T1 Extension refused, employees hours, URGENT HELP PLEASE

[sm12]

And you can mention that the requirements of students keep changing pretty quickly as the syllabus is updated/or rules and regulations within business and accounting are always evolving, so you need keep yourself and your tutors up to date. So it's the nature of the business and you need to train your tutors from time to time.

[Faheemryk]

And you can mention that the requirements of students keep changing pretty quickly as the syllabus is updated/or rules and regulations within business and accounting are always evolving, so you need keep yourself and your tutors up to date. So it's the nature of the business and you need to train your tutors from time to time.

Thats one of the very valid points.

[sm12]

Also, you could briefly describe what employee one does for 20 hours a week. Say that you provided samples and her typical work week consists of the following tasks.

[amirakbar]

Could you please share your timeline. I am also running a private tuition centre. In the interview i was not being asked for lesson plan or teaching material. I applied in March 2017 still waiting for decision.

[Faheemryk]

Could you please share your timeline. I am also running a private tuition centre. In the interview i was not being asked for lesson plan or teaching material. I applied in March 2017 still waiting for decision.

applied 26 June 2017
Receievd complex letter in July 2017
Received another complex letter in February 201
Interviewed 13 April 2018
Refusal 9-7-2018


I believe you will receive your decision soon, and if your caseworker is not a terrible person like mine.... decision will be in your favour

[Faheemryk]

Could you please share your timeline. I am also running a private tuition centre. In the interview i was not being asked for lesson plan or teaching material. I applied in March 2017 still waiting for decision.

you can PM me, if you need any guidance. I am happy to help.

[CR001]

Could you please share your timeline. I am also running a private tuition centre. In the interview i was not being asked for lesson plan or teaching material. I applied in March 2017 still waiting for decision.

you can PM me, if you need any guidance. I am happy to help.

The user does not have access to the privilege of PM. If you are not a qualified and registered immigration advisor, you should not be advising people privately in your own capacity.

Members are again reminded to post in public so that all may benefit and any incorrect or dubious advise can be corrected. Any abuse of the PM function will result in a member(s) having the privilege withdrawn permanently.

[Faheemryk]

Hi
Macgrath sad day for us today our AR got rejected and gave us silly reason not even replied properly now situation is my parter is going for long residency category plus JR and I am planning to apply for JR only I do not want to apply for fresh application as its refused on genuineness so can not make any difference my question is if during JR process my partner get visa what will happen to me

Sorry to hear that. Did both of you get the refusal ?

It is always better to make a fresh application along with JR or wait for the result of the fresh application and then go for JR. But it is something you should decide in discussion with a qualified immigration lawyer.

You can address some of the initial points in a fresh application in the accounts. You can also make sure you know the details correctly to avoid the discrepancy in answers between you and your partner.

Hi Marcnoth

Apologies for mentioning like this, but I got refusal on genuineness grounds last week, I posted about it. I had been waiting for your valuable advice but you didnt comment on my post. Once again apologies for mentioning like this, but can you please read my post and give me some of your valuable advice ?

[marcnath]

Yes, I did see this post and replies from sm12.

You had covered the AR arguments pretty well yourself, so there was not much I could add to it.

It appears that, in your case, the job creation has been specifically selected as non genuine. Not your overall business.

So, anything you can add to support that the jobs are genuine should be highlighted. For example, if they were paid well above minimum wage or they have been working well over the minimum of 104 weeks required and so on. If so, you can argue that the overall history should have been concerned - not some specific incidents.

[Faheemryk]

Yes, I did see this post and replies from sm12.

You had covered the AR arguments pretty well yourself, so there was not much I could add to it.

It appears that, in your case, the job creation has been specifically selected as non genuine. Not your overall business.

So, anything you can add to support that the jobs are genuine should be highlighted. For example, if they were paid well above minimum wage or they have been working well over the minimum of 104 weeks required and so on. If so, you can argue that the overall history should have been concerned - not some specific incidents.

Thank you so much Marcnoth. The thing is ... Genuineness ... is overall broader picture of the business. I dont find find it logical to be refuse on that basis, on the basis of balance of probabilities, its is clear that I am running a genuine business. there are two things, first ... meeting all 95 points, second ... genuineness test ... if we dont score 95 points then our visa is to be refused straight away. Genuineness ... is decided on balance of probabilities. balance of probabilities clearly shows that my business is genuine.

in that case, I find it clearly unjustifiable to be refused. Am I right ?

