Tier 2 visa Refusal

[normanolima]

My post has been here for a while. Would the Seniors and other on this forum kindly provide me your views on my post below something can be done, thank you.


Dear all,
I'm new to this post and i must thank you all for the support informaton exchange throug this forum. I really would appreciate your views on the way forward and see if the following is considered deception.

My cousin was on tier 2 last year and after his visa expired, he overstayed for 25 days because of problems with his ticket(honestly). He now reapplied from outside the UK for a Tier 2 visa, every point earned except the dreadful 3207A. He says he may have forgotten to tick on one of the questions to confirm that he overstayed and had thought that his passport with an arrival stamp in his country confirming he was out of UK was sufficient.
In fact, the refusal letter makes no mention that he failed to disclose the overstay. Rather, bizzarely, the refusal says he failed to disclose further details when he overstayed. The ECO refusal notice is pasted herewith.

ECO REFUSAL STATEMENT: UPHELD BY ECM IN ADMIN. REVIEW
REFUSAL UNDER 3207A: APPLICANT FAILED TO DISCLOSE MATERIAL FACTS
" You last travelled to the UK on 10th May 2009 having being issued a visa valid from 30th April to 12th June 2009 , based on a certificate of sponsorship stating that the period of sponsorship was from 30/4/2009 to 12/06/2009. I note you remained in the UK until 9th/07/2009, 28 days after the expiry of your visa and your certificate of sponsorship.
You provided no explanation as to why you stayed twice as long as you were authorised to, no explaination of what you did during this period and no evidence of where you stayed or who supported you for the extra month."

He was given a chance for administrative review and tried to explain that omission of this information was unintentional and innocent. But ECM upheld the refusal. He now fears the worst, 3207B and would like to seek judicial review or reapply.

Right of Appeal limited to grounds referred in Section 84(1)(b) and (c) of the Nationality and immigration Act

Thank you all for your views.

Normanolima

[djzack]

My post has been here for a while. Would the Seniors and other on this forum kindly provide me your views on my post below something can be done, thank you.


Dear all,
I'm new to this post and i must thank you all for the support informaton exchange throug this forum. I really would appreciate your views on the way forward and see if the following is considered deception.

My cousin was on tier 2 last year and after his visa expired, he overstayed for 25 days because of problems with his ticket(honestly). He now reapplied from outside the UK for a Tier 2 visa, every point earned except the dreadful 3207A. He says he may have forgotten to tick on one of the questions to confirm that he overstayed and had thought that his passport with an arrival stamp in his country confirming he was out of UK was sufficient.
In fact, the refusal letter makes no mention that he failed to disclose the overstay. Rather, bizzarely, the refusal says he failed to disclose further details when he overstayed. The ECO refusal notice is pasted herewith.

ECO REFUSAL STATEMENT: UPHELD BY ECM IN ADMIN. REVIEW
REFUSAL UNDER 3207A: APPLICANT FAILED TO DISCLOSE MATERIAL FACTS
" You last travelled to the UK on 10th May 2009 having being issued a visa valid from 30th April to 12th June 2009 , based on a certificate of sponsorship stating that the period of sponsorship was from 30/4/2009 to 12/06/2009. I note you remained in the UK until 9th/07/2009, 28 days after the expiry of your visa and your certificate of sponsorship.
You provided no explanation as to why you stayed twice as long as you were authorised to, no explaination of what you did during this period and no evidence of where you stayed or who supported you for the extra month."

He was given a chance for administrative review and tried to explain that omission of this information was unintentional and innocent. But ECM upheld the refusal. He now fears the worst, 3207B and would like to seek judicial review or reapply.

Right of Appeal limited to grounds referred in Section 84(1)(b) and (c) of the Nationality and immigration Act

Thank you all for your views.

Normanolima

Yes, I think in this case it's very unfortunate that the information on overstaying wasn't disclosed in the first place. I am sure they would have let it pass if they knew the reasons!

I can see why someone hasn't commented on your post for a long time for now, it's because that the reason or decision for refusal is self explanatory and there is nothing much one can do.

Maybe you should consider trying your luck with a solicitor who can help with the appeals, again I am not sure what could be the possible outcome of the appeal, but no harm getting advice.

