Tier 1 Ex - Maintenance - Not living in UK

[Tier1Roshni]

Hi,

My husband (main applicant) and I (dependent) are on the Tier 1 General (rules applicable prior to 6 April 2010). We do not live in the UK anymore, we left in August 2012. Our leave to remain expires in April 2013. We are coming to the UK to extend our leave to remain via a premium application. I am a bit confused about the maintenance requirement for the dependent application at paragraph 44 onwards of the PBS (Dependent) Policy Guidance which says

44. If the Tier 1 Migrant ..... has been present in the United Kingdom for less than 12 months, you must show that you, the Tier 1 Migrant....have atleast £1800 to support you...
45. If the Tier 1 Migrant has been in the United Kingdom for 12 months or more, you must have £600 to support yourself.

Which of these 2 would be applicable to us? Given that we are both applying for further leave to remain, I am thinking it is Parargraph 45. Does the fact that we have not been living in the UK mean that we have not been present in the UK?

Your help is much appreciated.Many thanks!!

[mulderpf]

You will face quite a bit of difficulty extending your visa when you are not living in the country.

Since you are not using the visa issued to you for its intended purpose, your leave may be curtailed.

It would be interesting to find out how you intend on going about the logistical issues? If you manage to actually make it to the PEO and they approve your application, how long are you going to wait around for your BRP and where are you going to have it sent?

Why are you extending a Tier 1 visa when you are not using it? It will probably be phased out in future as I cannot see them leaving extensions open forever and ever, so it's unlikely that you would ever be able to claim ILR based on this. Is it really worth the effort?

The entire extension process is based on the fact that you are living and working in the UK.

[Tier1Roshni]

Many thanks for your reply. There is no residency requirement per se, so it would appear that we should be able to extend it and we know people who have. We are out of the country temporarily and intend to go back to the UK within the next 2 years. We are fully aware of the implications and consequences and have nonetheless decided to go for the extension. We are stuck on just that 1 thing. Any help on that would be much appreciated.

[mulderpf]

If you wish to press on then that's fine...whilst it's not an explicit requirement to be working in the UK when extending, it is a requirement to enter the UK for valid reasons allowed by your visa (for example, a Tier 1 General visa holder cannot use the visa as a visit visa) and you may be refused entry under paragraph 320(5) (and you will not be the first!).

Strictly according to the rules, you need to show:

£900 for main applicant as you would be applying inside the UK
£1800 for dependant as main applicant has not been in the UK for more than 12 months

Total = £2700

http://www.ukba.homeoffice.gov.uk/sitec ... ce-changes

[bubin123]

Also, do consider about the fact that you can not claim 5 points towards previous UK experience and the earning documents will be from a foreign country which could result a further verification. So, you may not get same day decision and the application will follow the postal queue which is currently has turn around time of 4 months.

[Tier1Roshni]

I am tremendously grateful for your assistance. As I said we have considered all those things and have decided to go for the visa nevertheless. The company my husband works for thankfully has an office in the UK through which the verifications can be made. I have been planning for the visa renewal for quite some time and had overlooked the fact that we might need more than £600 for the dependent application but luckily I think we can make it up to the £2700. The 5 points for UK experience is not mandatory but we will be able to claim the 5 points as more than £16 000 was earned in the UK within the 12 months period. We got our Tier 1 (General) based on the rules in force prior to the 6th of April 2010

If you can think of anything else that might be a hurdle, please say so. This is actually very helpful as it does make me more vigilant about certain issues and I can make sure that I address those on the cover letter.

Many thanks!

[mulderpf]

It's not only employer verification that may need to happen. Also bank statement verification. Remember that overseas earnings is not considered straight-forward, chances of a same-day decision is very slim.

I'm still concerned over how you will prove both when you enter the country and when you submit your application that you have entered the UK in line with the purpose of your visa?

If you are going PEO route, then there's no need for a cover letter (even with a postal application, I highly doubt the necessity of cover letters - the purpose of the application form is for the caseworker to get the relevant facts to make the decision in your case - a cover letter is simply duplication of the same thing).