[marcnath]

Yes, I did see this post and replies from sm12.

You had covered the AR arguments pretty well yourself, so there was not much I could add to it.

It appears that, in your case, the job creation has been specifically selected as non genuine. Not your overall business.

So, anything you can add to support that the jobs are genuine should be highlighted. For example, if they were paid well above minimum wage or they have been working well over the minimum of 104 weeks required and so on. If so, you can argue that the overall history should have been concerned - not some specific incidents.

Thank you so much Marcnoth. The thing is ... Genuineness ... is overall broader picture of the business. I dont find find it logical to be refuse on that basis, on the basis of balance of probabilities, its is clear that I am running a genuine business. there are two things, first ... meeting all 95 points, second ... genuineness test ... if we dont score 95 points then our visa is to be refused straight away. Genuineness ... is decided on balance of probabilities. balance of probabilities clearly shows that my business is genuine.

in that case, I find it clearly unjustifiable to be refused. Am I right ?

No, genuineness can be for each specific attribute.

It appears you have not been given points for your job creation based on the genuineness of that attribute. You should have been given points for the rest. It must be clear in the letters you have received.

[Faheemryk]

Yes, I did see this post and replies from sm12.

You had covered the AR arguments pretty well yourself, so there was not much I could add to it.

It appears that, in your case, the job creation has been specifically selected as non genuine. Not your overall business.

So, anything you can add to support that the jobs are genuine should be highlighted. For example, if they were paid well above minimum wage or they have been working well over the minimum of 104 weeks required and so on. If so, you can argue that the overall history should have been concerned - not some specific incidents.

Thank you so much Marcnoth. The thing is ... Genuineness ... is overall broader picture of the business. I dont find find it logical to be refuse on that basis, on the basis of balance of probabilities, its is clear that I am running a genuine business. there are two things, first ... meeting all 95 points, second ... genuineness test ... if we dont score 95 points then our visa is to be refused straight away. Genuineness ... is decided on balance of probabilities. balance of probabilities clearly shows that my business is genuine.

in that case, I find it clearly unjustifiable to be refused. Am I right ?

No, genuineness can be for each specific attribute.

It appears you have not been given points for your job creation based on the genuineness of that attribute. You should have been given points for the rest. It must be clear in the letters you have received.

I’m not given points for actively running a business and for job creation.

[marcnath]

Yes, I did see this post and replies from sm12.

You had covered the AR arguments pretty well yourself, so there was not much I could add to it.

It appears that, in your case, the job creation has been specifically selected as non genuine. Not your overall business.

So, anything you can add to support that the jobs are genuine should be highlighted. For example, if they were paid well above minimum wage or they have been working well over the minimum of 104 weeks required and so on. If so, you can argue that the overall history should have been concerned - not some specific incidents.

Thank you so much Marcnoth. The thing is ... Genuineness ... is overall broader picture of the business. I dont find find it logical to be refuse on that basis, on the basis of balance of probabilities, its is clear that I am running a genuine business. there are two things, first ... meeting all 95 points, second ... genuineness test ... if we dont score 95 points then our visa is to be refused straight away. Genuineness ... is decided on balance of probabilities. balance of probabilities clearly shows that my business is genuine.

in that case, I find it clearly unjustifiable to be refused. Am I right ?

No, genuineness can be for each specific attribute.

It appears you have not been given points for your job creation based on the genuineness of that attribute. You should have been given points for the rest. It must be clear in the letters you have received.

I’m not given points for actively running a business and for job creation.

I agree this is unfair.

It is a points based system and if you have the evidence required, then they should give you points.

If you have submitted the evidence and they don't think it is genuine, HO should be obliged to determine that it is fraudulent.

I am not sure if anyone has challenged this in court yet, but it would be interesting to see what the court has to say about it.

Of course, going for a JR is a complex and costly affair.

Unfortunately, fairness is not an argument acceptable in an AR.

You have to argue based on the fact that the CW has made a mistake.

