In-country Extension for Tier 1 Entrepreneuer Refused - Second Attempt

[Amalik166]

Dear All,

We are a family of 4 Canadian nationals including 3 dependents. 2 of the dependents are now over 18 and currently studying within the UK. Our timeline is as follows:

1. Tier 1 Entrepreneur Visa Application accepted April 2012
2. Entered UK August 2012
3. Extension Application December 2016
4. Refusal May 8th 2017
5. Administrative review sent within 14 days
6. Rejection of administrative review and reapplication sent for an extension within 16 days (filed late by our lawyer resulting in an overstay)
7. Refusal of second application for extension of tier 1 visa - 2/2/18
8. Administrative review refused 28/2/18

We have been given 14 days to leave the UK. There are a number of errors within the application process most of which are down to a faulty application on behalf of our lawyer.

I have some specific questions:

1. We have been given 2 options - to take this to the High Court or to go back to Canada and create a new application for a Tier 1 Visa.
2. If I take this to the High Court, are our chances of appealing the decision reduced due to our overstay in number 6 as above?
3. If we do go ahead with appealing to the High Court, is it advisable for the 2 students to return to Canada and apply for student visas?
4. If I go back to Canada, what will happen to our business in the UK? Note we run 3 post offices, a business that is impossible to sell within 2 weeks.
5. During these two weeks, is it permitted for us to study/work?

Any other advice would be greatly appreciated.

[Amalik166]

These are our points:

- Required investment made in UK business(es) - 20 points awarded
- Applicant registered as self-employment or director within 6 months of grant/Applicant is currently under - 20 points awarded
- Applicant is engaged in business activity at the time of application - 0 points awarded
- Creation of jobs in the UK - 0 points awarded
- English language - 10 points awarded
- Maintenance funds - 0 points

To explain our missing points:

The admin review 2/2/18 granted us the maintenance funds.

We had full points for creation of jobs in our first application December 2016. This time unclear why they were lost as we actually have more employees now.

Engaged in business activity - our lawyer did not send the Companies Housing documentation until time for the admin review however argued that this is available in the public domain and that the Home Office should have exercised evidential flexibility - this was refuted as apparently evidential flexibility does not apply in this situation.

[CR001]

It would be useful if you could post the exact reasons per letter for refusal for both applications.

There are a number of errors within the application process most of which are down to a faulty application on behalf of our lawyer.

Unfortunately, this happens often. However, it is and always will be the applicants responsibiity to ensure their application is correct/accurate/complete.

1. We have been given 2 options - to take this to the High Court or to go back to Canada and create a new application for a Tier 1 Visa.

On what basis have you been advised to go the Judicial Review route? If your applications were flawed and the HO refusals correct within the immigration rules, JR will fail and cost you a fortune (if you lose you pay HO's costs). Important to note that JR is a process outside of the immigration process so there is no 'Section 3C' protection.

2. If I take this to the High Court, are our chances of appealing the decision reduced due to our overstay in number 6 as above?

There are no appeal rights for PBS routes. JR is not the same as having appeal rights for a refused visa application.

3. If we do go ahead with appealing to the High Court, is it advisable for the 2 students to return to Canada and apply for student visas?

Your/their choice if they choose to do this if they can get a CAS and admission.

4. If I go back to Canada, what will happen to our business in the UK? Note we run 3 post offices, a business that is impossible to sell within 2 weeks.

Can't answer that. Have you thought of Tier 2 General and dependent as then the dependent spouse can still continue with the business.

5. During these two weeks, is it permitted for us to study/work?

No. You are an overstayer now.

[CR001]

- Creation of jobs in the UK - 0 points awarded

Have you created and maintained the requird jobs? Did you submit the FPS?? Are your employees settled/BC or EU and did you submit evidence of this?

[Amalik166]

The High Court advice was given to us by my lawyer. She said that is our only option. We spoke to a different lawyer who advised a new application.

