ILR Refused based on IR Paragraph 245HF

[T2Migrant2013]

Hi,

Hope everyone is doing well.

We've just applied for ILR and got refused on grounds that according to the immigration rules 245HF (b), that we applied to early and the visa was granted on on an later date. Please situation below:

• Arrive in the UK August 2010

• Granted Tier 1 PSW on December 2011

• 1st Tier 2 - COS issued 21st February 2013, applied by post on the 08/03/2013, visa approved dated 25/04/2013, BRP issued 29/04/2013, valid until 08/03/2016

• 2nd Tier 2 - COS issued 7th February 2016, applied by post on the 27/01/2016, visa approved dated 23/02/2016, BRP issued 23/02/2016, valid until 07/03/2019

Based on the Tier 2 Policy Guidance version 12/2012:
"We will grant leave:
i. for 3 years plus 14 days from the
start date given on your Certificate of
Sponsorship; or
ii. to the end date given on your Certificate
of Sponsorship plus 14 days; or
iii. the period of time you need to take
your total leave granted in Tier 2 to 6
years (counted from the date you were
first granted entry clearance or leave to
remain).
whichever is the shorter period."

- If you tally up the first visa, the start date of my visa will be on issue date of my COS which will match above that we are granted 3 years and 14 days.
- If we tally up all the visas of Tier 2, I've been given 6 years and 14 days, which is in accordance with the old policy guidance
Note: I'm on the old Tier 2 short term visa.

I've then emailed my case worker back on 2013 that to confirm when did my Tier 2 visa started, which the case worker clearly stated that the start date of my visa is when the first COS was granted (21/02/2013). This email was provided during the application including copies of the two COS given.

The new Tier 2 Policy Guidance states the below:
"259. Your qualifying period can include time from the date your initial application (for entry clearance or leave to remain) was approved."

And this guidance is only valid as per page one which states:
"This guidance is to be used for all Tier 2 applications supported by a Certificate of Sponsorship assigned on or after 11 January 2018"

Since I was on the Tier 2 short term visa and does not fall for the categories stated on the new Tier 2 PG. And I was informed by the case worker that my visa started on the date of the COS. Would I be able to ask for an admin review to reverse the decision on the basis that I was granted visa on the basis of the old tier 2 policy guidance, that the start date of my visa is 21/02/2013?

Please advise on next action or if we could ask help on how to reverse their decision on the matter.

Should you have any question or concerns, please let me know.

Many Thanks,

T2Migrant2013

[zimba]

You MUST spent at least 5 years minus 28 days of valid and lawful Tier 2 leave. The claim that your period of leave started on the day COS was issued is flat out incorrect and rules have always been clear on that. Your leave started when you were granted Tier 2 visa initially.
You are only eligible to apply for ILR at the end of March 2018.

[Djsuccess]

Hi,

Hope everyone is doing well.

We've just applied for ILR and got refused on grounds that according to the immigration rules 245HF (b), that we applied to early and the visa was granted on on an later date. Please situation below:

• Arrive in the UK August 2010

• Granted Tier 1 PSW on December 2011

• 1st Tier 2 - COS issued 21st February 2013, applied by post on the 08/03/2013, visa approved dated 25/04/2013, BRP issued 29/04/2013, valid until 08/03/2016

• 2nd Tier 2 - COS issued 7th February 2016, applied by post on the 27/01/2016, visa approved dated 23/02/2016, BRP issued 23/02/2016, valid until 07/03/2019

Based on the Tier 2 Policy Guidance version 12/2012:
"We will grant leave:
i. for 3 years plus 14 days from the
start date given on your Certificate of
Sponsorship; or
ii. to the end date given on your Certificate
of Sponsorship plus 14 days; or
iii. the period of time you need to take
your total leave granted in Tier 2 to 6
years (counted from the date you were
first granted entry clearance or leave to
remain).
whichever is the shorter period."

