ILR Refused - Variation of Leave

newbie_user · Post by **newbie_user** » Fri Oct 19, 2012 12:04 pm

Hi,
I applied for ILR on the basis of Workpermit and Tier 1 (General) categories in Sheffield and it is refused. I am listing the dates below:

1) Entry Clearance Work Permit - 16/03/2006 to 16/03/2008
2) Left UK in Jan 2007 to India office and came back again in July 2007
3) Applied Work Permit Extension - Feb 2008
4) Received Extension till 16/03/2010 but after my WorkPermit Expiry date which is 16/03/2008. Leave to Remain document has issue date as 04/08/2008

5) Applied for Tier1 (General) in October 2008 and granted till October 2011
6) Applied for Tier1 (General) Extension in September 2011 and received extension till October 2013.

Now, I applied for ILR claiming continuous period of 5 years from August 2007 till August 2012. But it is refused and they gave me a letter saying that I have no valid leave to remain from 16/03/2008 to 04/08/2008. The document has title Variation of Leave or Refusal to Vary Leave.

Can someone please clarify this? I am really confused

innocentdevil · Post by **innocentdevil** » Fri Oct 19, 2012 12:43 pm

did you have valid leave to remain for that period. if you did, it should be on your passport. if you have it then I would get them to reconsider it

Post by **geriatrix** » Fri Oct 19, 2012 1:29 pm

On what date did you apply for WP extension in 2008?
Was this application for leave to remain as WP migrant returned for any reason (invalid application, missing information, missing documents, payment problems etc.) and were you asked to apply again?
What was the expiry date of WP entry clearance issued to you in 2006 (as given on the vignette in your passport)?

newbie_user · Post by **newbie_user** » Fri Oct 19, 2012 1:31 pm

Thanks for the reply, but i didnt get what you meant. My workpermit exipiry date is 16/03/2008 and I applied for extension in Feb 2008. However, the decision was delayed and i got my documents back on 04/008/2008. Now, HO says that I do not have valid leave to remain from 16/03/2008 - 04/08/2008
I read that this is covered by section 3(c). But can this be counted towards 5 year residence rule?

Post by **geriatrix** » Fri Oct 19, 2012 1:41 pm

The date of issue of WP (authorisation letter) or its expiry has nothing to do with ILR.

What is relevant here are the dates of applications that you made for entry clearance or leave to remain as a WP migrant on the basis of a WP authorisation letter and expiry dates of such leave(s).

So when you say "my WP expiry date is 16/03/2008", it means that you are referring to the date of expiry of "WP authorisation letter" and not the leave granted to you subsequent to an entry clearance / leave to remain application. Such dates are irrelevant.

newbie_user · Post by **newbie_user** » Fri Oct 19, 2012 1:45 pm

Please see below:

1) On what date did you apply for WP extension in 2008?
Actually, I am not sure of the date as this was applied by employer. But I gave documents to my employer in February 2008. I am trying to get in touch with them to find out exactly when they submitted documents.

2) Was this application for leave to remain as WP migrant returned for any reason (invalid application, missing information, missing documents, payment problems etc.) and were you asked to apply again?
Again, I am not sure of this if my employer had any problems with initial application. But I got a letter on 04/08/2008 saying that my WP was extended till 16/03/2010.

3) What was the expiry date of WP entry clearance issued to you in 2006 (as given on the vignette in your passport)?
The expiry date of WP entry clearance as on passport is 16/03/2008

Post by **geriatrix** » Fri Oct 19, 2012 2:20 pm

Without the answers to pending questions, no one can comment on whether or not the refusal was an appropriate outcome.

ramay · Post by **ramay** » Fri Oct 19, 2012 9:42 pm

looks like a wrong decision, ignorant HO staff...You applied in time so therefore you have no gaps in visas under 3C..

ryan2020 · Post by **ryan2020** » Sat Oct 20, 2012 11:31 pm

ramay wrote:looks like a wrong decision, ignorant HO staff...You applied in time so therefore you have no gaps in visas under 3C..

agree with ramay

Post by **Greenie** » Sat Oct 20, 2012 11:37 pm

ryan2020 wrote:
ramay wrote:looks like a wrong decision, ignorant HO staff...You applied in time so therefore you have no gaps in visas under 3C..
agree with ramay

How can you say this when the op himself doesn't know when the application was made?

ramay · Post by **ramay** » Sun Oct 21, 2012 1:00 am

How can you say this when the op himself doesn't know when the application was made?

what is wrong?
he said 3) Applied Work Permit Extension - Feb 2008
and his visa valid untill 16.03.08

Post by **vinny** » Sun Oct 21, 2012 2:00 am

Were the work permit extension application and further leave to remain application separate applications?

egoneo · Post by **egoneo** » Mon Oct 22, 2012 7:12 pm

ramay wrote:
How can you say this when the op himself doesn't know when the application was made?
what is wrong?
he said 3) Applied Work Permit Extension - Feb 2008
and his visa valid untill 16.03.08

actually he said he gave it to his employer in feb 2008. if the employer submitted it past 16.3.08 they could still grant him an extension but then his leave would have expored. request a sar

ramay · Post by **ramay** » Mon Oct 22, 2012 10:44 pm

actually he said he gave it to his employer in feb 2008. if the employer submitted it past 16.3.08 they could still grant him an extension but then his leave would have expored. request a sar

Yes, request a sar, you have time .then everything become clear..

