ILR Refused via Tier-1 General..Reapplying Questions

[zullu41]

Hi,

I am director of a limited company.
I applied for ILR via Tier-1 general route on 5th Oct 2015. Was asked to attend interview 2 weeks later but wasn't informed what it was for. I got my case checked via a solicitor on 6-10-2015 and he advised me that i didn't had self assessment returns for 2011/12 and 2012/13 so contacted the accountant and filed them on 7-10-2015. There was NO ADDITIONAL TAX due as the income (salary + dividends ) was within the basic income tax threshold.
According to the accountant we got the UTR assigned in 2014 and subsequently the self assessment returns for 2013/14 and 2014/15 were filed in time. For years 2011/12 and 2012/13 there was no need to file the self assessments as per him as the (1) HMRC didn't demanded the returns (2) no additional tax was due (3) Dividends are also declared to HMRC when company accounts are sent to HMRC during the annual corporation tax filing.

Attended the interview in which was asked about company history / accountant / tax payments etc.

On 27-11-2015 received the refusal later
"We have accepted your claimed earnings for PAYE however HMRC records show that you have not completed a self-assessment tax returns to declare income received in the form of dividends from your company for any period between 2010 to 2015
It is also apparent when your income was eventually declared this had been done retrospectively after the date of your submission of your application. This has amounted to misleading another government department
On this basis settlement application is refused under paragraphs 322 (5) of the immigration Rules as your character and conduct in misleading another government department would lead to the undesirability of permitting you to remain in the United Kingdom"

I have hired a solicitor and applied for admin review last week.
All my taxes are paid in time for past 4-5 years. Self assessment for 2013/14 and 2014/15 was done in time. 2011/12 and 2012/13 self assessment was done late ( 1 day after the ILR application ) but no additional TAX is due. My claimed income during my previous extension applications and SA302 match.
DIVIDENDS are also declared to HMRC when annual company accounts are sent to them during corporation tax filing.

My query is :
(1) Normally what is the success rate of admin review applications ?
(2) I feel my case is strong as all the points raised in refusal are incorrect. But ofcorse 2 years self assessments are late ( with no tax implications ).
(2) If admin review is rejected then what are the next options i have ?

[geriatrix]

1. Success (or failure) of admin. review depends on the merits of the case, not statistical rate of previous reviews! Unless you can prove that you were not required by law to file tax returns for the years that you did not do (within the standard stipulated time) - because there was no tax to pay or HMRC did not ask you to file self-assessment -the admin. review may uphold the initial decision, IMHO.
2. As above.
3. When does your current leave expire?

(5) the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security;

[muraxza]

hi

Problem is not many people understand why self-assessment is important because of they don’t aware of it purpose even being a director of company your accountant should have told you about this,
Any way chances are 50 50 as they have put the allegation of misleading to other government department don’t know if this come under the deception? But in your case they didn’t say that you deceive HO to get visa so this is a good news for you here so all you need to prove your innocence that you were not aware of that, even if you were aware and had submitted the SA still there was no tax liability were creating and that’s probably was the obvious reason your accountant didn’t instruct for this, proof them the company you claim dividend from has paid full tax and you are the 100% shareholder of that company. you can use this sort of argument.

But again chances is 50 50 and your luck will need to play well that’s a last thing you can pray for.

[zullu41]

Thanks sushdmehta for your reply.
Thankfully i had done an extension in march 2015 so i have visa till March 2018. But i did only for myself and not for my dependents and there visa expired on 20-10-2015. HO have sent me my passport/BRP back and my dependents documents are still with them.

In the refusal letter they have mentioned i have not completed the self assessment for any year between 2010-2015 which i wrong as only 2 years are late. Similarly the other points they have mentioned are also wrong. Ofcorse i have challenged these in admin review.

So what do you suggest the next course of action should be ? ( as you mentioned successful admin review chances are not that great )

[Wanderer]

For years 2011/12 and 2012/13 there was no need to file the self assessments as per him as the (1) HMRC didn't demanded the returns (2) no additional tax was due (3) Dividends are also declared to HMRC when company accounts are sent to HMRC during the annual corporation tax filing.

The self employed and company directors are required to fill in self assessment forms, you can't turn a blind eye or claim you weren't asked, you should be aware of your duties as a director.

Ignorance is no defence I'm afraid.

