Tier 1 Entrepreneur extension application is still pending

[yang_81]

Hi everyone,
I got my Tier 1 Entrepreneur visa on March 2013, and made Tier 1 entrepreneur extension March 2016 which was rejected due to FPS missing. Then I submitted the fresh Tier 1 entrepreneur extension application on July 2016 which I am still waiting for the decision. By March 2018, I will be in Tier 1 Entrepreneur visa for 5 years.My question is: Can I apply for ILR as I am in Tier 1 Entrepreneur visa for 5 years while I am still waiting for the decision of my extension application. I think I am currently in section 3C leave. Does this waiting period can be counted for 5 year route for ILR under Tier 1 Entrepreneur?
Any help will be very appreciated. Thanks in advance.

[marcnath]

You are not under 3C. You are an overstayer now. You can apply for your ILR once your extension application is approved. The overstay will be ignored once the current application is successful

[seasky]

You are not under 3C. You are an overstayer now. You can apply for your ILR once your extension application is approved. The overstay will be ignored once the current application is successful

You will then need to person years of employment for ILR

[yang_81]

You are not under 3C. You are an overstayer now. You can apply for your ILR once your extension application is approved. The overstay will be ignored once the current application is successful

Thanks for your kind reply, please find the information below:(Original from https://www.gov.uk/government/uploads/s ... e-v8_0.pdf)
Section 3C leave extended when an in-time application is made
An in-time application is an application made by a person in the UK who at the time of application has leave to enter or remain.
Where an in time application to extend or vary leave is made and the application is not decided before the person’s existing leave expires section 3C extends the person’s existing leave until the application is decided (or withdrawn).
Example 1
Leave expires on 11 April. A valid application is made on 10 April to extend leave. In this example leave is extended by section 3C because a valid application has been made while the person has leave.

My first extension application was made in-time and was refused. Then I went for AR within time scale. The AR was refuses and then I submitted fresh extension application within time scale. Now my application is still on pending. I think I should be still in Section 3C leave, please correct me if I am wrong.

Thanks marcnath

[CR001]

When AR was refused, your Section 3C protection ended if you previous visa had already expired (you don't state when it expired). You need to have this subsequent Tier 1 Ent application approved for the overstay to be ignored.

[yang_81]

When AR was refused, your Section 3C protection ended if you previous visa had already expired (you don't state when it expired). You need to have this subsequent Tier 1 Ent application approved for the overstay to be ignored.

Thanks for your response, I am still very confused what is my current status.
The information below:(Original from https://www.gov.uk/government/uploads/s ... ers-v7.pdf)
"Second, overstaying will be disregarded where the applicant previously made an in-time application, or an application which fell within the first exception above, which was refused and the current application was made within 14 days of:
• the refusal of the previous application for leave
• the expiry of any leave extended by section 3C of the Immigration Act 1971
• the expiry of the time-limit for making an in-time application for administrative review or
appeal (where applicable),
• any administrative review or appeal being concluded, withdrawn or abandoned or
lapsing"

I made the fresh application within 14 days after AR was refused. I think my overstaying is disregarded, because the home office asked me to attend the interview after I made the fresh extension application. My application is still pending. In this case, what is my current status?

Thanks for your advice and time:)

[mohsensari]

I made the fresh application within 14 days after AR was refused. I think my overstaying is disregarded, because the home office asked me to attend the interview after I made the fresh extension application. My application is still pending. In this case, what is my current status?

Thanks for your advice and time

You have answered your question, you are overstaying.

[hamalt66]

When AR was refused, your Section 3C protection ended if you previous visa had already expired (you don't state when it expired). You need to have this subsequent Tier 1 Ent application approved for the overstay to be ignored.

Hi CR001, would this overstaying period (which you said would be ignored if application was approved) have any negative implications on neutralisation application in the future?

[zimba]

There is NO doubt that you are no longer protected under section 3C and you are an overstayer.
However a specific reading of the rules under paragraphs paragraph 245DF(e) and 39E seems to make it possible to vary the pending extension application to ILR even as an overstayer as any current period of overstaying will be disregarded.