[normanolima]

Thank you Djzack for your advice. However, are they not been too heavy handed here? I mean i found out that those who failed to disclose other exceptions to the rules such as spent convictions, or those who fail to disclose that they receive child tax credit(which is a public fund for which they is an exception) by answering no have not been denied visas. By going beyond the 28 day exception to add more things that he should have stated, is there a requirement that besides answering yes or no to one of the questions , an applicant must also supply further details of overstay to qualify for the 28 day exception? Is this a deliberate ploy to make it difficult even if an applicant successfully argued that even if he answered no, there was evidence inside the passport of overstay that should be taken into account. By the way, i thought the visa application form and all attachments and passport cannot be seen separately and something missing in one of the documents can be found in another within the same bundle often handed off with the application?

I'm sorry for this long post but your thoughts are much appreciated.

[arsenal49]

well....,

the onus is on the applicant to provide information to the best of his/her knowledge.

Living in the country after his permission has run out is a serious offence. 28 days period exist to make sure that enough time is given to applicant to pack his stuff.so going beyond that period is just not acceptable in the eyes of HO.

You were in the wrong by:
1) not declaring it in the app form that you overstayed.
1a) did not provide any info to caseworker about your reasons for overstaying. so he has no alternative other than to refuse your application by law because this is not something he can just overlook and say its an (honest) mistake. he doesnt have the authority to make that sort of judgement because rules are in place to tackle situation just like yoursi.e refusal

2) i can understand why you thought stamp on ur passport could be enough to show that you didnt hide anything and maybe that should be your REASON for another review.

this is just my understanding but im sorry to say i dont see any silver lining other than to pursue based on the reason as described in point number 2 above.

regards

[normanolima]

Thank you arsenal49 for your very helpful response. Sorry for this long post but i hope this can help to highlight some of the technical problems with completing visa applications.
Indeed, he will be pursuing judicial review based on the effective disclosure of overstay as shown in a stamp in his passport. The problem is that in my view, caseworkers have shifted the goal posts. As i mentioned earlier, he had overstayed for less than 28 days and he honestly believed the stamp in his passport showing arrival home(abroad) from the UK was sufficient. However, the refusal shifts the grounds further by adding that he never explained why, where and how he overstayed. Even if he succeeds on the passport stamp as accepted disclosure, he still will be refused because that alone did not disclose WHY, WHERE and HOW he overstayed. My concern is, where is the requirement in the rules that a certain level of detail must be supplied before an exception such as a spent conviction or under 28 day overstay applies? He had genuine reasons for overstay which he forgot to provide but should the caseworkers not have given a chance to supply such details say through an interview. Previously, visa interviews would help case workers to obtain such details. Because, in many embassies outside the UK, they are unable to do that for financial reasons i think, they seem to quickly rush to judgement to apply very severe rules such as 3207A or B simply because extra details have not been provided. This could have been avoided if an interview was held to give an opportunity for an applicant to privide details whose materiality is known to caseworkers but has not been clearly required by the rules or in the visa application documents. I still believe this aspect is contestable. What are your views?

[djzack]

It might sound a bit crazy, but why doesn't your cousin or whosoever is stuck in the debate gets involved with this forum?

I am sure that he/she will have more to contribute to the actual problem other than someone who is acting on behalf, of course I understand that you're trying to help, but it's not a bad option to use your own voice?

[arsenal49]

well if judge accepts your point that stamp on passport, which was SUBMITTED to HO, is a documentary evidence of you over staying, hence you can NOT be punished for "hiding" this fact, then, it doesnt matter about caseworker's other points such as why, where etc. Just make sure those questions are answered in your appeal.

regards

[normanolima]

Thank you Dzack and Arsenal. Unfortunately my cousin is unable to access the internet at his location and so has requested me to help post for him here. He has now said he has been asked by the employer if he wishes to pursue judicial review of refusal under 3207A or reapply so can he can confirm if the c aseworkers will automatically apply 3207B. This way, it would be better to fight allegations of deception on the grounds of effective disclosure in the passports. It would appear the stakes are higher fighting 3207B where they have confirmed deception in after another application than now where they havent expressely mentioned it in the refusal letter above. Your views are much appreciated.