Tier2 visa Curtailment-overstay & Re-application Tier2 after 12 months time

[Mohan]

Hi Guys, Please help me in this
I have been made redundant on April 2015, my employer told me that I will be issued with curtailment letter, and from the date of issue and will have 2 months time.
I have waited for curtailment letter till June 2016, and left UK voluntarily.
As of now (Aug 2017) I have been offered a COS from an employer in UK, and already put a tier2 application on 24 Aug 2017. Explained all my situation in the application.
Today I got a call from UKVI ,to interviews me. As the case worker were mostly stressing on my overstay. They were saying that you have overstayed, as your employer made you redundant. But I explained that I was waiting for the curtailment letter to arrive and in the mean time look for a new job.
As my financial strength was decreasing I decided to leave UK on June 2016.
In the 16 months of overstay period I have travelled to India twice, all the time when I arrive to UK told my situation to immigration officer and they told that you need to wait for the curtailment letter, and I was not stopped when coming to UK. I also even consulted different immigration solicitor and also called UKVI, all were saying to wait for the curtailment letter.
My tier2 visa was expiring on Jan 2017, firstly I thought of staying UK until I get my curtailment letter, but I changed my plan and left UK on June 2016.
UKVI told me that as you lost your job you should have left UK without waiting for the curtailment letter.
UKVI interviewed and it seems like they are not convinced, and told me that your application will be processed and will receive letter within 2 days time. DON"T KNOW WHAT THEY MEANT!!!
I also read IMMIGRATION RULE PART 9- 320(7B) that, if overstayed and left UK voluntarily, could apply for visa after 12 months.
In my case is this applicable.
Please Advice, Please Help!!!

[Djsuccess]

Did you change your address after you lost your job?
Is there any possibility of you missing the curtailment letter?
How did you maintain yourself financially for 16 months without a job?
UKVI will be interested in knowing many things about you and why you decided to wait for curtailment letter for 16months.
The only reason people wait for curtailment letter is to buy some time to search for another job. Technically you don't have to wait for the letter before leaving the country. I don't know if there's any legal requirements or if it is written in any UKVI guidance that one must wait for curtailment letter. The fact that you didn't get the letter for over 1 year and you travelled and entered the UK twice shows a big flaw in the system. It would appear that your visa was not cancelled after 16 months and maybe it was never cancelled (expired in January 2017) and perhaps your HMRC record would indicate your month of employment as April 2015.
So it is possible that UKVI didn't send the letter.
Did you make any attempt to contact UKVI while waiting for the curtailment letter?

I guess you have been noted as an overstayer in UKVI's record. So you will be expected to state that in your application. While you have served the 12months cooling off period, not declaring that you're an over stayer in your application might be used against you.

There are many maybes in this, as no one knows why you didn't get the curtailment letter. I guess you just have to wait for the outcome of your new application and then know what to do afterwards.

All the best

[Mohan]

Hi DJSuccess,
Thank you for your view.
I did not change my address.
As you said, they were very much interested in knowing how I survived for 16 months without a job.
I told them that I had got pay till July and also had some saving and some funds coming from India.
I told them that I contacted UKVI couple of times to know about my curtailment letter, but the reply was "please wait it will be sent to you".
I also even notified the immigration officer when I entered to UK last time, he also said to wait.
I did not declared that I am overstayer, but I have mentioned in the covering letter that I lost my job and stayed in UK to look for a new job and then voluntarily elected to leave UK.
As I thought that I was not overstaying until I get my curtailment letter.
When UKVI interviewed (for tier2 application), I also asked them whether I was sent a curtailment letter, they said that its a different department. After every discussion they asked about my new employer, work location, work responsibility and so on, and told that decision will be made today and you will receive documents in 2 days time.
I know couple of friends who got curtailment letter after 8,12, 20 months and so on, and that too through email (rarely) and by post more commonly.
I do not know whether they have sent the documents through email or not, but it is obvious that I have not got any letter.
Lets wait for the documents to be arrived and hope for the best.

[Mohan]

If the decision is no, is there any chance for me to get visa through appeal or admin review.

Regards

[CR001]

PBS routes don't have appeal rights.

Admin review is for when HO has made an error.

[Mohan]

Hi CR001,
Thank you for the reply.
I have got latest UK Immigration rule part 9: Grounds of Refusal (Document updated on 10 August 2017)
On page 2/10
(7B) Where applicant has previously breached the UK's immigration law by:
a) overstaying
b)
c)
d)

Unless the applicant :
i) overstayed for-
a) 90 days or less, where the overstaying began before 6 April 2017: or
b) 30 days or less, where overstaying began on or after 6 April 2017 and in either case, LEFT UK VOLUNTERILY, NOT AT THE EXPENSE OF THE SECRETARY OF STATE.
ii) Used deception in an application for entry clearance more than 10 years ago;
iii) LEFT THE UK VOLUNTARILY, NOT AT THE EXPENSE (DIRECTLY OR INDIRECTLY OF THE SECRETARY OF STATE, MORE THAN 12 MONTHS AGO.
will the above highlighted one be applicable on me.


The below is the wordings of the curtailment letter that one of my friend got after 12 months of his redundancy or job loss.

We would also like to take this opportunity to remind you of the Immigration Rules that govern
the way in which applications to enter the United Kingdom are treated from persons who have
previously breached the UK’s immigration laws.
In accordance with paragraph 320(7B) of the Immigration Rules, any person who previously
overstayed for more than 90 days will have their application refused unless they meet one of the exceptions set out in the Rules. Those who have breached the UK’s immigration laws could see
applications to re-enter the UK refused for the following periods;
x 1 year if, following the breach, they left the UK voluntarily at their own expense;
x 2 or 5 years if, following the breach, they left the UK voluntarily at public expense;
x 10 years if they were removed or deported from the UK following their breach.
Paragraph 320(7B) of the Immigration Rules can be found on the Home Office website at:
https://www.gov.uk/government/collectio ... tion-rules
Further information on the re-entry ban can be found on the Home Office website at:
https://www.gov.uk/government/uploads/s ... 270043/cha
pter62.pdf.

PLEASE REPLY!!!

[Mohan]

PLEASE HELP ME IN THIS TOPIC!!!
PLEASE!!!

[Djsuccess]

From the rule you sited, it appears you have spent the 12 months cooling off period and shouldn't be refused visa but as I said earlier the outcome of the the application will most likely depend on what you did or didn't do during the 16 months you were waiting for curtailment letter.
I don't think anyone can tell exactly what the outcome will be, so you just need to wait until you get the decision from UKVI.

All the best