Tier-1 Entrepreneur Extension Visa Approval

[zimba]

Thanks Zimba for your Valuable input.

As You see above response as some applicant varied 2nd application to ILR(LR) and they get success. How do they do then?

I am fully aware of section 3C and continues residency. But still initially, i have been advised to vary my 2nd application to ILR(LR) as there is nothing mention in guideline to vary 2nd application to ILR(LR)

Please guide me.
Thanks in Advance.

I suggest you to read that case you linked very carefully. In the conclusion section, the judgment clearly says:

There is no arguable merit in Mr Biggs’ contention that the Applicant was to be treated, for the purposes of paragraph 276B, as if he had leave to remain and thus to be in “ lawful residence ”; nor in the contention that the Respondent’s construction would lead to starkly unfair results to applicants. Rather, it is readily foreseeable that if applicants were to be so treated, it would create fertile ground for the abuse of the system.

So when your section 3C ends for example when you make a new application, you are an overstayer and your lawful residence ends. Time spent waiting will not count towards the lawful residence unless your new application approves because in that case under paragraph 276B(v) you overstaying period will be disregarded. I always maintained that is the most reasonable interpretation of the rules. It makes no sense if an overstayer waiting for months or even years and without regularasing their leave, vary to long residence and claim lawful residence.
People who have claimed that they managed to secure ILR, might have gotten away with pure luck

[kom]

Thanks Zimba & Marcnath for your Advise.

I will not apply for ILR(LR) as i do not have continuity for Long residency.I will wait for my Tier 1 Extension outcome. If it's reject again what will be my other option?

I have one more question for you guys. As a over stayer can i take dividend from My Company? ( I am not on Payroll from Last year). Is that legal to withdraw dividend from My Company? As i have been told as over stayer i can not even take dividend.

Thanks In Advance.

[marcnath]

Thanks Zimba & Marcnath for your Advise.

I will not apply for ILR(LR) as i do not have continuity for Long residency.I will wait for my Tier 1 Extension outcome. If it's reject again what will be my other option?

I have one more question for you guys. As a over stayer can i take dividend from My Company? ( I am not on Payroll from Last year). Is that legal to withdraw dividend from My Company? As i have been told as over stayer i can not even take dividend.

Thanks In Advance.

If it is rejected a second time, your only option would be to leave the country and apply for another visa from outside uk

I am not aware of anything that prevents you from taking dividends.

[kom]

Thanks Marcnath.

[ishfaqsangra]

I think,if you have not exercised the "AR" and you were awaiting the result of your second application(which assuming was applied within 14 days of the refusal), then you were eligible to switch application to ILR(LR) as your section 3C Leave continues. I may be wrong but that's what I understand.

[CR001]

I think,if you have not exercised the "AR" and you were awaiting the result of your second application(which assuming was applied within 14 days of the refusal), then you were eligible to switch application to ILR(LR) as your section 3C Leave continues. I may be wrong but that's what I understand.

Section 3C ended when AR was refused.

The OP would need the second application to be approved for the overstay to be ignored by HO.

[Frontier Mole]

I am unsure about the sucess of varied extension applications to ILR. I know there have been cases where that has happened BUT I believe their case were still measured against the Tier 1 extension requirements before they were considered under ILR rules.

Are there cases where there were extension ended in refusal, re application for extension and then varied to ILR that have claimed to be successful??

[marcnath]

I am unsure about the sucess of varied extension applications to ILR. I know there have been cases where that has happened BUT I believe their case were still measured against the Tier 1 extension requirements before they were considered under ILR rules.

Are there cases where there were extension ended in refusal, re application for extension and then varied to ILR that have claimed to be successful??

Yes, there have been cases in this forum where extension was refused, AR unsuccessful and the 2nd application for extension was varied to ILR (LR). In fact, before the rule change preventing same day application for variations, some of those variations were done on the same day successfully. I doubt if the Tier 1 conditions were evaluated in that case.

I personally think the immigration rules have some ambiguity for interpretation here. If the CW assesses the ILR (LR) on its own merit and deems it successful, then the CW has the right to (and may even the requirement to) ignore any overstay period as this application is successful. However, it is equally possible to argue that the requirement is not met as the continuous stay was broken.

However, I disagree that the Tier 1 extension requirements show be considered for a general ILR(LR) variation. Of course, it is fine to evaluate the Tier 1 initial grant period for any fraud, deception of for not meeting the conditions of the initial grant.