[geriatrix]

1. Are your dependants eligible for settlement at the same time as you? Were they included in the SET(O)?
2. Okay, so the reasons for refusal may not be exactly true in toto (e.g. - dividends were declared in self-assessment for the years self-assessment was done, contrary to what HO claims that they were not declared for all the 5 years) but the fact remains that self-assessment for certain years was not done and the essence of the reasons for refusal still remains valid albeit for not 5 years but less.
3. In 2014, did HMRC tell you to file self-assessment or did your account request for UTR? If the latter, why was this not earlier (because the accountant told you that since there is no tax to pay there is no need for self-assessment)?
4. The more you can prove the decision or the accusations to be "unlawful", higher are the chances of the refusal to be overturned in admin. review.

[geriatrix]

That the dividends were declared when filing corporation tax may not be a good defence, contrary to what is suggested above, because:
1. it is not the company that applied for settlement, an individual did.
2. The immigration laws do not require the company to be of "good character", the individual subject to immigration laws is.

Just my opinion .....

[zullu41]

Thanks sushdmehta and wanderer.
Yes dependents were eligible for ILR and were included in SET (O ).
As per my accountant he applied for UTR earlier as well but never received it. The first letter we got from HMRC was notice for 2013/14 return ( which was done and following as well ).
But yes now ofcorse i know that as a director the returns should have been filed.
I am the 100% share holder of the company and the total director dividends declared in company accounts for the time period 2010-2015 match with the self assessments returns ( although yearly are different as self assessment and company tax years are different ).

(1)Solicitor told me that after the admin review ( if not successful ) we can go for judicial review ? what do you suggest.
(2) As the refusal points to retrospective filing after the initial application date ; will it be a good idea to re apply again ? ( in case admin review not successful ) and in this case what is the process to get back the dependents passports ( as they are still with HO ) ?
(3) or ( in case admin review not successful ) can i apply for the visa extension of my dependents as i have visa till 2018. Will the current decision have any impact on its outcome ?

[geriatrix]

1. Yes, you may choose to apply for Judicial Review if you believe that the decision is not in accordance with law.
2. Don't assume "retrospective" to mean "after the date of ILR application". It could very well mean "after the standard stipulated timeframe to file self-assessment for a tax year". If the latter, re-applying will lead to the same result.
3. Your dependants are in a difficult position too, in a different way. There leave is extant due to Section 3C and will remain so until all appeal options are exhausted. They cannot make a new application while an appeal is pending (e.g. - while admin. review is under process). If the admin. review is refused, the dependants will become oversyaters from the day following receipt of admin. review decision. They will need to apply for PBS dependant extension within 28 days from then on. I cannot say for sure whether they will be granted extension because of 322(5). They should be, unless HO decides to curtail your PBS leave under 323 due to 322(5).


Do note that applying for JR does not grant the applicant the right to remain in the UK if the applicant doesn't have that right already through valid leave. If the applicant is an overstayer at the time of applying for JR, the applicant will remain an overstayer unless the JR judgement determines the decision by HO that led to the applicant become an overstayer as "unlawful".

[zullu41]

Thanks sushdmehta.
I will wait for the admin review decision and hope for the best.
In case of a negative decision based on the feedback the JR seems to be the best ( or rather only ) option.
(1)Have you come across similar cases in this forum ? where a self assessment or 322(5) related case went for JR. Would be really helpful to know of decision/arguments etc
(2)Also how much time JR normally takes ?

The case i have presented in admin review is that it was a mistake/admin error on part of mainly accountant (and applicant ) that we missed 2 self assessments which when discovered has been rectified voluntarily ( without HMRC or HO telling us ) + there is no revenue loss to HMRC because of this admin error as no TAX was due.All due taxes have been paid in time in all 4-5 years. Hence to remove 322 (5).

[trbvm]

Zullu - Good luck with your AR

Did they say anything about your existing leave (you said you have tier 1 to 2018)?
Does that get cancelled? Or can you still stay here (and travel) like that?

[zullu41]

With refusal letter they have returned my passport and BRP ( which has Tier-1 till 2018 ) so i suppose it remains OK.

[trbvm]

With refusal letter they have returned my passport and BRP ( which has Tier-1 till 2018 ) so i suppose it remains OK.

i think you should find out for sure. having 2 years to fight is much better than them cancelling it and then you become an overstayer while appealing (if it goes that far - hopefully AR will be fine)

[zullu41]

Yes i have had some suggestions to re apply the ILR ( if the AR result is negative ) and attach a cover letter explaining the previous issue.
At current point i am not very sure how will i proceed but i suppose need to discuss my case and get professional advice from few more solicitors ( very hard to trust them as £££ is there main objective unfortunately )
Anyone in this forum thinks reapplying is a good idea ( with regards to 322(5) in previous failed application ) ??