245DF. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a) DELETED
(b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(c) The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A.
(d) The applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(e) The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

The date of the ILR application (upon variation of the previous leave) will be assumed to be the same as the date of the extension application. Thus the ILR application was made within the timeframe set under paragraph 39E (within 14 days of section 3C coming to an end) and therefore such current period of overstaying must be disregarded. I might be wrong on this but I do not see how this cannot work as per current rules

[danu2311]

When AR was refused, your Section 3C protection ended if you previous visa had already expired (you don't state when it expired). You need to have this subsequent Tier 1 Ent application approved for the overstay to be ignored.

Thanks for your response, I am still very confused what is my current status.
The information below:(Original from https://www.gov.uk/government/uploads/s ... ers-v7.pdf)
"Second, overstaying will be disregarded where the applicant previously made an in-time application, or an application which fell within the first exception above, which was refused and the current application was made within 14 days of:
• the refusal of the previous application for leave
• the expiry of any leave extended by section 3C of the Immigration Act 1971
• the expiry of the time-limit for making an in-time application for administrative review or
appeal (where applicable),
• any administrative review or appeal being concluded, withdrawn or abandoned or
lapsing"

I made the fresh application within 14 days after AR was refused. I think my overstaying is disregarded, because the home office asked me to attend the interview after I made the fresh extension application. My application is still pending. In this case, what is my current status?

Thanks for your advice and time:)

Were your documents returned after refusal of AR. What was the reason for AR refusal. Were you given chance for second AR

[yang_81]

When AR was refused, your Section 3C protection ended if you previous visa had already expired (you don't state when it expired). You need to have this subsequent Tier 1 Ent application approved for the overstay to be ignored.

Thanks for your response, I am still very confused what is my current status.
The information below:(Original from https://www.gov.uk/government/uploads/s ... ers-v7.pdf)
"Second, overstaying will be disregarded where the applicant previously made an in-time application, or an application which fell within the first exception above, which was refused and the current application was made within 14 days of:
• the refusal of the previous application for leave
• the expiry of any leave extended by section 3C of the Immigration Act 1971
• the expiry of the time-limit for making an in-time application for administrative review or
appeal (where applicable),
• any administrative review or appeal being concluded, withdrawn or abandoned or
lapsing"

I made the fresh application within 14 days after AR was refused. I think my overstaying is disregarded, because the home office asked me to attend the interview after I made the fresh extension application. My application is still pending. In this case, what is my current status?

Thanks for your advice and time:)

The AR was refuse because FPS documents were missing, I had to make a fresh application to submit new documents.

Were your documents returned after refusal of AR. What was the reason for AR refusal. Were you given chance for second AR

[yang_81]

Thanks zimba88, that is what I think, again, thank you to guide me with detailed policy. I have been waiting for almost one and half year for my fresh extension application after the first one was refused due to absent of FPS to claim job creation.Instead of keeping wait, I think I should submit my ILR application under tier 1 entrepreneur 5 year route, and this ILR application will be variation of my previous application (fresh Tier 1 entrepreneur extension application ).
"Date of application: application to vary
Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, 3C leave. For further information see: Leave extended by section 3C (and leave extended by section 3D in transitional cases).
However, for PBS applications, where a variation application is made in accordance with paragraph 34E, then, for the purposes of assessment against the rules, the date on which the variation is made should be treated as the date of the application."
I have been wait for one and half year for my fresh extension application and still have no clue when the decision will be made. Recently, HO requested my to sent new passport as my old passport expired on 2017. Is that a sign that they start to look at my case? Should I wait for the outcome of the extension application or submit ILR application as variation application to my extension application? As I have been trapped into this virtual prison since I submitted my first extension application on March 2016 till now, I don't really know which is the best option for me...

There is NO doubt that you are no longer protected under section 3C and you are an overstayer.
However a specific reading of the rules under paragraphs paragraph 245DF(e) and 39E seems to make it possible to vary the pending extension application to ILR even as an overstayer as any current period of overstaying will be disregarded.

245DF. Requirements for indefinite leave to remain
To qualify for indefinite leave to remain as a Tier 1 (Entrepreneur) Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, indefinite leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

(a) DELETED
(b) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(c) The applicant must have a minimum of 75 points under paragraphs 35 to 53 of Appendix A.
(d) The applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL.
(e) The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

The date of the ILR application (upon variation of the previous leave) will be assumed to be the same as the date of the extension application. Thus the ILR application was made within the timeframe set under paragraph 39E (within 14 days of section 3C coming to an end) and therefore such current period of overstaying must be disregarded. I might be wrong on this but I do not see how this cannot work as per current rules

[marcnath]

The date of the ILR application (upon variation of the previous leave) will be assumed to be the same as the date of the extension application. Thus the ILR application was made within the timeframe set under paragraph 39E (within 14 days of section 3C coming to an end) and therefore such current period of overstaying must be disregarded. I might be wrong on this but I do not see how this cannot work as per current rules

If the date of the ILR application is assumed to be the same as the date of extension, then OP has not qualified for ILR as of that date. So, the ILR application (in my opinion) should be rejected due to not having met the continuous period.
In addition, it would be confusing to figure out which period is considered for Job Creation.