[zimba]

The way to resolve the ambiguity in the rules is through case law. Now the case law has made it clear that time spent as an overstayer will not count as lawful residence under SET(LR)

[kom]

Hi Zimba,Marcnath and Senior Members,

I just found below immigration rules. I am not sure can be apply to my case if i apply for ILR(LR).

1. 276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) 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. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.


2. Exceptions for overstayers


39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.


So My Question is from Para 276B Line(V) and Para 39E my over stayer period will be disregarded and count as lawful residence if i apply for ILR(LR)?


Thanks In Advance.

[zimba]

No it won't. It says any previous period of overstaying between periods of leave will be disregarded
So 39E does not apply if you have been overstaying since your section 3C ended.

[gbptier1general]

Hi Zimba,Marcnath and Senior Members,

I just found below immigration rules. I am not sure can be apply to my case if i apply for ILR(LR).

1. 276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:
(i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.
(ii) having regard to the public interest there are no reasons why it would be undesirable for him to be given indefinite leave to remain on the ground of long residence, taking into account his:
(a) age; and
(b) strength of connections in the United Kingdom; and
(c) personal history, including character, conduct, associations and employment record; and
(d) domestic circumstances; and
(e) compassionate circumstances; and
(f) any representations received on the person's behalf; and
(iii) the applicant does not fall for refusal under the general grounds for refusal.
(iv) the applicant has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(v) 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. Any previous period of overstaying between periods of leave will also be disregarded where –

(a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

(b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied.


2. Exceptions for overstayers


39E. This paragraph applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.


So My Question is from Para 276B Line(V) and Para 39E my over stayer period will be disregarded and count as lawful residence if i apply for ILR(LR)?


Thanks In Advance.

Thanks a lot,helpful.

[gbptier1general]

I think,if you have not exercised the "AR" and you were awaiting the result of your second application(which assuming was applied within 14 days of the refusal), then you were eligible to switch application to ILR(LR) as your section 3C Leave continues. I may be wrong but that's what I understand.

Section 3C ended when AR was refused.

The OP would need the second application to be approved for the overstay to be ignored by HO.

Hi,
What u r saying is that 39E will be applicable once AR was applied/varied within the time-Limits defined in the Letters corresponded[14-Days] w.r.t new rules.
Is my understanding correct or u meant something else?
pls advise.
Thanks

[gbptier1general]

Hi All Senior members,

I need Urgent help regarding ILR(LR) application. As My 2nd Tier 1 Enterprenuer Application is in Pending and i have already completed my 10 years in UK. Can I vary my application to ILR(LR)?

I came across the below case which was refused by UKVI and by judicial review as well.

https://www.bailii.org/uk/cases/UKUT/IAC/2018/10.html

Please Advice me shell i go for 10 years ILR(LR) or not?

Thanks in advance.

Hi Kom,
I am NOT sure exactly to confirm.
As Zimba&others said Immigration rules r slippery in a way,it depends how u draw conclusions rather than how u apply in some cases.Thr r always Exceptions in many cases/sections.
But this inference could be concluded w.r.t u r situation(s):-
I suppose u hav 2nd time Tir-1-Enterpren Application Acknowledgement Letters&Emails from HO to u/ur solicitor(s).
This implies ur Application has been considered.Which could imply it was being considered under 39E or Sec-3C [exceptional cases].I think in ur case u applied after AR refusal but within 14-Days of AR refusal which is valid w.r.t ur HO AR-refusal letter.
Look below Case:-
"just got a decision of first tier tribunal yesterday, hearing took place 2 weeks ago. The judge said- ''paragraph 39E
of the Immigration rules provides exceptions for overstates and where the application was made following the refusal of a previous application for leave which was made in time and with in fourteen days of the expiry of any leave extended by section 3C of the Immigration Act 1971 or any administrative review or appeal being concluded and withdrawn or abandon or lapsing . The respondent accepts that the application was made within such 14 days of the previous application(and appeal) being concluded."
Thus the applicant meets the requirement of paragraph 276B and his appeal is allowed under section 6 of Human rights act 1998.'' 
indefinite-leave-to-remain/break-in-10- ... 66-20.html
May be a good smart covering Letter & not a confusing one may get ur case to consideration to LR& even if refused u wil hav chance of In-country Appeal after u apply for 10-Yr LR
For The bolded details above pls seek further points from other Gurus.