[jimtoole]

"322(5) It is undesirable to let an applicant stay because
of their character, behaviour or associations
(including convictions which do not fall within
paragraph 322(1C)), or because they are a
threat to national security"

This section will be blown away in court as paying your tax late is not a conviction and is not a threat to national security. This could well be noted here that due to the late payment of tax there has been no loss to the HMRC and tax due was paid without HMRCs investigation of any sort.

[jimtoole]

Sorry I have come across a case where the 322(5) has been withheld by the judge at UTT but in that case the only evidence the apellant is relying on is a Letter from her new Accountan saying that they have now sent the amended returns to HMRC but no updated HMRC SA302 available. I am in a worse situation as compared to you. The only hope will be to correct the Tax with HMRC but even after that its less likely to get ILR. Real bad times. I can only think of putting a new application while on appeal to be a better option after the HMRC is updated.

"322(5) It is undesirable to let an applicant stay because
of their character, behaviour or associations
(including convictions which do not fall within
paragraph 322(1C)), or because they are a
threat to national security"

This section will be blown away in court as paying your tax late is not a conviction and is not a threat to national security. This could well be noted here that due to the late payment of tax there has been no loss to the HMRC and tax due was paid without HMRCs investigation of any sort.

[usernew123]

Thanks sushdmehta for your reply.
Thankfully i had done an extension in march 2015 so i have visa till March 2018. But i did only for myself and not for my dependents and there visa expired on 20-10-2015. HO have sent me my passport/BRP back and my dependents documents are still with them.

In the refusal letter they have mentioned i have not completed the self assessment for any year between 2010-2015 which i wrong as only 2 years are late. Similarly the other points they have mentioned are also wrong. Ofcorse i have challenged these in admin review.

So what do you suggest the next course of action should be ? ( as you mentioned successful admin review chances are not that great )

Hi Zullu41,

Please could you update us in your situation? did you hear back about your admin review? Also did you initially apply as premium service or sent by post?

[shib123]

Hi Zullu41,

Was your admin review successful. If not did you reapply and got your visa? I am also in the same situation.

[zullu41]

Hi,

My initial Tier 1 General visa ( including extension) was from 18 Oct 2010 to 18 Oct 2015. I applied for ILR and it was refused due to a missing SA. Now i am re applying after filing the missing SA ( i did extension in March 2015 so have visa valid till 2018 )

I entered UK in early Jan 2011 within the 90 days so my period started from 18-10-2015.
I left UK after one week on 15-01-2011 and returned again for 1 week in April 2011 before finally moving here on 10-07-2011. My absences were 160 odd days in my first ILR application and hence the 5 years continuous period was in tact.

Now my query is that i am planning to reapply on 30-01-2016 but i was outside UK 5 years earlier on 30-01-2011 so will i have valid 5 years continuous period ? or do i have to be in UK on the same date 5 years earlier ?

[CR001]

do i have to be in UK on the same date 5 years earlier ?

This requirement is applicable to British Citizenship applications.

[PSCILR]

Shib123 ,

What is your case? Explain please for benefit of all forum members.

[zullu41]

Hi,

My ILR was refused due to a missing SA. I still have a valid Tier-G visa till march 2018 and now re applying after filing the missing SA. My dependents visa has now expired and they are in the overstaying period.

My query is that do i have to do there extension first to align there visa with me to Mar 2018 first and only then they can reapply with me for ILR as dependents ?

Or if i file the ILR application ( me + dependents ) within the 28 days over staying period for them they will qualify for the ILR ?

[CR001]

Why are you opening a new topic/thread when you have a thread already?

I will merge this one with your existing thread and please keep all your questions in one thread.

[zullu41]

Thanks. So just to confirm if calculating continuous period from 30-01-2016 total absences are below (including 30-01-2016)


Feb 2011 28 Days
March 2011 31 Days
April 2011 08+14 Days
May 2011 31 Days
June 2011 30 Days
July 2011 09 Days

Total Days outside UK in first 12 months 153 Days

So it is within the 180 days so the continuous period should be fine ?
Also do i need to explain every absence above 30 days with a evidence ? ( my main reason for these absences was birth of a child so a letter from me + the child birth certificate is enough evidence ? )

[CR001]

Please stop creating mulitple posts (click)