Police caution not declared

[rchadha123]

Hi
I had initially applied for ILR (in the post) but then varied my application to Tier 2 general as I had to travel for work urgently. However I have now been refused Tier 2 general visa as I did not declare the police caution received in 2011.
It was an error on my part but I had previously declared this caution in my ILR application (which was varied).
Do I stand a chance of winning an appeal against this decision or not? Also will I be able to apply for ILR once I leave the country?

Thanks for your replies

[CR001]

Do I stand a chance of winning an appeal against this decision or not?

Have you been given the right of appeal? Appeal rights were massively reduced, especially in country appeals. What are you going to appeal if it was your error?

Also will I be able to apply for ILR once I leave the country?

You can't apply for ILR from outside the UK. It is only an in country application.

If you varied your ILR application to Tier 2 G, it is a different form and different department and you should have declared the caution.

[Frontier Mole]

If you leave the UK you will struggle to return as your error will no doubt be put down as an attempt at desception. Did your refusal mention anything about the failure to declare the caution as a material fact and give any references to the immigration rules. Para number 322(2)?

[rchadha123]

Thank you both

My refusal mentions 322 1a

I would appreciate any suggestions

[CR001]

It is a mandatory refusal and likely due to you declaring on one form and not declaring on the other.

The applicant has made false representations or submitted false documents in their current application or in order to obtain documents from the Secretary of State or a third party required in support of the application

What is the exact wording of the refusal (minus personal details)?

[rchadha123]

The wording is as follows:

However, you did not declare this caution in your application form.

As material facts were not disclosed in relation to your application, it is refused under paragraph 322(1A) of the Immigration rules.
For the above reasons, I am also satisfied that you have used deception in this application.

Therefore you do not satisfy the requirements of the Immigration Rules for this category and it has been decided to refuse your application for Leave to Remain as a Tier 2 (General) migrant under paragraph 322(1A) and paragraph 245HD(a) of the Immigration Rules.

[CR001]

So it is exactly as Frontier Mole said, deception or not disclosing material facts in the Tier 2 application.

[Frontier Mole]

Are you still in the UK?

[rchadha123]

Yes

[rchadha123]

Following on the paragraph that I quoted from the refusal letter, the next paragraph says:

"This means that any future applications for entry clearance or leave to enter the UK you make will be refused under paragraph 320(7B) of the Immigration Rules..."

Does this mean I can make a new application for ILR while I am still in the UK? Or will it be automatically refused because of the reasons for refusal on this Tier 2 application?

[CR001]

I am not sure if you can.

Do you have valid leave?

If not, when did your visa expire?

[rchadha123]

No I don`t have valid leave.
Visa expired in March.
I applied for ILR in March (before the visa expired) and varied my application in May. Now I have received rejection letter at the beginning of June.

[CR001]

And likely no appeal rights either or AR process.

If you don't have valid leave, then I suspect you cannot apply for ILR. Wait for others to comment though.

[rchadha123]

The letter states I can apply for AR as I am within the 14 day period

[CR001]

AR is if HO made and administrative error, which in your case, they did not so you are unlikely to be successful with AR. This also does not invoke section 3C cover as far as I am aware.

[rchadha123]

Thanks CR001

I read the guidance on 3C and I have pasted below the bits which should be applicable to my circumstances:

Pending decision on application
A person will have section 3C leave if:
• they have limited leave to enter or remain in the UK

Pending Administrative Review
Section 3C leave continues during any period when:
• an administrative review could be sought

If I have section 3C, does it mean I can still apply for ILR? Or will it be a straight forward refusal due to the Tier 2 refusal?

[Frontier Mole]

Do the AR on the basis that there was no attempt at deception on the basis you had fully declared the caution in your ILR.
There is a part in the caseworker guidance that states... If the information was not disclosed but even if it had been the outcome would not have been different.
You have a valid argument that it is a genuine error on your behalf BUT you did declare it in your ILR application. It will not be a guaranteed AR win by any means but it will potential knock out the deception which is a major barrier going forward.

[rchadha123]

Thanks Frontier Mole

I will apply for AR and hopefully later still be eligible for ILR after the result of AR

[rchadha123]

While preparing my AR, I found the below:

https://www.gov.uk/government/publicati ... -sentences

RFL10.3 states "Please note that a caution is not a conviction. It is an out of court disposal which is recorded on an individual’s criminal record. Since it is not a conviction the applicant should not be refused under paragraph 320(7A) if they fail to declare it on the application form."

I also checked that 320(7A) is identical to 322(1A) except, 320 is applicable to entry clearance and 322 is applicable for leave to remain.

My visa was rejected on the basis of 322 (1A) so can I argue that my visa should not have been refused?

[rchadha123]

Frontier Mole / CR001 your guidance on the above question will be very much appreciated

[rchadha123]

Dear All

Any views on my above query?

Thanks

[CR001]

Do the AR on the basis that there was no attempt at deception on the basis you had fully declared the caution in your ILR.
There is a part in the caseworker guidance that states... If the information was not disclosed but even if it had been the outcome would not have been different.
You have a valid argument that it is a genuine error on your behalf BUT you did declare it in your ILR application. It will not be a guaranteed AR win by any means but it will potential knock out the deception which is a major barrier going forward.

You have been given good advice by Frontier Mole. Suggest follow it rather than dig around looking for info to 'make it work' in your favour.

[rchadha123]

Hi CR001

This is the first time I am applying for AR and thought that I would need to cite some part of the immigration rules in order to counter the refusal. So was looking for more details on the below suggestion in the immigration rules / caseworker guidance :

There is a part in the caseworker guidance that states... If the information was not disclosed but even if it had been the outcome would not have been different.

I I appreciate Frontier Mole`s suggestion and do not mean to disregard it but just wanted to ensure I do not make any more mistakes than I already have!

If I do not have to cite any of the rules, then I will just write the above formally.

Thanks again

[Purdamit]

Hi CR001

This is the first time I am applying for AR and thought that I would need to cite some part of the immigration rules in order to counter the refusal. So was looking for more details on the below suggestion in the immigration rules / caseworker guidance :

There is a part in the caseworker guidance that states... If the information was not disclosed but even if it had been the outcome would not have been different.

I I appreciate Frontier Mole`s suggestion and do not mean to disregard it but just wanted to ensure I do not make any more mistakes than I already have!

If I do not have to cite any of the rules, then I will just write the above formally.

Thanks again

have you applied for Admin Review and have you received the decision back or are you still waiting for the AR decision.

[Purdamit]

Hi CR001

This is the first time I am applying for AR and thought that I would need to cite some part of the immigration rules in order to counter the refusal. So was looking for more details on the below suggestion in the immigration rules / caseworker guidance :

There is a part in the caseworker guidance that states... If the information was not disclosed but even if it had been the outcome would not have been different.

I I appreciate Frontier Mole`s suggestion and do not mean to disregard it but just wanted to ensure I do not make any more mistakes than I already have!

If I do not have to cite any of the rules, then I will just write the above formally.

Thanks again

have you applied for Admin Review and have you received the decision back or are you still waiting for the AR decision.

i ask you these question coz i am in the same boat as you.