[UKBALoveStory]

I am tremendously grateful for your assistance. As I said we have considered all those things and have decided to go for the visa nevertheless. The company my husband works for thankfully has an office in the UK through which the verifications can be made. I have been planning for the visa renewal for quite some time and had overlooked the fact that we might need more than £600 for the dependent application but luckily I think we can make it up to the £2700. The 5 points for UK experience is not mandatory but we will be able to claim the 5 points as more than £16 000 was earned in the UK within the 12 months period. We got our Tier 1 (General) based on the rules in force prior to the 6th of April 2010

If you can think of anything else that might be a hurdle, please say so. This is actually very helpful as it does make me more vigilant about certain issues and I can make sure that I address those on the cover letter.

Many thanks!

Also, keep in mind that if UKBA does not make the decision same day, they will keep your passport & any other docs.

[Tier1Roshni]

Many thanks again. We have both entered the country on the Tier 1 General several times while we were not living here. On my own I was not asked many questions, I was probably lucky because I have heard of people who have entered the country asa dependent while their partner weren't here and had their leave curtailed.

My husband had no problems getting in either. The Immigration Officer was slightly confused and put a business visa comment on his passport but later crossed it off and said that he needn't because he is a resident. But that probably goes to the fact that he still has some clients in the UK who he comes to meet. But logically, say we are away for a little while for personal reasons and wish to come back to the UK to take advantage of our leave to remain. Although we are not currently using it to that effect we have plans to make use of it in the future. How is that not in line with the conditions of the visa? Again there is no specific residency requirement and the system specifically provides for the computation of overseas earnings both on the initial application and the extension application which points to the likelihood that the authorities had people like us in mind when the rules were written.

Verification checks are definitely something that will most likely happen. Fortunately some of the funds we hold are in the UK and our overseas bank accounts and UK bank accounts are somehow linked.

See, because of the added complications like these, I feel and have heard from others that a cover letter normally helps in these types of cases as it helps to clear matters in terms of why we are abroad, why we are not utilising our leave to remain and what our future intentions are. And also to clarify details here and there in the evidence. I always believe that the better presented the application, the better chances of getting a prompt decision. And this is why in our particular case, a cover letter might be helpful.

If they decide to keep our passport, unfortunately we will have to withdraw the application. And this is a risk we are ready to take. I am just hoping that it doesn't happen.

Does anybody else have any views on the maintenance requirement please? Do you all think that it is the higher level? It falls down to the meaning of "being present". Does it mean "physically present"? Or being present refers to for how long the main applicant has held the Tier 1 visa.

Again I am extremely grateful. Thank you.

[Lucapooka]

The 12 months threshold for the main applicant is with regard to his initial entry and so the fact that he has not been in the UK for the past 12 months will not matter. The maintenance fees, therefore, are 900 for the migrant + 600 for the dependant.

But, there is no way you will get a same decision based on overseas income! By all means enter the UK and apply at the PEO, but unless you have a place to stay you should have a hotel booked for at least 2 months, as that is how long you may have to wait for your renewals (and passports) to be emitted.

[Tier1Roshni]

Lucapooka, how can you be sure about the maintenance for the dependent? I want to make sure, as it will be a bit of a process to cover the additional maintenance if I have to as I will have to order statements from overseas (a 3rd country)

Many thanks!!

[Manka10]

still has some clients in the UK who he comes to meet. But logically, say we are away for a little while for personal reasons and wish to come back to the UK to take advantage of our leave to remain. Although we are not currently using it to that effect we have plans to make use of it in the future. How is that not in line with the conditions of the visa? Again there is no specific residency requirement and the system specifically provides for the computation of overseas earnings both on the initial application and the extension application which points to the likelihood that the authorities had people like us in mind when the rules were written

Tier 1 is given on the premise that you will make UK your home and will be based here even though earnings can be in any country but not the other way around where you are based in another country & come to UK to meet clients, there is a high probability that if you enter UK stating that reason then your Tier 1 will be curtailed as a business visa is sufficient for visits like those

clearly your circumstances have changed if you are not based in UK anymore and your argument that you plan to use the LTR in future doesnt hold much water even though its not written in black and white anywhere but I have seen Tier1s getting curtailed if the purpose of entry is not in line with the intention to live in UK

very slim chance of getting a decision on same day and if you withdraw the application then your Tier 1 is as good as gone

if you are really keen on extending then genuinely try to move back to UK now, no point in saying that you will use your Tier1 later if its extended

[Lucapooka]

Where the application is connected to a Tier 1 Migrant [...] who has been in the UK for a period of less than 12 months, there must be £1800 in funds.

