T2G dependent application after second ILR refusal

[rchadha123]

Hi

Can you please advise if someone can make a new application as a Tier 2 General dependent after ILR has been refused due to Tier 1 tax amendments?
The main thing causing confusion is that the second ILR application was made 10 days after the first AR was refused. So the applicant was an overstayer when this second application was made. However, this application was considered valid as the overstay did not exceed the 28 days permitted then.

So will this new T2G dependent application be considered invalid as the applicant has been an overstayer once already? Although the intention is to make the application as soon as the second AR is refused (Currently UKVI are considering the AR for the second refusal).

Appreciate your guidance

[rchadha123]

Hi

A simpler way to ask my question above would be:

Will a new (points based) application be automatically refused if the current application was made 14 days after AR refusal of the previous application?

[zimba]

Only if the AR was related to an in-time application. If you applied for AR for an out-of-time application, then by the time your AR is refused you have been overstaying more than 14 days which makes it impossible to apply for a new application.

[rchadha123]

Thanks Zimba for your reply

I have been searching online and found the below articles which suggest that when the rules changed from 28 to 14 days it gave overstayers the opportunity to use the grace period twice. As per my understanding this could benefit the situation. Please let me know what you think?

"
One small category of people will actually benefit from the change: those who make an out of time application, which is subsequently refused. Prior to the 24 November 2016 such people would not have been able to benefit from the 28 day grace period. If their application was made after the expiry of their leave, there is no 3C leave while a decision on the application or subsequent appeal is pending. This remains true, however paragraph 39E allows an application to be submitted within 14 days of 3C leave expiring or within 14 days of refusal/conclusion of an appeal. As such, providing you make the underlying application within 14 days of leave expiring, you can benefit from the 14 day discretionary period following refusal or final determination of an appeal against that refusal. This was not the case for those submitting applications within the 28 day grace period.
"

AND

"
What is also interesting is that there is seemingly potential to have two bites of the cherry. Previously you would likely only be able to get one application into the Home Office as an overstayer, since as the period of overstaying continued to tick away, by the time that application was refused, you would then be significantly outside the 28 day period.

The new rules permit that an application can be made as an overstayer (without good reason) if you had before that made an in-time application. Significantly also that you can apply if you had previously made an application as an overstayer which was late for good reason. This is a change. It means in effect, in some cases, an applicant could have two bites of the cherry. Despite the period of time being ostensibly constricted, it may in fact be extended in some cases.

A scenario, as an example, could be that an applicant applies late, after the expiry of their leave, for good reason (their dog ate their passport). This application is considered for a time and then refused. The individual has now overstayed for 3 months. Under the old system a further application could not be made within the rules. Under the new system, because the first application was accepted for good reason late, then the individual can make a subsequent application within 14 days of the refusal. Therefore as an overstayer they get two bites of the cherry when previously they would get one. The second application may in fact be made after many months of overstaying.

"

[zimba]

I have been searching online and found the below articles which suggest that when the rules changed from 28 to 14 days it gave overstayers the opportunity to use the grace period twice. As per my understanding this could benefit the situation. Please let me know what you think?

No. paragraph 39E does not give you two opportunities as an overstayer UNLESS

- your previous application was made out-of-time AND
- the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time.

Example 1: You initially make an in-time application and it is refused. You apply for the AR and that is refused too. Now you become an overstayer. You have 14 days to apply for a new valid application under provisions of paragraph 39E. Later, this new application is refused too. Now you cannot apply for any fresh applications anymore as you have overstayed for more than 14 days

Example 2: You initially make an out-of-time application after your visa expiry because your were hospitalised and then it is eventually refused. You have been an overstayer since your last visa expiry. You apply for the AR and that is refused too. You have been overstaying beyond 14 days HOWEVER under paragraph 39E the fact you initially applied out-of-time was outside your control. NOW you get another chance or 14 days to apply for a new valid application under provisions of paragraph 39E. If this new application is refused too, you cannot apply for any fresh applications anymore.

If you see in each case, you equally get two opportunities in total, that is what paragraph 39E implies.
The 39E simply makes it fair for people who did not make an initial in-time application which was outside their control to have the exact opportunity as someone who applied in time initially.

[rchadha123]

Thanks Zimba for taking the time to provide the examples. Would appreciate any suggestions on the below scenario:

An out of time application (we will call it second application) is made because leave expired while UKVI were considering AR for the underlying in time application. This second application, although made as an overstayer, was considered valid as it was made within 14 days of AR concluding for an in time application. No good reason was provided as this application was made prior to 24/11/2016 when UKVI ignored up to 28 day period of you being an overstayer.

Does the below still applies if a third application needs to be made after conclusion of AR for second application?
"
No. paragraph 39E does not give you two opportunities as an overstayer UNLESS

- your previous application was made out-of-time AND
- the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time.
"

[zimba]

No. You get no such opportunity as I explained above