Tier 2 - Under Appeal, when can I make a fresh application?

[chbagan]

Hello all,

Thanks for reading, and would be great to get your advice.

Currently my Tier 2 (Sponsored) is under appeal. I have had the hearing and the decision is pending.

My initial application was refused due to a wrong job code being entered on my Certificate of Sponsorship.

The judge before leaving clearly said 'I am not saying the decision is against you, but if I were you I would seek legal advice and think about Article 3C.

I have gone through article 3C which clearly states that leave to remain is extended even though your Visa expires until you have exhausted all your appeals.

Could anyone please let me know if I can apply for a fresh application will all the updated documents? If I can then
1. When can i apply for the fresh application?
2. Is it within 28 days of receiving my decision?


Would be great if anyone could help out.

Thanks!

[sarimapa]

Hi

I cannot advice you what tribunals decision would be, but here are the steps to follow if in case appeal is unsuccessful:

You can make a fresh application immediately after you receive tribunals decision, and the fresh application must be made within 28 days.

Best way to apply is through Premium service. It will cost you about £900.

Keep yourself ready with the documents and correct job code for the new application. The day you receive your decision, ask you employer to issue you a new CoS with the correct job code and submit your application online using Premium Service (do not apply by post, it will take longer than 28 days). Book your appointment within the 28 days period, as soon as possible. The appointment must be 48 hours after you submit online.

Hope this helps.

[chbagan]

Hi Sarimapa,

Thanks so much for your advice!

I think your suggestion is valid as this is what the judge meant by think about 3C. As my current leave to remain expired in January, once i get my decision i will have 28 days to apply again and not be deemed as an overstayer.

Although I have few quick questions -

1. Obviously I will not get my Passport back immediately, can I apply without my passport as it is already with them?
2. Do you have any reference where it says i can apply within those 28 days as I would like to show it to my HR dept back at my work place.

Would be great to get your help once again!

Cheers!

[vinny]

once i get my decision i will have 28 days to apply again and not be deemed as an overstayer.

That's partially incorrect. You may have 28 days to apply again. However, Leave is extended under Section 3C/3D until the appeal is finally determined, withdrawn or abandoned. If your appeal ultimately fails, then Section 3C/3D lapses. When Section 3C/3D lapses, you will become an overstayer.

[chbagan]

That's partially incorrect. You may have 28 days to apply again. However, Leave is extended under Section 3C/3D until the appeal is finally determined, withdrawn or abandoned. If your appeal ultimately fails, then Section 3C/3D lapses. When Section 3C/3D lapses, you will become an overstayer.[/quote]

Hi there, thanks for the clarification!

Could you please explain - You mentioned 28 days to apply again, but 28 days since when?

Thx!

[vinny]

When Section 3C/3D lapses.

[chbagan]

So technically if i become an overstayer and apply with a fresh application, won't my application be outright rejected?

Thx!

[vinny]

245HD(p).

[sarimapa]

You current visa under section 3C lapses the day you receive your tribunals decision and the decision is unsuccessful. You start overstaying then.

But if a fresh application is made within the 28 days of overstaying, then the visa application will be considered as an in-time application. Any application made after the 28 days period is a straight rejection.

It is difficult to find the reference where it says you can apply within 28 days. I couldn't find the 2nd time I was looking for it.

There was one guy in here, who's appeal was refused too. But he made a fresh application within 10-15 days and got the visa.

Make sure you include a letter from yourself and your employer explaining the fault in your previous visa CoS. Also include in your letter, that the Passport is with them.

Hope this helps.

[chbagan]

Thanks Vinny and Sarimapa! The clarification really helps

[chbagan]

Also guys, do you have any idea about the cooling off period?

I was switching from Tier 4 to Tier 2, and in case the application is unsuccessful I would have to go back to India and apply.

Technically I would be then applying for a fresh Tier 2 application, never having been on Tier 2 visa before.

So would the cooling off period apply? As i believe it only applies when extending tier 2 visas or Intra-company transfers!

Thanks once again for all your help!