Leave outside the rules LOTR

[Tluv]

Hi everyone,

I have been following this forum since 2009 but decided to register today, please does anyone have understanding of the rules guiding grant of leave outside the rules?

[Casa]

Welcome to the forum.

You're going to have to give us more information on your situation unless you are expecting members to guess.

[Tluv]

Well, I will try to explain as much as I could.

I have been in UK for 8years and 10 months, my spouse has been in UK for 9years and 4months and we have two kids (5yrs 9months and 3yrs 6months)I was on tier 2 till Nov 2014 when my sponsor went into liquidation which as at then I still have about 7months on my visa. I searched for another employer which I got one in March 2015. by May 2015 I applied for my tier 2 extension with my new sponsor for the same job. Was refused in July 2015 after so much delay from HO and made an Admin review and was also refused in Sept 2015 and my section 3C was taken off. My lawyer applied for JR which was permitted in feb 2016 but the HO still want to contest the judge's decison and we were expected to go back to court in June until in May 2016 a letter was hand delivered to my lawyer from HO that they want to settle out of court and was offered this so called LOTR with a 60days visa to search for another employer.

After rigorous search for another tier 2 sponsor (applied for over 100 jobs within 50days and attended uncountable job interviews), none of the ones approached were ready to sponsor me, due to either HO problem or excuse of having less than 6months visa. I decided to apply for tier 4 to further my career as have been out of job for a while and the HO law says I can switch to tier 4 from tier 2, the visa was refused based on the fact that I was granted LOTR and cannot switch but can only stay on tier 2. My lawyer wrote to HO severally querying that clause but HO did not link us to where such rules are. Due to my visa running out, we were advised to make FLRO application before our leave runs out which have been submitted based on Article 8 and human right. My second son has a medical condition which alot of health professionals are involved in his case and care is on-going, we included alot of his medical reports, appointments, blood tests results (which are showing symptoms of deficiencies of his condition), a letter from our GP confirming his diagnosis and risk involved in relocating him, report from school for both kids, letters from friends, neighbours, voluntary organisations where I have been volunteering to keep my CPD up to date due to my kind of job, series of other documents to prove my relationship with my husband who is my dependant as well.

My concern now is how much chances do I have with this FLRO application and pending the time the application will be treated, I wish to do further research on what their so called LOTR law covers, if have been unfairly treated by HO subjecting me to not switching.

I will appreciate as much response and similar experience as possible. Thanks

[Highly_Skilled]

Tier 2 has no provisions to allow those whereby Leave Outside the Rules was granted to switch into Tier 2 PBS route. Here are the current rules regarding switching :

https://www.gov.uk/guidance/immigration ... sed-system

I'm surprised that your solicitor did not know this.

245HD. Requirements for leave to remain
To qualify for leave to remain as a Tier 2 (General) Migrant, Tier 2 (Minister of Religion Migrant or Tier 2 (Sportsperson) Migrant under this rule, an applicant must meet the requirements listed below. if the applicant meets these requirements, leave to remain will be granted. if the applicant does not meet these requirements, the application will be refused.

Requirements:

(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(b) the applicant must:
(i) have, or have last been granted, entry clearance, leave to enter or leave to remain as:
(1) a Tier 1 Migrant,
(2) a Tier 2 Migrant,
(3) a Highly Skilled Migrant,
(4) an Innovator,
(5) a Jewish Agency Employee,
(6) a Member of the Operational Ground Staff of an Overseas-owned Airline,
(7) a Minister of Religion, Missionary or Member of a Religious Order,
(8) a Participant in the Fresh Talent: Working in Scotland Scheme,
(9) a Participant in the International Graduates Scheme (or its predecessor, the Science and Engineering Graduates Scheme),
(10) a Qualifying Work Permit Holder,
(11) a Representative of an Overseas Business
(12) a Representative of an Overseas Newspaper, News Agency or Broadcasting Organisation,
(13) a Tier 5 (Temporary Worker) Migrant, or
(14) the partner of a Relevant Points Based System Migrant if the relevant Points Based System Migrant is a Tier 4 Migrant, or
(ii) have, or have last been granted, entry clearance, leave to enter or leave to remain as:
(1) a Tier 4 Migrant and, in respect of such leave, is or was last sponsored by:
(1) a UK recognised body or a body in receipt of public funding as a higher education institution from the Department of Employment and Learning in Northern Ireland, the Higher Education Funding Council for England, the Higher Education Funding Council for Wales or the Scottish Funding Council; or
(2) an overseas higher education institution to undertake a short-term study abroad programme in the United Kingdom,
(2) a Student,
(3) a Student Nurse,
(4) a Student Re-Sitting an Examination,
(5) a Person Writing Up a Thesis,
(6) an Overseas Qualified Nurse or Midwife,
(7) a Postgraduate Doctor or Dentist, or
(8) a Student Union Sabbatical Officer.
(c) An applicant who has, or was last granted leave as a Tier 2 (Intra-Company Transfer) Migrant must:
(i) have previously had leave as a Tier 2 (Intra-Company Transfer) Migrant under the Rules in place before 6 April 2010, or in the Established Staff sub-category under the Rules in place before 6 April 2011,
(ii) not have been granted entry clearance in this or any other route since the grant of leave referred to in (i) above; and
(iii) not be applying to work for the same Sponsor as sponsored him when he was last granted leave.
(d) An applicant under the provisions in (b)(ii) above must meet the following requirements:
(i) The applicant must have completed and passed:
(1) a UK recognised bachelor’s or master’s degree (not a qualification of equivalent level which is not a degree),
(2) a UK Postgraduate Certificate in Education or Professional Graduate Diploma of Education (not a qualification of equivalent level), or the applicant must have completed a minimum of 12 months study in the UK towards a UK PhD.
(ii) The applicant (other than an applicant under b(ii)(1) above) must have studied for the course in (d)(i) at a UK institution that is a UK recognised or listed body, or which holds a sponsor licence under Tier 4 of the Points Based System.
(iii) The applicant must have studied the course referred to in (d)(i) during:
(1) his last grant of leave, or
(2) a period of continuous leave which includes his last grant of leave, (for these purposes continuous leave will not be considered to have been broken if any of the circumstances set out in paragraphs 245AAA(a)(i) to (iii) of these Rules apply.).
(iv) The applicant’s periods of UK study and/or research towards the course in (i) must have been undertaken whilst he had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing him from undertaking that course of study and/or research.
(v) DELETED
(vi) If the applicant:
(1) is currently being sponsored by a government or international scholarship agency, or
(2) was being sponsored by a government or international scholarship agency, and that sponsorship came to an end 12 months ago or less, the applicant must provide the unconditional written consent of the sponsoring Government or agency to the application and must provide the specified documents as set out in paragraph 245A above, to show that this requirement has been met.
(vii) The applicant must provide an original degree certificate, academic transcript or an academic reference on official headed paper of the institution, which clearly shows:
(1) The applicant’s name,
(2) the course title/award,
(3) the course duration (except in the case of a degree certificate), and
(4) unless the course is a PhD course, the date of course completion and pass (or the date of award in the case of a degree certificate).
(e) an applicant who was last granted leave as a Tier 5 (Temporary Worker) Migrant must have been granted such leave in the Creative and Sporting sub-category of Tier 5 in order to allow the applicant to work as a professional footballer, and the applicant must be applying for leave to remain as a Tier 2 (Sportsperson) Migrant.
(f) If applying as a Tier 2 (General) Migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of Appendix A.
(g) If applying as a Tier 2 (Minister of Religion) Migrant, the applicant must have a minimum of 50 points under paragraphs 85 to 92A of Appendix A.
(h) If applying as a Tier 2 (Sportsperson) Migrant, the applicant must have a minimum of 50 points under paragraphs 93 to 100 of Appendix A.
(i) The applicant must have a minimum of 10 points under paragraphs 1 to 16 of Appendix B.
(j) The applicant must have a minimum of 10 points under paragraphs 4 to 5 of Appendix C.
(k) Except where the period of engagement recorded by the Certificate of Sponsorship used in support of such entry clearance or leave to remain was three months or less, the applicant must not have had entry clearance or leave to remain as a Tier 2 Migrant at any time during the 12 months immediately before the date of the application, unless:
(i) the applicant’s last grant of leave was as a Tier 2 Migrant,
(ii) the applicant was not in the UK with leave as a Tier 2 Migrant during this period, and provides evidence to show this, or
(iii) the applicant will be paid a gross annual salary (as recorded by the Certificate of Sponsorship Checking Service entry, and including such allowances as are specified as acceptable for this purpose in paragraph 79 of Appendix A) of £155,300 per year or higher.
(l) The applicant must be at least 16 years old.
(m) Where the applicant is under 18 years of age, the application must be supported by the applicant’s parents or legal guardian, or by just one parent if that parent has sole legal responsibility for the child.
(n) Where the applicant is under 18 years of age, the applicant’s parents or legal guardian, or just one parent if that parent has sole legal responsibility for the child, must confirm that they consent to the arrangements for the applicant’s care in the UK.
(o) if the sponsor is a limited company, the applicant must not own more than 10% of its shares, unless the gross annual salary (as recorded by the Certificate of Sponsorship Checking Service entry, and including such allowances as are specified as acceptable for this purpose in paragraph 79 of Appendix A) is £155,300 per year or higher.
(p) The applicant must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded.
(q) If the applicant is applying as a Tier 2 (Minister of Religion) Migrant, the Secretary of State must be satisfied that the applicant:
(i) genuinely intends to undertake, and is capable of undertaking, the role recorded by the Certificate of Sponsorship Checking Service; and
(ii) will not undertake employment in the United Kingdom other than under the terms of paragraph 245HE(d)(iii).
(r) To support the assessment in paragraph 245HD(q), the Secretary of State may:
(i) request additional information and evidence, and refuse the application if the information or evidence is not provided. Any requested documents must be received by the Home Office at the address specified in the request within 28 calendar days of the date the request is sent, and
(ii) request the applicant attends an interview, and refuse the application if the applicant fails to comply with any such request without providing a reasonable explanation.
(s) If the Secretary of State is not satisfied following the assessment in paragraph 245HD(q), no points will be awarded under paragraphs 85 to 92A of Appendix A.
(t) The Secretary of State may decide not to carry out the assessment in paragraph 245HD
(q) if the application already falls for refusal on other grounds, but reserves the right to carry out this assessment in any reconsideration of the decision.

[secret.simon]

does anyone have understanding of the rules guiding grant of leave outside the rules?

The clue is in the name. Leave Outside The Rules is granted at the discretion of the Home Office outside the Immigration Rules and is entirely discretionary (i.e. at their will). They can therefore impose any reasonable restriction on it. The standards of what is unreasonable is quite high.

[Tluv]

does anyone have understanding of the rules guiding grant of leave outside the rules?

The clue is in the name. Leave Outside The Rules is granted at the discretion of the Home Office outside the Immigration Rules and is entirely discretionary (i.e. at their will). They can therefore impose any reasonable restriction on it. The standards of what is unreasonable is quite high.

You are right as the restriction is quite unreasonable. Sometimes I question the outcome of most HO applications and reasons behind refusal.