Also is it illegal to work/study if I do go to the High Court and that process takes a few months?

I am trying to find the old applications to give more detail on the points.

Another question - my daughter is currently a postgraduate doctor on a tier 4 visa. She will switch to a work visa in August 2019 when she completes her foundation training. Is it possible for us to transfer the business to her if we find our best option is to leave the UK? And would it be possible to become her dependent before she converts her visa in August 2019 as she is in fact in a full time employed position under the NHS?

[marcnath]

Sorry to hear about this.

To add on to CR001's reply and other comments:

1. Tier 1 Entrepreneur Visa Application accepted April 2012
2. Entered UK August 2012
3. Extension Application December 2016
4. Refusal May 8th 2017

You original visa should have been for 3 years 4 months, so it would have expired in August 2016. If you applied in Dec, it appears you did not apply before expiry. Was that the reason for refusal ?

6. Rejection of administrative review and reapplication sent for an extension within 16 days (filed late by our lawyer resulting in an overstay)
7. Refusal of second application for extension of tier 1 visa - 2/2/18
8. Administrative review refused 28/2/18

You were already and overstayer once the Administrative Review was rejected. 16 days was not the reason. Not filing within 14 days would have just been the reason for automatic refusal.
Was that the reason for refusal ?

1. We have been given 2 options - to take this to the High Court or to go back to Canada and create a new application for a Tier 1 Visa.

You have now overstayed for a considerable period of time. So you are likely to be face rejection on any new application for some period of time.

4. If I go back to Canada, what will happen to our business in the UK? Note we run 3 post offices, a business that is impossible to sell within 2 weeks.

Nothing prevents you from remaining the owner of the business here if you have someone to run the day-to-day operation. Travelling to the UK even occasionally may be a problem due to the overstay, however. Even if you are from visa waiver country, the immigration officer can deny entry on arrival.

The High Court advice was given to us by my lawyer. She said that is our only option. We spoke to a different lawyer who advised a new application.

Yes, that is correct.

Also is it illegal to work/study if I do go to the High Court and that process takes a few months?

Yes, you and your family are overstayers now.

Another question - my daughter is currently a postgraduate doctor on a tier 4 visa. She will switch to a work visa in August 2019 when she completes her foundation training. Is it possible for us to transfer the business to her if we find our best option is to leave the UK?

Yes, you can do that once she has her work visa. But, as mentioned before, UK does not have a restriction owners being foreign. But you may face challenges with bank accounts, etc. due to some strict money laundering/illegal immigration conditions imposed on the banks.

And would it be possible to become her dependent before she converts her visa in August 2019 as she is in fact in a full time employed position under the NHS?

No, you can't be a dependant of your daughter.

[Amalik166]

Many thanks for your response. I would like to clarify a few things if that's okay.

You original visa should have been for 3 years 4 months, so it would have expired in August 2016. If you applied in Dec, it appears you did not apply before expiry. Was that the reason for refusal ?

I've just had a look at my emails. Our visa was issued 13th June 2013 and we entered the UK on 14th August 2013. We applied for an extension December 2016 which was before expiry.

You were already and overstayer once the Administrative Review was rejected. 16 days was not the reason. Not filing within 14 days would have just been the reason for automatic refusal.
Was that the reason for refusal ?

No, the reason the application for extension was rejected the first time in May 2017 was because:
1. Used a personal Islamic TSB account for the business rather than a business bank account
2. Did not establish a company with Company's House within 6 months or entering the UK due to problems with the accountant. A new accountant was then sought who set up a company and back-dated the appointment of directorship. The filing history was therefore ommitted. - This was corrected on the second application.

You have now overstayed for a considerable period of time. So you are likely to be face rejection on any new application for some period of time.

Does that include if I send in a fresh application from Canada? If so, how long roughly is a period of time in which they are likely to reject?

Also - would it be advisable for my wife to be the main applicant if we were to make a fresh application and myself to be a dependent?

