ILR applied on tier 1 general ( amendments )

[TQ123]

Hello everyone!

I have applied for Tier 1 general in 2011, I was in the category of people who need to earn £35,000/- plus per anum. By then since I was working, most of the salary was covered by my annual pay and the rest by self-employment.

I successfully get an extension and got 3 years more visa. After getting extension I have opened a company in 2014 and have applied for ILR on 13, June 2016.

I have paid taxes every year and maintained accounts well , in January ,2016 my auditor (who is managing my accounts since 2013 ) has advised me to get SA 302 for the last five years and to check everything. I received them in the last week of January, 2016. After checking SA 302 I came to know, that they guy who helped me in the first two years of my tier 1 general returns either him or someone else has used my account and changed the amounts and got £2500 refunded from HMRC.

I was completely shocked as I didn’t received any mail or any notification from HMRC then, However my annual pay was still £35,000/- and over in the first two years. I had a long meeting and discussion with many friends and accountants and they all asked me to inform HMRC about the situation and request them to correct the returns for the first two years ( 2011 and 2012), before I apply for my ILR.

So, considering that it was the right thing to do, I applied my case in HMRC in February with all the evidences and proves that I had paid taxes and have no knowledge of refund and amendments made. I even asked them to check, to whom they have refunded the money and why? (but that’s was I thought I could take it further after getting my amendments )

Finally, after nearly 5-6 months of long wait and many follow ups letters to HMRC , they finally have amended my returns to the correct returns and I have paid the additional outstanding tax for 2011 & 12 ( again). As for now, my priority was to get the accounts sorted and get ILR which was the main concern.
I have paid taxes and filed my returns on time throughout the last 5 years , unfortunately I was a victim of that accountant who changed my returns and have refunded the amount for the first two years, as I said because of that I ended up filing up amendments for 2011/ & 012.

My questions are :

1) I am really concerned about my ILR , since I have submitted my case in June and after doing biometrics I haven’t heard anything back yet ?
2) Considering my situation, what are my chances of getting an ILR?
3) Since my all taxes are paid and I have cleared all the outstanding taxes which were outstanding after amendments, would it create any issue / problem?
4) I have kept the required annual salary above £35,000/- throughout the last five years , would it be helpful in my case ?
5) If they refuse my case , are there any options for me to take it further for appeal and win it?

Apologies for the length of this, I thought if I explain the whole situation. You would be in better position to answer my query.

Thanks for your replies in advance.

[monty87]

1) I am really concerned about my ILR , since I have submitted my case in June and after doing biometrics I haven’t heard anything back yet ? Its too early to say anything yet, it can take upto 6 months on postal applications.

2) Considering my situation, what are my chances of getting an ILR? Looking at consistent refusals on late amendments and what HO class as retrospective declaration of earnings before ILR, they may well refuse it. However, it will still depends how well you have explained your situation and supporting evidence to disclose material facts related to amendments and discrepencies.

3) Since my all taxes are paid and I have cleared all the outstanding taxes which were outstanding after amendments, would it create any issue / problem? Fact that you have paid outstanding tax and cleared any discrepancies prior to submitting ILR will be supportive in your case. You have brought discrepancy to Home Office attention and provided supporting evidence of errors. HO can still create an issue that it is not a credible explanation.

4) I have kept the required annual salary above £35,000/- throughout the last five years , would it be helpful in my case ? It does not really matter. HO is concerned with income declared to HO and HMRC is above threshold and consistent with HMRC with tax paid on initial, extension and ILR applications.

5) If they refuse my case , are there any options for me to take it further for appeal and win it? You have good chance to win in JR.

[TQ123]

1) I am really concerned about my ILR , since I have submitted my case in June and after doing biometrics I haven’t heard anything back yet ? Its too early to say anything yet, it can take upto 6 months on postal applications.

2) Considering my situation, what are my chances of getting an ILR? Looking at consistent refusals on late amendments and what HO class as retrospective declaration of earnings before ILR, they may well refuse it. However, it will still depends how well you have explained your situation and supporting evidence to disclose material facts related to amendments and discrepencies.

3) Since my all taxes are paid and I have cleared all the outstanding taxes which were outstanding after amendments, would it create any issue / problem? Fact that you have paid outstanding tax and cleared any discrepancies prior to submitting ILR will be supportive in your case. You have brought discrepancy to Home Office attention and provided supporting evidence of errors. HO can still create an issue that it is not a credible explanation.

4) I have kept the required annual salary above £35,000/- throughout the last five years , would it be helpful in my case ? It does not really matter. HO is concerned with income declared to HO and HMRC is above threshold and consistent with HMRC with tax paid on initial, extension and ILR applications.

5) If they refuse my case , are there any options for me to take it further for appeal and win it? You have good chance to win in JR.

Thanks for your replies .

Just in case if they refuse and it goes to appeal , will i still have a right to work ? till the final decision ?

[CR001]

Unlikely you will have appeal rights as these have been massively reduced.

You will likely have an option for Administrative Review or JR only.

[monty87]

Just in case if they refuse and it goes to appeal , will i still have a right to work ? till the final decision ?

HO don't normally give appeal right on tier 1 general ILR applications. Only option is judicial review and administrative review by home office.

From 6th April 2015, Immigration Appeal under New Immigration Act 2015 does not provide automatic extension of migrant’s visa conditions while they are undergoing appeal process as it used to be in pre-Immigration Act 2014. You have no right to live and work in the UK while you're waiting for JR. However, you can make cost claims of employment loss, legal fee to HO if JR is successful and HO can also claim their legal fee if they win.

[TQ123]

Just in case if they refuse and it goes to appeal , will i still have a right to work ? till the final decision ?

HO don't normally give appeal right on tier 1 general ILR applications. Only option is judicial review and administrative review by home office.

From 6th April 2015, Immigration Appeal under New Immigration Act 2015 does not provide automatic extension of migrant’s visa conditions while they are undergoing appeal process as it used to be in pre-Immigration Act 2014. You have no right to live and work in the UK while you're waiting for JR. However, you can make cost claims of employment loss, legal fee to HO if JR is successful and HO can also claim their legal fee if they win.

Thanks for your reply .

The Tier 1 General granted around 2011 , should come under the rules and immigration act which were in practise then. I had a chat with one of the immigration lawyer yesterday and that was what he informed me. The new changes to immigration act 2015 /2015 are only applicable to the individuals who got their applications granted after or around that period. ( I don't know if that's right or not , but i knew that the case is dealt usually under the immigration act the year in which it was granted ) . If he is right , then i should hold a right to appeal.

[CR001]

The Tier 1 General granted around 2011 , should come under the rules and immigration act which were in practise then. I had a chat with one of the immigration lawyer yesterday and that was what he informed me. The new changes to immigration act 2015 /2015 are only applicable to the individuals who got their applications granted after or around that period. ( I don't know if that's right or not , but i knew that the case is dealt usually under the immigration act the year in which it was granted ) . If he is right , then i should hold a right to appeal.

No, this is not correct. It would only apply for an extension of a limited leave to remain visa NOT for ILR which is a different set of rules.

[iworker]

for that person to call himself as immigration lawyer is a farce. i hope you didnt had to pay to listen to him.