FLR(M) Refused: Appeal or Reapply

[Skasunic]

Hello all, this is my first post on this forum. I am a US citizen in the UK who recently applied to switch from a Tier 4 into FLR(M) after getting married to a British citizen in January. We applied at the Solihull PEO on January 25, 2017 using financial catagory A combining my husband's income and my own income from working on my Tier 4.

When we applied I was a few days away from receiving my 6 month payslip with my company. As my hours for January were completed, my company was able to provide a letter confirming all of the information for January's pay and when it would be deposited. We knew that this was a risk, but decided to take it as my Tier 4 visa was going to expire on January 30, 2017, a day before I received my 6 month payslip. As such Solihull PEO was not able to give us a decision on the day and asked us for more bank statements to try and consider our application under financial category B (although I knew we didn't make enough using this category). When I sent them these bank statements I also sent them my January payslip and bank statement showing it had been deposited as at that point I had received my 6 month payslip.

However, a week later we received a refusal notice, citing that I had not been at my job for 6 months and therefore could not combine my income with my husband's, and subsequently did not meet the financial requirement. I have been given 14 days to file an appeal or leave the country. Home Office has kept my passport and BRP. Would we have any grounds to appeal?

I understand that the day of which we applied I was a few days away from being at my job for 6 months, but they had been supplied with my 6th month payslip and corresponding bank statement during their request for extra documents since as at that point I had been at my job for 6 months. Therefore, this wouldn't necessarily be new evidence if taken to an appeal...at least I think? We have also considered reapplying at Solihull PEO next week, but am a bit concerned about being class an overstayer ( my Tier 4 expired whilst waiting for PEO decision on FLR(M)) and the fact that PEO did not return my passport or BRP with my refusal notice.

How am I suppose to reapply at PEO before 14 days without my passport? Is there a way I could get it back or pick it up from Solihull PEO? Also, now that my FLR(M) app has been refused, are my work rights null and void? If I apply next week will they not consider my pay anymore? My work is willing to help out as much as they can within their legal right.

My visa expired less than 28 days ago, and one HR member mentioned that they think they could keep me hired for at least 28 days, if this is true then maybe reapplying (given the passport situation being fixed) would be an option? It has also been brought to my attention that if I apply for an appeal, and then withdraw, I would receive 28 days to launch a new application and could retain my work rights during the whole process...is this a better option? Thank you for your u time and consideration of this mess of a case.

Just feel so defeated as I just want to start my life with my husband in the UK and cringe at the prospect of possibly having to go back to the US alone.

[CR001]

I have broken your long block paragraph down as it is very difficult to read when members post just one very long block of text. Please bear this in mind when posting in the future.

[CR001]

You can reapply at the same centre where your passport is. You don't need it back to do this, just explain in the form and they would be aware that they have it.

Your HR is mistaken, you have no right to work now since your visa has expired and you have no valid leave to remain.

There is no longer a '28 day period to launch a new application'. This has recently been reduced to 14 days.

An appeal can take many months, often a year or longer. You could apply for administrative review though, within 14 days.

[Skasunic]

I apologise about the big block of text, I will keep this in mind posting in the future.

I've received mixed messages about being able to reapply at Solihull PEO. Others on similar boards are suggesting that as my Tier 4 has expired I have lost the right to make a new application.

You have mentioned that I have lost my right to work. Does this mean if I was able to reapply that they would not consider my 6 months of income anymore? My husband is £1000 shy of the financial requirement without my added income.

If I appeal would I be able to continue working? I would really prefer not to lose this job. Also, do we have grounds for an appeal? I am not arguing the reason we were refused, but we wouldn't technically be adding new information as the ECO did had my January payslip and corresponding bank statment.

If I have to go back to the US we are unsure when we would be able to reapply, so is appealing a better option to keep me here for the time being? Small chance better than no chance? If I'm correct we could withdraw the appeal if circumstances change and we are able to reapply?

[Obie]

Firstly the refusal is wrong and you could seek reconsideration, as they failed to apply the policy. Under category you are not required to have been in a job for 6 months.

Employment of less than 6 months does count, provided earning over 12 months meets the threshold.

[skp80]

You may still have a right to work as you made an in time application (before the expiry of your visa) provided that you have lodged an appeal within the appeal deadline - you would have continuing leave under the Immigration Rules. This means that your earlier conditions of leave would still apply and you would be able to reapply at the PEO centre with the evidence from the last 6 months - you may have to explain your current visa status and that you have continuing leave.

Please note that you will NOT have 'continuing leave' if the Home Office refused your application before the expiry of your visa.

You would also need to withdraw your appeal if this was made. After this you would have 14 days in which to make the new application to the Home Office.

If the above applies you will still be able to work.

[Skasunic]

I am receiving a lot of mixed advice about whether I can reapply at Solihull PEO. I have heard that because I did not receive my passport back with my refusal notice that I am not able to reapply in person at a PEO. Others have suggested that Solihull PEO has my passport and that as long as I go back to there that I would be able to reapply. However, I am also being told that reapplying isn't even an option in the 14 days after the refusal that they give you to file an appeal. So if I reapply it will close this current application and I will be classed an overstayer and will lose the right to apply for a visa from within the UK. I really appreciate everyone's advice, I just wish Home Office made things a bit more straightforward

If I file an appeal will I receive my passport back? It sounds like my best option to stay here and to continue working would be to file an appeal and then withdraw it when we are ready to make a new application. I just want to make sure that I will have my passport when I do this so that I can actually make a PEO application as waiting for a postal application would surely put me back in the overstayer category.

Also, if we did continue with an appeal, are there any consequences of it being refused, or of another application if we reapplied being refused. I have seen some comments about not being able to make another visa application for at least a year if your appeal confirms your refusal status.

Thank you for all the help guys! <3