Date of application (for Tier 1 General extension)

[eowyngirl]

I am embarking on the odyssey that is preparing my Tier 1 General visa extension for next year and have come across something I would like to get some comments on.

The question is - What is the application date of my original visa? As I understand it, this will determine the conditions which I must satisfy to obtain the Tier 1 General extension.

Normally this is straightforward but I had some issues with mine, as follows:

March 2008: Applied for HSMP visa (out of the UK)
August 2008: Rejected by UKBA
August 2008: Appealed decision
Dec 2008: Appeal granted, HSMP letter given
April 2009: Used HSMP letter to apply for Tier 1 General visa (out of UK), as per transitional provisions
May 2009: Tier 1 General visa granted
June 2009: Entered the UK

The application date is relevant for me as I do not have a Masters, only 2 Bachelors degrees. Under the HSMP rules that I initially applied under, I was able to claim 30 points for my Bachelors. However, under the rules at the time of my Tier 1 General visa approval, I would have needed a Masters to qualify for the visa.

Now common sense dictates that I should qualify for extension next year as the rules that were in place when I initially applied (ie March 2008) provided me with enough points for the visa (provided I satisfy the other criteria).

However, I cannot find the exact rule that I can quote in my extension application cover letter to confirm this. Someone has suggested that this is the principle of "legitimate expectation" but I would like to determine whether there is something in the UKBA guidance that I can rely on? I may be being paranoid, but given my history with UKBA I'd rather be safe than sorry!

[geriatrix]

March 2008.

Look for key-phrase "under the rules in place" in the Tier 1 (General) policy guidance, to help you understand the eligibility criteria (for various attributes) that applies to you.

[eowyngirl]

Thanks, but the words "under the rules in place" in the UKBA guidance are followed with (more or less) "at the time the initial application was made". That is, everything hinges on what the initial application date is, which is my current issue. I already know what the "rules in place" should MEAN in my context, but what I need to put forward is actual support in a form that a case worker will understand - ie. UKBA guidance, ministerial guidance, legislation or regulations.

The risk is that the case worker will interpret "date of application" as being, say, the time when the HSMP letter was used to APPLY for the Tier 1 visa (ie April 2009). That is, although I applied for a HSMP on March 2008, I used my HSMP letter to APPLY for the Tier 1, the application of which was made in April 2009. The examples in the UKBA guidance and the Immigration Rules on the website are silent on this distinction. I am hoping someone can point to something in the actual legislation, regulations or guidance that I can rely on when I make my extension.

I am of course planning to include copies of my initial HSMP application and HSMP letter to prove the timeline. But this will not be helpful if there is a different "date of application" that is considered.

Thanks

[geriatrix]

Thanks, but the words "under the rules in place" in the UKBA guidance are followed with (more or less) "at the time the initial application was made". That is, everything hinges on what the initial application date is, which is my current issue.

And the initial application was made in - March 2008.

In 2009, you applied for entry clearance on the basis of approval of an "initial application" (made in 2008).

Do appreciate that "fulfilling HSMP / Tier 1 eligibility criteria" was not amongst the requirement(s) for (the first application for) entry clearance you made - - the requirement was to "have a valid HSMP approval letter in possession" - an approval that was assessed and granted based on the immigration requirements on the "date of application for HSMP approval".

[mulderpf]

There's nothing for the person working on your application to interpret. Initial application is exactly that - the date that you initially applied. Not the date that you had an appeal granted or the date that you had a visa approved, the date when you initially applied.

Another way to think about it is to think that generally (unless there's a clear exclusion) is that the rules which your visa was granted on (e.g. the rules in place March 2008) are the rules which will follow your visa and each extension. It's the rules which your initial visa were based on (e.g. the date of initial application), not the rule in place when your visa application was granted.

[eowyngirl]

Thank you sushdmehta, but I really am trying to close all potential misinterpretations in my extension cover letter rather than go through the agonising appeal process again.

The common sense interpretation of "initial date of application" IS of course March 2008, but I am, being a lawyer, trying to look at all other potential issues that may arise and this is one of them.

I am inferring from your responses that you know of no specific example or guidance in the UK immigration context that would lend support to our conclusion that the initial application date is March 2008, not April 2009.

I suppose I am thinking of something along the lines of the HSMP Forum Judicial Review judgement of 8 April 2008. However, this applies only to pre-5 December 2006 HSMP applications and does not seem to be a binding precedent for post-5 December 2006 applications such that this cannot be relied upon to uphold the general administrative law principle of legitimate expectations.

[eowyngirl]

Thanks mulderpf, I guess I may be reading too much into the actual words. My visa application was for the HSMP visa. Under the transitional arrangements for Tier 1, I was able to use the HSMP approval letter to APPLY for the Tier 1. Accordingly, some case worker may argue that my actual Tier 1 application date is when I actually did apply for a Tier 1, being April 2009.

The potential confusion arises because I applied for a HSMP first, but got a Tier 1. Under the system at the time, there were 2 stages to a successful application: a) obtaining a HSMP approval letter and b) using this letter to gain entry clearance.

Conversely, the Tier 1 General visa application process collapsed this into a single stage, being application for the visa only. Normally I would have used my HSMP approval letter to apply for entry clearance; however under the transitional arrangements I was able to receive approval for a Tier 1 rather than entry clearance for a HSMP visa.

I suppose the answer lies in the transitional provisions existing at the time; the fact that the UKBA was satisfied that I only had to demonstrate the requirements for HSMP entry clearance for my Tier 1 application strongly indicates that the Tier 1 application was not, in fact, a fresh application but included the grandfathering of the HSMP criteria that I satisfied back in March 2008.

Another way to think about it is to think that generally (unless there's a clear exclusion) is that the rules which your visa was granted on (e.g. the rules in place March 2008) are the rules which will follow your visa and each extension. It's the rules which your initial visa were based on (e.g. the date of initial application), not the rule in place when your visa application was granted.

I know this general rule, but do you know what it is this based on? General practice, the "legitimate expectations" principle, or a specific provision in legislation or regulation? I only ask as in many other areas of law, this rule is not guaranteed. Laws can be retrospective as well as prospective; and rules that existed at the time are not always grandfathered. I have learned to take nothing for granted when it comes to visa applications which is why I am going overboard with this analysis.

[mulderpf]

This is by means of deduction:

* Between March 2009 and May 2010 the rules said that you could not get a Tier 1 visa with just a bachelor's degree.
* You got a Tier 1 visa.
* Therefore, either the officer who assessed your application made a mistake (no, they did not) or you do not fall under the rules in place between March 2009 and May 2010 (this is the correct assumption as you fall under the rules when you initially applied).

You would not have a visa now if you fell in the rules between March 2009 and May 2010.

I strongly suggest not to write a long convoluted cover letter, you might just end up confusing the person assessing your application. Keep it simple - if it is covered in the application form, no need to write another story about it.