newbie_user · Post by **newbie_user** » Mon Oct 22, 2012 11:37 pm

Thanks to everyone for invaluable comments. I am going to raise a SAR to find out when the application was received by Home Office. Should i request for Visa Application Records on SAR? or which category should be selected?

p2kin · Post by **p2kin** » Tue Oct 23, 2012 9:24 am

newbie_user wrote:Thanks to everyone for invaluable comments. I am going to raise a SAR to find out when the application was received by Home Office. Should i request for Visa Application Records on SAR? or which category should be selected?

ask for everything... it's the same cost...

newbie_user · Post by **newbie_user** » Tue Jan 22, 2013 11:09 pm

Hi Everyone,

As suggested by all of you, I've requested SAR and following are the exact details of my stay in the UK:

1) Entry Clearance - 16/03/2006 to 16/03/2008 (based on Work Permit from 16/03/2006 - 16/03/2008)

2) Left UK in Jan 2007 to India office and came back again in July 2007

3) Applied Work Permit Extension using WP1X form - 06/03/2008

4) Work Permit Extension received - 14/05/2008

5) Employer then submitted FLR(IED) on 27/05/2008 which is after my Entry clearance expiry date 16/03/2008

6) FLR(IED) approved on 04/08/2008 (Valid till 16/03/2010)

7) Applied for Tier1 (General) in October 2008 and granted till October 2011

8) Applied for Tier1 (General) Extension in September 2011 and received extension till October 2013.

Now when I applied for ILR - caseworker stated that I dont have a valid leave to remain between 16/03/2008 and 04/08/2008 and so i didnt complete 5 years of valid stay at the point of application. Hence it is refused.

The problem is employer submitted WorkPermit Extension (WP1X) before my Entry Clearance expiry (16/03/2008) but UKBA took time to process it (approved on 14/05/2008) and then FLR(IED) is applied by which time my leave expired.

Does this mean i overstayed between that period and will this affect my ILR application again?

Many thanks to everyone for help till now and will wait for response.

newbie_user · Post by **newbie_user** » Wed Jan 23, 2013 3:16 pm

Hi,

Can someone please respond to this? Thanks.

cs95tdg · Post by **cs95tdg** » Thu Jan 24, 2013 11:28 am

The WP residence period I have a doubt about is the time between 16/03/2008 & 27/05/2008. I.e. looking at the information provided it appears that you did not have valid leave to remain during this time period. To add to this, as your subsequent LTR application was technically submitted after your LTR had expired, it would have fallen under the out-of-time application category. Meaning you would not have been covered by S3C during the period between 27/05/2008 & 04/08/2008, resulting in an overall overstay period of 16/03/2008 to 04/08/2008.

According to the following WP extension guidance, employers are requested to "apply at least one month but no more than three months before the applicants current leave to remain expires". In your case it appears that your employer left the application rather late, i.e. submitted it quite close to your LTR expiry date. I.e On 06/03/2008, which was 10 days before your LTR expiry.

I haven't read the following guidance in detail, therefore will leave you and others who know more about this to either read or comment further. But based on points 125 & 127 you would not have had the right to work during the period 16/03/2008 & 04/08/2008.

http://webarchive.nationalarchives.gov. ... de0408.pdf - Page 13.

125. If a work permit extension application has been submitted, the individual may continue working with you whilst this application is being considered provided they either:
• continue to have valid leave to remain; or
• have submitted a further leave to remain (FLR) application before their existing leave to remain expires.
126. Details of how and when an individual should submit an FLR application, for the purposes of extending their existing leave in line with a work permit extension, are provided under Section 5 of these guidance notes.
127. Where neither of the conditions detailed in paragraph 125 are met, an individual should not continue to work after their leave to remain has expired whilst we consider the work permit extension application.

chetan · Post by **chetan** » Thu Jan 24, 2013 11:54 am

Hello,

I was in the exact same situation as you please see http://www.immigrationboards.com/viewtopic.php?t=21894, going by the advice I received from lawyers in 2010, the overstay that happened previous to 5 years of ILR application does not matter, so it should not affect your next application for ILR in 08/2013.

cs95tdg · Post by **cs95tdg** » Thu Jan 24, 2013 12:12 pm

Yes, that's true. Your ILR clock would have restarted on 04/08/2008, after which you appear to have had valid LTR (WP +T1G) continuously (based on the information provided). So should not have any issues in that respect. Do also ensure that you meet all other ILR requirements according to the new rules released in Dec 2012.

newbie_user · Post by **newbie_user** » Fri Jan 25, 2013 10:10 am

Thanks so much to cs95tdg and Chetan for your replies. I am a bit confident now that i will get my ILR without any hiccups this time. Its very unfortunate that FLR and WP extension both cannot be applied at the same time. And my employer delayed my WP extension so much that my initial visa expired before the decision arrived.

Also, I am out of UK for 136 days and these are just holiday trips to India to see family and friends. As per the new rules of 13th Dec 2012, are these absences allowed? or is it only work related absences which are allowed? Thanks again to everyone.

cs95tdg · Post by **cs95tdg** » Fri Jan 25, 2013 11:38 am

At a glance your absences appear fine, but do read the ILR FAQ sticky which has information on how absences are calculated according to the new rules. http://www.immigrationboards.com/viewtopic.php?t=79378

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ILR Refused - Variation of Leave

ILR Refused - Variation of Leave

Hi

Hi