well but according to the rules, anything created beyond 30 hours a week is ignored.
Also did you submit TOEIC English test during your initial grant or entry clearance ??

[helpingperson]

Please provide more information regarding your jobs creation. How many jobs you created, their duration, and how many hours per week you claimed?

Were you under £200k category?

[seasky]

How do u know reasons for refusal/wrong date if u didn't get the letter?

[pharoh74]

My lawyer through the help of a senior manager at the HO managed to get a copy of the original refusal from the system so now I have that.
Yes, 200k route
All hours more than 30/week were properly capped - even then we had the equivalent of 14 full time employments but only 5 lasted more than 12 months continuously - the aggregation of the others (mainly waiting staff) with weekly hours capped at 30 make up the equivalent of 9 further full time employment.
The officer clearly did not take transitional arrangement into consideration when making a decision

again, in the worst case, had this letter arrived , we could have switched to an extension in time and saved ourselves this nonsense. Home office is till not responding whether they will re-issue the letter or not.

[zimba]

Today the new policy guide is out and HO clarified the job creation criteria very well.
Unfortunately the transitional arrangement does NOT apply to accelerated ILR BUT it is applied to 5 year settlement ILR applications for anyone who entered the route before 6 April 2014. So HO made the correct decision on your application (not getting the letter on time is a different issue obviously)

171. The transitional arrangement does not apply to accelerated settlement applications where you are applying on the basis of creating 10 jobs. The arrangement was introduced to ensure consistency between the Immigration Rules and published guidance for extension applications, and does not apply to applications for accelerated settlement

Source: https://www.gov.uk/government/uploads/s ... 4_2016.pdf

You also did not confirm if you submitted TOEIC English test during your initial grant or entry clearance ??

[pharoh74]

No English test needed - degree taught in English and qualification accepted.

We applied on Nov 16 and based on the guidance in effect at the time it clearly state that the same rules that applied to extension applies for accelerated route - shouldn't that be the rules applied to us?

[pharoh74]

It clearly states on the cover that the guidance you posted applies to applications made on or after April 6 so this should not be applicable in our case.

[zimba]

We applied on Nov 16 and based on the guidance in effect at the time it clearly state that the same rules that applied to extension applies for accelerated route - shouldn't that be the rules applied to us?

This is no such a thing as guidance in effect. You technically have to abide by the Immigration Rules 6A and Appendix A. The guide is just for your information and has no legal standing.

It clearly states on the cover that the guidance you posted applies to applications made on or after April 6 so this should not be applicable in our case.

HO clarified that Accelerated route in there to reward successful entrepreneurs who create significant number of jobs, that is at least 10 full time jobs each lasting for at least for 12 months (however a job can be completed by multiple employees)

[confused90]

According to the December 2015 guidance, which can be found at https://www.gov.uk/government/uploads/s ... _0_EXT.pdf


Page 80, last paragraph states;

Accelerated settlement
If applying under accelerated ILR the applicant must demonstrate that they have created a total of 10 full time positions for at least 10 people. The criteria and requirements to evidence the 10 full-time positions are the same as for an extension application.

Hence, transitional arrangement does apply to the accelerated ILR and can be argued upon the same.

[helpingperson]

According to the December 2015 guidance, which can be found at https://www.gov.uk/government/uploads/s ... _0_EXT.pdf


Page 80, last paragraph states;

Accelerated settlement
If applying under accelerated ILR the applicant must demonstrate that they have created a total of 10 full time positions for at least 10 people. The criteria and requirements to evidence the 10 full-time positions are the same as for an extension application.

Hence, transitional arrangement does apply to the accelerated ILR and can be argued upon the same.

Confused90:

This is perfect and spot on. Any refusals against their own guidance should be challenged and UK Courts historically have decided against Home Office decisions.

They can not change their guidance/rules over night and expect applicants to meet those requirements in last minute. It is unreasonable and not practical and I see no reason for independent judge going in applicants favour.

[zimba]

This is perfect and spot on. Any refusals against their own guidance should be challenged and UK Courts historically have decided against Home Office decisions.

They can not change their guidance/rules over night and expect applicants to meet those requirements in last minute. It is unreasonable and not practical and I see no reason for independent judge going in applicants favour.

Rules have not changed, the guide has been clarified only. The GUIDE HAS NO LEGAL STANDING The immigration rules for Tier 1E are covered in 6A and Appendix A,

[noajthan]

This is perfect and spot on. Any refusals against their own guidance should be challenged and UK Courts historically have decided against Home Office decisions.

They can not change their guidance/rules over night and expect applicants to meet those requirements in last minute. It is unreasonable and not practical and I see no reason for independent judge going in applicants favour.

Rules have not changed, the guide has been clarified only. The GUIDE HAS NO LEGAL STANDING The immigration rules for Tier 1E are covered in 6A and Appendix A,

+1

very well (& patiently) explained.

[helpingperson]

This is perfect and spot on. Any refusals against their own guidance should be challenged and UK Courts historically have decided against Home Office decisions.

They can not change their guidance/rules over night and expect applicants to meet those requirements in last minute. It is unreasonable and not practical and I see no reason for independent judge going in applicants favour.

Rules have not changed, the guide has been clarified only. The GUIDE HAS NO LEGAL STANDING The immigration rules for Tier 1E are covered in 6A and Appendix A,

Would you pleas provide link here to 6A and Appendix here as can not find where I am looking at Appendix A and no idea what is 6A.

[zimba]

It is called Immigration rules See Immigration Rules Part 6A and Appendix A for Tier 1E rules.

https://www.gov.uk/guidance/immigration-rules

[pharoh74]

So the HO finally agreed to re-issue the refusal letter with a new date to give us admin review right and then possibility to apply for extension.
My question is : do I need to submit an admin review for myself as well as dependant as I also received a refusal letter or would the re-issuance of the main applicant refusal letter ( and consequently resetting the time) be enough?

[confused90]

So the HO finally agreed to re-issue the refusal letter with a new date to give us admin review right and then possibility to apply for extension.
My question is : do I need to submit an admin review for myself as well as dependant as I also received a refusal letter or would the re-issuance of the main applicant refusal letter ( and consequently resetting the time) be enough?

Any updates from the admin review yet?