Visa Expires still waiting for Tier 2 sponsor Licence

kkhan007 · Post by **kkhan007** » Fri Nov 23, 2012 3:36 pm

Hi Guys..

My company applied for licence since July, they refuse application in November and we submit new application for new fees of £1500 and the are in contact with HR manager and put case in urgent consideration.

My visa has expired on 15-Nov-2012,I dont know what to do , I phone UKBA and they said you can make application with in next 28 days of your visa expires, now visa has expired and me and my company still waiting for licence.

Don't know what to do? Shall i make Tier 2 application without sponsor licence?

Any one help me out please.

Post by **Lucapooka** » Fri Nov 23, 2012 3:43 pm

Well, you can't apply any later than 28 days from the expiry date of your previous leave, and if you apply from outside the UK, your application will be subject to the RLMT or any cooling off periods that may be applicable (depending on categories and circumstances).

The 28 day cut-off is a new policy so I don't know if applying without a license will be acceptable if, before the decision, the COS is emitted. Previously, an applicant would have simply waited for the COS and applied without extant leave.

kkhan007 · Post by **kkhan007** » Fri Nov 23, 2012 4:54 pm

RLMT is not apply on my case, coz I am Fresh graduate and got Job on Tier 4 visa 4 month before my visa expires. As you know my visa has expired now what will be consequences if I apply Tier 2 visa with out licence?
UKBA sent us email a month ago your application is in Urgent process mode.

Help me out please

Post by **Lucapooka** » Fri Nov 23, 2012 6:29 pm

kkhan007 wrote: As you know my visa has expired now what will be consequences if I apply Tier 2 visa with out licence?

Is that the same question as the one you asked in the first place?

RLMT will apply to you if you are compelled to apply for this outside the UK.

Post by **Greenie** » Fri Nov 23, 2012 6:57 pm

It is not possible to apply for leave to remain if your tier 4 leave has expired. In order to switch from tier 4 to tier 4 leave you must have current leave.

See 245HD (b)(ii)

(ii) have current entry clearance, leave to enter or leave to remain which has not expired, as:(1) a Tier 4 Migrant(2) a Student(3) a Student Nurse(4) a Student Re-Sitting an Examination(5) a Person Writing Up a Thesis(6)...

kkhan007 · Post by **kkhan007** » Fri Nov 23, 2012 8:17 pm

So what should I do? I have seen this link. Border agency know this thing that my visa has expired in our email correspondence and one of their member suggested us to make application without licence. and previously on 13-Nov before my visa expire one of UKBA team member suggest us you can wait upto 28 days your visa expires.

What should I do as they are suggesting our HR manager to apply visa without licence and they are put our case in Urgent mode.

kkhan007 · Post by **kkhan007** » Fri Nov 23, 2012 9:04 pm

Guyzzz

help me out plzzz...

Post by **manci** » Sat Nov 24, 2012 3:53 pm

please clarify what your visa was that expired on 15 Nov: T4 or T1 PSW?

Post by **manci** » Sat Nov 24, 2012 4:29 pm

Greenie wrote:It is not possible to apply for leave to remain if your tier 4 leave has expired. In order to switch from tier 4 to tier 4 2 leave you must have current leave.

See 245HD (b)(ii)
(ii) have current entry clearance, leave to enter or leave to remain which has not expired, as:(1) a Tier 4 Migrant(2) a Student(3) a Student Nurse(4) a Student Re-Sitting an Examination(5) a Person Writing Up a Thesis(6)...

245HD (p) has recently been added to the Immigration Rules:

Quote wrote:
(p) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.

can 245HD(p) be taken to apply irrespective of the wording of 245HD(b)(ii)? any comment?

kkhan007 · Post by **kkhan007** » Sat Nov 24, 2012 5:14 pm

I am on Tier-4 which expired on 15-Nov-2012

Post by **geriatrix** » Sat Nov 24, 2012 6:41 pm

manci,

I believe yes. My reason - 245HD(p) does not state that it does not apply to 245HD(b)(ii).

Post by **Greenie** » Sat Nov 24, 2012 6:59 pm

I disagree. If para (p)applied irrespective of (b)(ii) then there would be no point in having para (b) (ii) . The rules clearly make a distinctions between switching from tier 4 and switching from other categories, and they require that the tier 4 leave is current.

Post by **geriatrix** » Sat Nov 24, 2012 7:23 pm

OK, time to change sides!

I believe Greenie's opinion is the accurate one, else 245HD(b)(ii) would also have stated ....."An applicant who has, or was last granted leave ....."

Post by **manci** » Sat Nov 24, 2012 7:32 pm

or, perhaps, when they added 245HD(p) they just forgot to alter 245HD(b)(ii)....

Post by **geriatrix** » Sat Nov 24, 2012 7:40 pm

The thing is, such an argument will not stand in court .. the rules are as they are specified ... even if someone forgot to include the change in a statement of changes to immigration rules.

kkhan007 · Post by **kkhan007** » Sat Nov 24, 2012 8:02 pm

Bit uncertainty..!!