- If you tally up the first visa, the start date of my visa will be on issue date of my COS which will match above that we are granted 3 years and 14 days.
- If we tally up all the visas of Tier 2, I've been given 6 years and 14 days, which is in accordance with the old policy guidance
Note: I'm on the old Tier 2 short term visa.

I've then emailed my case worker back on 2013 that to confirm when did my Tier 2 visa started, which the case worker clearly stated that the start date of my visa is when the first COS was granted (21/02/2013). This email was provided during the application including copies of the two COS given.

The new Tier 2 Policy Guidance states the below:
"259. Your qualifying period can include time from the date your initial application (for entry clearance or leave to remain) was approved."

And this guidance is only valid as per page one which states:
"This guidance is to be used for all Tier 2 applications supported by a Certificate of Sponsorship assigned on or after 11 January 2018"

Since I was on the Tier 2 short term visa and does not fall for the categories stated on the new Tier 2 PG. And I was informed by the case worker that my visa started on the date of the COS. Would I be able to ask for an admin review to reverse the decision on the basis that I was granted visa on the basis of the old tier 2 policy guidance, that the start date of my visa is 21/02/2013?

Please advise on next action or if we could ask help on how to reverse their decision on the matter.

Should you have any question or concerns, please let me know.

Many Thanks,

T2Migrant2013

COS does not equate to a visa. You can only count your ILR qualifying period from the day your Tier 2 visa was approved (25/04/2013). So you can apply for ILR 25/04/2018 or 28 days earlier.
Since your current visa is still valid until 2019, I guess you will need to make another application sometimes at the end of March 2018.

[T2Migrant2013]

Thanks all for the responses.

The situation is a bit complicated, here is why:
-- I'm on a Tier 2 Short Term Visa
-- Based on the old Tier 2 Policy Guidance and the email from from case worker submitted on the application, my Tier 2 visa was granted on the date of the COS, which equates to 3 years and 14 days.
-- The COS back then was issued to have 3 years, so the case worker approved the application and confirmed that the Tier 2 Visa given to me was 3 years and 14 days, stipulated on the email.
-- The new Tier 2 policy guidance states "This guidance is to be used for all Tier 2 applications supported by a Certificate of Sponsorship assigned on or after 11 January 2018", so unsure if that holds bearing to this application. Note: The new guidance only supports Long Term visa
-- We would like to have an admin review submitted on the grounds of "Made an error in calculating the correct period of immigration leave either held or to be granted". Meaning, if you follow the new Tier 2 Policy Guidance, that will not satisfy Immigration Rules 245HE which will allow me to have 3 years as per COS and 14 days.
-- It will also mean that it will break the granted leave that was provided to me (3 years) at the time of the original application.
-- Also on the time of the 1st Tier 2 Short Term visa application, the current rules where followed and I was given 3 years and stipulated that this was granted.
-- Also comes me to the point that my 1st Tier 2 Short Term visa application was logged at 08/03/2013 and my current visa expiration is 07/03/2019. If you count from the expiry up to the date of application, that is exactly 6 year (2016 is a leap year). So this proves that I was given two 3 year COS, I've also got COS information proving that. COS info was also included on the application.

Any inputs or suggestions are welcome and highly appreciated.

Kind Regards,

T2Migrant2013

[Echoes]

You've been incorrectly advised that your qualifying period started from the date your CoS was issued. Your qualifying period starts from the date your Tier-2 entry clearance is issued. You applied too early and HO's decision to refuse your application was legally correct, therefore, there's no chance of having the decision reversed through an admin review.

[katanayi]

My understanding is that your 5-year duration starts from the issue date on BRP/stamp in the passport of first Tier2 visa. For this, you no need to check with a caseworker just check your Tier 2 visa and calculate accordingly, is that simple?

[zimba]

The ILR qualifying period starts from the date leave was granted under 245HF which is irrelevant to the issue date of COS. Your visa was NOT granted on the day of COS and a visa cannot be backdated. ILR Qualifying period starts from the date of visa being issued not the date of COS.