[yang_81]

If the date of the ILR application is assumed to be the same as the date of extension, then OP has not qualified for ILR as of that date. So, the ILR application (in my opinion) should be rejected due to not having met the continuous period.
In addition, it would be confusing to figure out which period is considered for Job Creation.

"Date of application: application to vary
Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, 3C leave. For further information see: Leave extended by section 3C (and leave extended by section 3D in transitional cases).
However, for PBS applications, where a variation application is made in accordance with paragraph 34E, then, for the purposes of assessment against the rules, the date on which the variation is made should be treated as the date of the application."(https://www.gov.uk/government/uploads/s ... n-v1.0.pdf)
I think the purposes of assessment will be the date when I submit ILR application although the application date would be the original extension application. As job creation, 'the jobs must have existed for at least 12 months during your most recent grant of leave' I my most recent grant was on March 2013, I think I will submit previous employment documents during 2013 to 2016 which I had submitted on my pending application, and add employment documents after 2016 till now.
Correct me if I m wrong.

[marcnath]

I definitely think that interpretation has merit.
What I am not sure is about the requirement :-
You can apply for settlement up to 28 days before you will reach the qualifying period (if you apply earlier than that, your application may be refused).
That is not an "assessment against the rules" but a procedural requirement. So, it is not clear (to me) whether your varied application will qualify. On the other hand, it is "may be ..", not "shall be ...

At the minimum, you may be able to fight on that basis.

The only advantages with varying the application is a saving of the cost of the application and doing away with the need for additional employment. But if you have continued to employ two people, then the second one is immaterial. Other than that, there is no significant impact as the conditions to approve the ILR would be the same as extension of application.
The negative is that, if HO rejects on the basis that you are only permitted to apply for ILR within 28 days of completing the 5 year period, then I am not sure what your available options would be after that.

So, I'd suggest you consult a professional immigration lawyer before you take the steps to vary the application.

[yang_81]

You are not under 3C. You are an overstayer now. You can apply for your ILR once your extension application is approved. The overstay will be ignored once the current application is successful

I get a response from immigration solicitor company which I find the link in this board, it says my ILR application will be rejected straight away as my current status is overstayer. So I m more confused after doing all these research.

Also, recently HO requested my to sent new passport as my old passport expired on 2017 although when I submit on July 2016 the passport was still valid. Is that a good sign or bad one?

[marcnath]

You are not under 3C. You are an overstayer now. You can apply for your ILR once your extension application is approved. The overstay will be ignored once the current application is successful

I get a response from immigration solicitor company which I find the link in this board, it says my ILR application will be rejected straight away as my current status is overstayer. So I m more confused after doing all these research.

That would be my gut feel, but did you point out 39E to the solicitor and ask their opinion on that ?
If I were in your place, I would not see much advantage in varying to ILR. I'd wait for extension result and apply for ILR the next day.

Also, recently HO requested my to sent new passport as my old passport expired on 2017 although when I submit on July 2016 the passport was still valid. Is that a good sign or bad one?

It does show someone is looking at your application - but other than that you can't read anything more.

[jaz9567]

You are not under 3C. You are an overstayer now. You can apply for your ILR once your extension application is approved. The overstay will be ignored once the current application is successful

I get a response from immigration solicitor company which I find the link in this board, it says my ILR application will be rejected straight away as my current status is overstayer. So I m more confused after doing all these research.

Also, recently HO requested my to sent new passport as my old passport expired on 2017 although when I submit on July 2016 the passport was still valid. Is that a good sign or bad one?

Hi yang_81
Did you applied for ILR or not?

[yang_81]

I did right after I received my extension visa

[jaz9567]

I did right after I received my extension visa

Congratulations.
So it means we can't apply ILR until the approval of extension.

[yang_81]

Yeah, I think it is more safe, the application fee is not cheap at all, so better do not give HM excuse to refuse.