Does it make any difference in application that my company sent my scanned visa and other detail to HO 15 days before my visa expires and they know everything about me.
we received email in Sept stated the following:

• A migrant currently employed by the prospective sponsor or switching to the prospective sponsor, who has valid leave expiring in 10 working days (or has an urgent need to change their leave status within 10 working days). Ideally provide evidence of expiry of leave in your e mail. For example a scanned copy of the relevant vignette / Biometric Residence Permit

Post by **manci** » Sat Nov 24, 2012 8:29 pm

kkhan007 wrote:Bit uncertainty..!!

Does it make any difference in application that my company sent my scanned visa and other detail to HO 15 days before my visa expires and they know everything about me.
we received email in Sept stated the following:

• A migrant currently employed by the prospective sponsor or switching to the prospective sponsor, who has valid leave expiring in 10 working days (or has an urgent need to change their leave status within 10 working days). Ideally provide evidence of expiry of leave in your e mail. For example a scanned copy of the relevant vignette / Biometric Residence Permit

yes, it probably does make a difference. The fact is that your company applied for the sponsor licence in July, got refused (in November?) and re-applied in November. There must have been some deficiency in the July application which they hopefully remedied in the November re-application but without knowing the details one cannot be certain that the new licence application will be granted.

As you can see from the previous posts there is some ambiguity about the switching rules from T4 to T2 which will hopefully be resolved soon. 28 days from 15 November (when your visa expired) is 13 December and by that time hopefully UKBA will have made a decision about the company's sponsor licence application. They should send another request to UKBA for urgent treatment on 29 November enclosing yet again a copy of your expired visa (if there is no news by then).

Post by **manci** » Sat Nov 24, 2012 8:42 pm

sushdmehta wrote:The thing is, such an argument will not stand in court .. the rules are as they are specified ... even if someone forgot to include the change in a statement of changes to immigration rules.

Both (b) and (p) are sub-clauses of current Immigration Rule 245HD (they are not just in the statement of changes) and both are requirements for leave to remain. In my reading there is contradiction between the two sub-clauses, that is why I suggested that they might have omitted to modify (b) when they introduced (p). If a judge also thinks that there is contradiction/ambiguity he/she is likely to rule in the migrant's favour.

kkhan007 · Post by **kkhan007** » Sun Nov 25, 2012 1:00 pm

Thanks , your reply is satisfactory.

I need to ask you one more thing, my HR manager spoke to Customer service Adviser at Tier 2 licence section last Friday, the lady said as your licence is in under urgent treatment so should apply tier 2 visa for your employee.

What will you suggest, should I wait for licence until my 28 days leave expires Or I should apply Tier-2 visa ASAP without sponsor licence.

Thanks.

kkhan007 · Post by **kkhan007** » Tue Nov 27, 2012 12:30 pm

any reply plzzz..????

Post by **manci** » Mon Dec 03, 2012 7:12 pm

Sushdmehta, Geenie

I received the following clarification from HO Migration Policy (Sheffield):

"the requirement for an applicant switching from Tier 4 to Tier 2 to have current valid leave overrides the general rule relating to the 28 day period. A switching application would be refused if they did not have current leave."

However, I still think that the addition of sub-clause (p) introduced an ambiguity into 245HD and if a judge also thinks so he/she is likely to rule in the migrant's favour on appeal.

Post by **manci** » Wed Dec 05, 2012 11:47 am

manci wrote:Sushdmehta, Geenie

I received the following clarification from HO Migration Policy (Sheffield):

"the requirement for an applicant switching from Tier 4 to Tier 2 to have current valid leave overrides the general rule relating to the 28 day period. A switching application would be refused if they did not have current leave."

However, I still think that the addition of sub-clause (p) introduced an ambiguity into 245HD and if a judge also thinks so he/she is likely to rule in the migrant's favour on appeal.

There is further confirmation that 245HD(p) does not apply to migrants switching from T4 to T2G:
http://www.ukba.homeoffice.gov.uk/sitec ... r-1oct2012

Post by **manci** » Thu Mar 14, 2013 6:30 pm

Sushdmehta, Greenie

What I reckoned was an ambiguity/conflict between the present 245HD(b)(ii) and 245HD(p) has been recognised/resolved in the Statement of Changes laid before Parliament today, coming into effect on 6 April:

53. In paragraph 245HD(b)(ii), delete “have current entry clearance, leave to enter or leave to remain which has not expired, as:” and substitute “have, or have last been granted, entry clearance, leave to enter or leave to remain as:”.

So 245HD(p) prevailed!

Post by **vinny** » Sat Mar 16, 2013 8:13 am

kkhan007 wrote:Dear all

My visa has been refused from T4 to T2 G coz I applied my visa 15 days after my T4 leave expires. I gain all the 70 points but my refusal letter said your visa has been refused on "Non Point Reason of refusal" (245HD(b)).

UKBA keep my documents including passport , what is the best suggestion in this situation.

manci wrote:have you been given right to appeal?

what was the date of your application?

kkhan007 · Post by **kkhan007** » Sat Mar 16, 2013 11:56 am

manci wrote:have you been given right to appeal?

what was the date of your application?

[/quote]

There is no appeal right and I submitted my Application on 28-Nov-2012

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Visa Expires still waiting for Tier 2 sponsor Licence

Visa Expires still waiting for Tier 2 sponsor Licence