To summarize:-
Technically ur 3C-was ended by AR-Refusal arrival to u&by virtue of 39E overStay should be IGNORED because u applied 2nd Tim Application with 14-Days of AR-Refusal[It does NOT matter it is same or other].
Ur barrister should help u win if Appeal was Givn for LR.
Looks u r Fine&have fair chances to win if u r confident.
Good Luck!

[janjani]

gbptier1general
Any update ??

[CR001]

gbptier1general
Any update ??

User gbptier1general is no longer a member of the forum and has been banned.

[kom]

Hi Seniors,

Can you please advice me on below?

I want to add my sister in law (British Citizen) as working director in my Company.Still i will be the share Holder of the Company.
once i add my sister in law do i need to inform UKVI about that? is that OK to add my sister in law as director and Pay her via Payroll? if i will have interview on my 2nd extension application does UKVI or Case officer ask me to interview her as well?


Please Guide me.

Thanks in advance.

[marcnath]

Hi Seniors,

Can you please advice me on below?

I want to add my sister in law (British Citizen) as working director in my Company.Still i will be the share Holder of the Company.
once i add my sister in law do i need to inform UKVI about that? is that OK to add my sister in law as director and Pay her via Payroll? if i will have interview on my 2nd extension application does UKVI or Case officer ask me to interview her as well?


Please Guide me.

Thanks in advance.

Why should a sister in law be any different for an unrelated employee unless you are just trying to get her in to fulfil the requirements.

[kom]

Thanks for your reply Marcnath.

[kom]

Hi Senior Members,

I have came across below post here. which was posted yesterday. can you please have a look and advice me on my case is similar or not?

indefinite-leave-to-remain/tier1-entrep ... 79752.html

As Jaz9567 varied his 2nd application to ILR(LR) and he got approval.only difference is after 1st extension refusal he did not apply for AR he strait away applied for fresh 2nd application. is that means his section 3c coverd him?

Please give me your suggestion. as i already finished my 10 years but waiting for 2nd application result.

Thanks.

[marcnath]

Hi Senior Members,

I have came across below post here. which was posted yesterday. can you please have a look and advice me on my case is similar or not?

indefinite-leave-to-remain/tier1-entrep ... 79752.html

As Jaz9567 varied his 2nd application to ILR(LR) and he got approval.only difference is after 1st extension refusal he did not apply for AR he strait away applied for fresh 2nd application. is that means his section 3c coverd him?

Please give me your suggestion. as i already finished my 10 years but waiting for 2nd application result.

Thanks.

AR application would have no impact.

Whether it was Jaz9567's case or yours, there is no Section 3C protection.

This was a benefit of Section 49E, rather than Section 3C. There was a court case that recently seemed to indicate this was not applicable. So, assuming Jaz's case was genuine, all that would mean is that you have an argument to go to court for equal treatment in case your variation is refused.

[kom]

Marcnath,

Can you please explain me little bit more about section 49E and How to fight in court with Jaz case as we do not have any other information.

[marcnath]

Marcnath,

Can you please explain me little bit more about section 49E and How to fight in court with Jaz case as we do not have any other information.

Section 49E allows HO to ignore any overstay period between applications if the 2nd application is made within 14 days and the subsequent application is approved.

I am not a legal expert so you need to take to a lawyer about using precedent cases - I am just assuming it should be possible to ask HO for cases such as Jaz's

[kom]

Thanks marcnath for giving me suggestion.

I will talk to lawyer and find out more about that.

Why UKVI is not treating everyone equal as there are many case reported here as they refused after 2nd application varying to ILR(LR)?
Is there a way to explain on covering letter or any other legal terms to explain or apply all the immigration sections correctly on particular case?

Thanks a lot for your kind support.

[marcnath]

Thanks marcnath for giving me suggestion.

I will talk to lawyer and find out more about that.

Why UKVI is not treating everyone equal as there are many case reported here as they refused after 2nd application varying to ILR(LR)?
Is there a way to explain on covering letter or any other legal terms to explain or apply all the immigration sections correctly on particular case?

Thanks a lot for your kind support.

Are there many cases where they have refused 2nd application purely based on the overstay clause ? I haven't seen many but I don't follow the ILR forum too closely.

There are many reasons for refusal, so each case is very different.