study cap 5 years

[n8net]

Hi,

one of my friend got his student visa application rejected because of 245(ha), exceeding 5 yr cap.

However, the letter is not clear how the study cap is calculated . my friend's couple of earlier visa's were curtailed (due to sponsor losing licence),

so surely, the period during which my friend was between different colleges should be excluded ?

any1 with prior experience ? he has not got appeal . only admin review within 14 days.. so any quick help much appreciated.

thanks

[n8net]

any1 ?

[riz1986]

without information abt courses,visa dates etc hw u can expect a reply.u merely stated that ur friend refused due to 5yr study cap n dats it.
either upload da refusal letter or provide more info for a reply.

[n8net]

u dont need the complete details to answer this .

just need to know if visa was issued for x months and then visa was curtailed after y months. the period that should be taken into account for calculating 5 yr period is (x-y) and NOT x ?

also is there anyone who was in the same situation ?

I can provide details after getting it off him if it is not enough for the forum to respond.

thanks

[sah10406]

See http://www.ukcisa.org.uk/International- ... -on-study/

[n8net]

hi,

thanks..but it does not say anything about curtailment ? also am I right in saying HO rules is not clear in this to o?

[sah10406]

If leave has been curtailed, there is no leave to count. All relevant leave up to the curtailment date will be counted, even if the student was not studying.

[n8net]

yea..I thought so too...but do u have a link for HO ruliing (may be case worker manual) to support this..as we might need that for the admin review which is the only option we have.

just to make it clear, my friends VISA was curtailed twice (as a result of college closing) during his student life in the UK, and HO has not taken this into account when the calculated the 5 yr cap.

also, when he is between applications to different colleges, the time he spent on section 3 should also be exlcuded from the calculation ?

do u know any1 who was in a similar position recently with only the admin review as an option and no appeals ?

thanks

[sah10406]

It is all in the Immigration Rules and the Tier 4 Modernised Guidance.

If he was in the UK with Tier 4 leave granted for degree level study, including Tier 4 leave extended under category 3C, that is Tier 4 leave and it counts towards the cap.

When I said that the period after the curtailment date would not be counted, that was assuming the migrant became an overstayer, without any Tier 4 leave to count. If they made a new application before curtailment, they continue to have Tier 4 leave by way of 3C, and so it is counted.

The only periods that can be deducted are the short extra periods at the beginning and end of student leave, and any time the migrant did not have Tier 4 leave or student leave. Everything else counts.

It sounds like he always made new Tier 4 applications before his curtailment date? If so, all his leave counts.

[n8net]

ok so if the college closed down in Jan and HO only sends the curtailment letter in November and my friend applies by December, his visa is counted towards November even though he stopped studying by Jan.

that seems harsh..so effectibely he pays for HO delay.. surely there is a point to be had ? is judicial review allowed stil ?

[sah10406]

ok so if the college closed down in Jan and HO only sends the curtailment letter in November and my friend applies by December, his visa is counted towards November even though he stopped studying by Jan.

Yes. He was in the UK with Tier 4 leave from January to November. Having chosen to stay in the UK for almost a full year on a Tier 4 visa without studying, rather than going home when he stopped studying, that time counts towards the cap.

that seems harsh..so effectibely he pays for HO delay.. surely there is a point to be had ? is judicial review allowed stil ?

I disagree that it is harsh. If he had left the UK when he stopped studying, he may now still have some time left under the cap. He needs to bear some responsibility for this situation. Sorry.

[n8net]

but you could argue that if HO has sent the letter sooner, his non-study period would have reduced leaving him enough time on his cap to complete the studies ?

I would like to know if any1 else was in this situation and won only via admin review ?

[sah10406]

Well, you could also argue that if your friend had joined a new course as soon as his previous college was revoked, rather than do nothing for almost a year until he was forced to by his leave being curtailed, he may not be in this position now.

[n8net]

ah..I was not aware that you could actually switch to a new college before the curtailment letter ?

also, the curtailement letter itself suggested some colleges, so looks like HO realise then he had limited leave remaining in his cap ?

[sah10406]

Most of the curtailment letter is generic, including the basic information on future options. Only the curtailment date is tailored to the applicant.

[n8net]

agreed.. but could he actually would have changed his sponsor during the period his sponsor licenece was revoked and curtailment letter arrived ? this period IMHP should be excluded from the calculations for study cap.

[sah10406]

could he actually would have changed his sponsor during the period his sponsor licenece was revoked and curtailment letter arrived ?

Yes. A Tier 4 migrant can change their sponsor institution whenever they wish. People often do this.