I am a student of pure logic. I am interpreting it as meaning a migrant who entered the UK less than 12 months ago. I am not interpreting it as meaning the migrant has to have remained present in the UK for the 12 months prior to the application under discussion.

[mulderpf]

The 12 months threshold for the main applicant is with regard to his initial entry and so the fact that he has not been in the UK for the past 12 months will not matter. The maintenance fees, therefore, are 900 for the migrant + 600 for the dependant.

I completely disagree here. The question on the application form asks "How long has the PBS main applicant been in the UK for?"; not "How long ago did the PBS main applicant first enter the UK".

Appendix E also only refers to the period the main applicant has been in the UK for, not the period since entry.

[Lucapooka]

I have quoted the one and only text from E that refers to 12 months and, unfortunately, it's not an elaborate phrase. Furthermore, the application has no regard to absence. The applicant might have had a residence permit for many years and been habitually absent. Nevertheless, the fact that they are not a new entrant to the UK of less than 12 months would qualify the dependant for the reduced maintenance.

[Tier1Roshni]

Lucapooka thank you. I actually agree with your interpretation and this is what I took it to mean. But I am just worried that I may be making a mistake. I guess I'll know once I make the application.

If Tier 1 is given on the basis I will make the UK my home, it is also given on the premise that I will work in the UK and pay taxes. I believe that the latter is more important. If I am allowed to work and pay taxes elsewhere and allowed to claim points on the basis of those earnings, I see little point in them taking issue with the fact that I am not living in the UK.

We genuinely intend to come back to the UK but just cannot do so immediately - reasons that I will explain in a cover letter.

Many thanks

[mulderpf]

The confusion is caused because the visa is not being used for its intended purpose!!

A Tier 1 General visa is for the purpose of living and working in the UK and a PBS Dependant visa is for the purpose of a family member joining a PBS migrant in the UK.

If we go by Lucapooka's logic, then I never really had to worry about increased maintenance for my applications, because 10 years ago, I spent 2 years in the UK.

Back to the OP's other concerns:

The immigration rules state:

This route is for highly skilled migrants who wish to work, or become self-employed, to extend their stay in the UK.

When you seek entry into the UK for a different purpose (e.g. not working here), then your visa may be cancelled.

6. Paragraph 320(5) – Visa nationals – failure to produce a valid entry clearance issued for the purpose for which entry is sought
This Paragraph authorises an officer to refuse entry to a visa national who fails to present a valid and current visa, or produces a visa that was not issued for the purpose for which entry was sought. There are certain exceptions, e.g. visa nationals who are in transit and fulfil the requirements of the Transit Without a Visa concession (TWOV).

[Tier1Roshni]

Ok, still not very direct though as nothing says that one cannot leave and enter the UK at wish if they are on a Tier 1 and that they HAVE to live and work in the UK for the duration of their visa.

What if at the border we tell them that we are here for a visit and have an appointment with the UKBA for a leave to remain extension?

[Tier1Roshni]

just something that occurred to me 320(5) talks about entry clearance, what we have is leave to remain. As far as the purpose goes we wish to work in the UK, just not now...

[mulderpf]

You may be lucky, you may be not.

The point is, you are trying to bend the rules to suit a situation for which it wasn't intended for. The same way that members of this forum interpreted the rules differently, so can the people granting you entry into the country and the people who extend your visa. It all depends on their interpretation.

I have pointed out several times to you that there are general grounds for refusal is you decide you want to leave and enter the UK at wish. Whether it is applied consistently is a different story altogether, but there is indeed something saying that you should use a visa for its intended purpose.

There are too many scenarios and variables to cover every eventually and this is the reason they state what the purpose of each visa is.

Here's someone who had their visa cancelled because they were using it as a visit visa instead of it's intended purpose: http://immigrationboards.com/viewtopic.php?t=93044

[Lucapooka]

I firmly believe that as long as you score points you will be granted an extension. The category was set up in way that permits absence and overseas income and failed to put any limits on the scope of that - perhaps another reason for its demise!). What I don't believe is that you can do this at the PEO (and expect an immediate decision) in your particular circumstances.