Yes, that is correct.

Apologies, what is correct? That the High Court is our only option?

But CCOR1 advised that this isn't a good idea?

No, you can't be a dependant of your daughter.

Does that also apply in August 2019 once she has a work visa?

[marcnath]

Many thanks for your response. I would like to clarify a few things if that's okay.

Sure

You original visa should have been for 3 years 4 months, so it would have expired in August 2016. If you applied in Dec, it appears you did not apply before expiry. Was that the reason for refusal ?

I've just had a look at my emails. Our visa was issued 13th June 2013 and we entered the UK on 14th August 2013. We applied for an extension December 2016 which was before expiry.

ok. But wouldn't the visa still have expired on 12th September 2016 ? Did they give you more than 3 years 4 months ?

You were already and overstayer once the Administrative Review was rejected. 16 days was not the reason. Not filing within 14 days would have just been the reason for automatic refusal.
Was that the reason for refusal ?

No, the reason the application for extension was rejected the first time in May 2017 was because:
1. Used a personal Islamic TSB account for the business rather than a business bank account
2. Did not establish a company with Company's House within 6 months or entering the UK due to problems with the accountant. A new accountant was then sought who set up a company and back-dated the appointment of directorship. The filing history was therefore ommitted. - This was corrected on the second application.

I was asking about the reason for rejection of the second application.

You have now overstayed for a considerable period of time. So you are likely to be face rejection on any new application for some period of time.

Does that include if I send in a fresh application from Canada? If so, how long roughly is a period of time in which they are likely to reject?

Under Section 7B of the immigration rules, since your overstay is more than 30 days, it falls under general ground for refusal for 12 months.

Also - would it be advisable for my wife to be the main applicant if we were to make a fresh application and myself to be a dependent?

She is also an overstayer, so it is the same rule.

Yes, that is correct.

Apologies, what is correct? That the High Court is our only option?

But CCOR1 advised that this isn't a good idea?

Yes, it is the only option. I did not say it is a good option, on that I agree with CR001.

No, you can't be a dependant of your daughter.

Does that also apply in August 2019 once she has a work visa?

Correct. In the UK, parents can only be dependants under very stringent conditions - you need to be unable to take care of yourself, for example.

[CR001]

You cannot be a dependent on your daughter if she holds a Tier 2 General visa. Dependents in this category are restricted to spouse' and children only.

Also, you need to think very carefully about putting the business in your daughters name if she gets a Tier 2 General visa. There are very strict rules for secondary employment and directorships and/or income generated from a business you own when a Tier 2 visa holder.

[Amalik166]

ok. But wouldn't the visa still have expired on 12th September 2016 ? Did they give you more than 3 years 4 months ?

I cannot recall the exact reason but on the visa page of our passports it was definitely December 2016.

I was asking about the reason for rejection of the second application.

Oh I see, the grounds for refusal are on my second post with an outline of the points granted/rejected. The main reason is missing documentation for the Companies Housing. This was completely missed out by my lawyer who later argued in the AR that this is in the public domain and therefore should not have been an issue. Unfortunately it seems we depended on her a bit too much.

Yes, it is the only option. I did not say it is a good option, on that I agree with CR001.

If we did go with that route, is there any advice on seeking a good barrister?
Also I have probably asked this question previously but to clarify, if we did go with this route, can we legally stay in the UK and work/study whilst awaiting a decision from the High Court or is it advisable to still leave the UK?

[Amalik166]

You cannot be a dependent on your daughter if she holds a Tier 2 General visa. Dependents in this category are restricted to spouse' and children only.

Thank you for the clarification.

Also, you need to think very carefully about putting the business in your daughters name if she gets a Tier 2 General visa. There are very strict rules for secondary employment and directorships and/or income generated from a business you own when a Tier 2 visa holder.

I see, I guess this is another thing to look into - I hope we do not need to come to that but just wanted to explore some options. I do not think she is keen to take it over anyway.
Where would I be able to find more information on this?

[CR001]

Also, you need to think very carefully about putting the business in your daughters name if she gets a Tier 2 General visa. There are very strict rules for secondary employment and directorships and/or income generated from a business you own when a Tier 2 visa holder.

I see, I guess this is another thing to look into - I hope we do not need to come to that but just wanted to explore some options. I do not think she is keen to take it over anyway.
Where would I be able to find more information on this?

She cannot own and run a business on Tier 2 General at all. She can only work for her sponsor and do 20 hours supplementary work in the same role as her main sponsored job.

https://www.gov.uk/government/uploads/s ... 18__2_.pdf

[CR001]

ok. But wouldn't the visa still have expired on 12th September 2016 ? Did they give you more than 3 years 4 months ?

I cannot recall the exact reason but on the visa page of our passports it was definitely December 2016.

What date in December was it, exact date?? Are you sure you have not read the dates in the American format (month/day/year) instead of the UK format (day/month/year)??

Yes, it is the only option. I did not say it is a good option, on that I agree with CR001.

If we did go with that route, is there any advice on seeking a good barrister?
Also I have probably asked this question previously but to clarify, if we did go with this route, can we legally stay in the UK and work/study whilst awaiting a decision from the High Court or is it advisable to still leave the UK?

Members are not permitted to post names or details of solicitors/barristers/lawyers on the forum.

You cannot work any longer, you are an overstayer. JR has nothing to do with legal right to remain in the UK.

[Amalik166]

ok. But wouldn't the visa still have expired on 12th September 2016 ? Did they give you more than 3 years 4 months ?

I cannot recall the exact reason but on the visa page of our passports it was definitely December 2016.

What date in December was it, exact date?? Are you sure you have not read the dates in the American format (month/day/year) instead of the UK format (day/month/year)??

Yes, I have double checked my visa page.
Valid from 12/6/13 and valid until 12/12/16.
Perhaps it was changed to 3 years and 6 months?

Yes, it is the only option. I did not say it is a good option, on that I agree with CR001.

You cannot work any longer, you are an overstayer. JR has nothing to do with legal right to remain in the UK.

I see so even with that route we need to leave within 14 days?

[Amalik166]

ok. But wouldn't the visa still have expired on 12th September 2016 ? Did they give you more than 3 years 4 months ?

I cannot recall the exact reason but on the visa page of our passports it was definitely December 2016.

What date in December was it, exact date?? Are you sure you have not read the dates in the American format (month/day/year) instead of the UK format (day/month/year)??

Yes, I have double checked my visa page.
Valid from 12/6/13 and valid until 12/12/16.
Perhaps it was changed to 3 years and 6 months because we didn't enter the UK until 14th August?

Yes, it is the only option. I did not say it is a good option, on that I agree with CR001.

You cannot work any longer, you are an overstayer. JR has nothing to do with legal right to remain in the UK.

I see so even with that route we need to leave within 14 days?

[bizman]

Sorry about this situation. I think the JR option is the only visible option, however the probability of its success is quite low as the CW refused within the limits of the immigration rule. The whole error of refusal is caused by your solicitor, however you should have been on top of it yourself. Most of the solicitors are only interested in the money they get from you only few are quite professional.

I will advise you allow your daughter to continue independently on her work visa while you pursue the JR, I think you could also give her a power of attorney to help dispose off your businesses in case you have to leave. JR is the only possible option.

[marcnath]

I see so even with that route we need to leave within 14 days?

Even if go on JR, you are an over stayer and you cannot work or your dependants cannot study, etc.

However, if you are in the JR process, you are not going to be forcefully deported or arrested or anything.

You are going to have a tough time if, for example, you need to rent a house. Your driver's licence may be revoked, bank accounts may be frozen, etc. There are people in this forum who have stayed on and coped with all of these possibilities. So, it is up to you.