So, highlighting why the job and the business is still genuine by arguing that the CW should have looked at a more holistic view is possibly the best approach. I already covered what could be argued for genuine job creation. Similarly for the still active in business - long term lease contracts, taxes paid, etc may help.

[Faheemryk]

Thank you so much Marcnoth. The thing is ... Genuineness ... is overall broader picture of the business. I dont find find it logical to be refuse on that basis, on the basis of balance of probabilities, its is clear that I am running a genuine business. there are two things, first ... meeting all 95 points, second ... genuineness test ... if we dont score 95 points then our visa is to be refused straight away. Genuineness ... is decided on balance of probabilities. balance of probabilities clearly shows that my business is genuine.

in that case, I find it clearly unjustifiable to be refused. Am I right ?

No, genuineness can be for each specific attribute.

It appears you have not been given points for your job creation based on the genuineness of that attribute. You should have been given points for the rest. It must be clear in the letters you have received.

I’m not given points for actively running a business and for job creation.

I agree this is unfair.

It is a points based system and if you have the evidence required, then they should give you points.

If you have submitted the evidence and they don't think it is genuine, HO should be obliged to determine that it is fraudulent.

I am not sure if anyone has challenged this in court yet, but it would be interesting to see what the court has to say about it.

Of course, going for a JR is a complex and costly affair.

Unfortunately, fairness is not an argument acceptable in an AR.

You have to argue based on the fact that the CW has made a mistake.

So, highlighting why the job and the business is still genuine by arguing that the CW should have looked at a more holistic view is possibly the best approach. I already covered what could be argued for genuine job creation. Similarly for the still active in business - long term lease contracts, taxes paid, etc may help.

Thank you Marcnath

One final question, do you think our responses to three refusal points are strong enough to over turn refusal ?

In my opinion, these responses are reasonably strong, however, we aren’t sure how admin review team will look at these. So my chances are fifty fifty .

[marcnath]

Thank you Marcnath

One final question, do you think our responses to three refusal points are strong enough to over turn refusal ?

In my opinion, these responses are reasonably strong, however, we aren’t sure how admin review team will look at these. So my chances are fifty fifty .

Yes, they do seem fair arguments but impossible to comment without knowing the full details of your business and the employees.

You need the point by point argument, but as I have said, add in additional reasons why the whole process or method was wrong.

[Faheemryk]

Thank you Marcnath

One final question, do you think our responses to three refusal points are strong enough to over turn refusal ?

In my opinion, these responses are reasonably strong, however, we aren’t sure how admin review team will look at these. So my chances are fifty fifty .

Yes, they do seem fair arguments but impossible to comment without knowing the full details of your business and the employees.

You need the point by point argument, but as I have said, add in additional reasons why the whole process or method was wrong.

I am running a private tuition business. We provide one to one, in person, or online tuition for accounting, finance and tax subjects. Our clients are university students, at postgrad and undergrad levels. We also provide tutoring to professional accountancy students who are study chartered accountancy, ACCA,CIMA or AAT etc.


I am ACCA affiliate myself, I can tutor accounting, finance and tax at any level. I had one employee, who is tutor, at junior levels, she applied her tier 1 Entreprenuer visa with my as a team. She got her ILR based on 10 years. She resigned from directorship and joined my business as an employee. Other employee had been working in admin role.

I must add that I have 9 years of tutoring experience. I got my PSW in 2011 and I was a self employed tutor at that time. Throughout my stay in the UK, I had been working as a tutor. Even before coming to UK, I was a tutor backhome as well. i had documentary proofs of working as a tutor and they were sent to caseworker after interview.

in the next comment, I will post refusal points and their counter argument. my solicitor has prepared these arguments on point by point.

[Faheemryk]

9. The refusal letter states:
We have concerns as to whether you are operating a private tuition business especially as you were unable to show the Compliance Officers any evidence of teaching students, and you were unable to show them any teaching materials, any evidence of marking students work, any work students had done for you or any lessons plans.’
10. It is submitted that when the Appellant was asked for a lesson plan he has produced a sample lesson plan for one student. The Appellant further showed and printed a lesson schedule on an Excel sheet and handed this to the Compliance Officer during the interview. The Excel sheet showed lesson dates, lessons, names of students and time when lessons were scheduled for.

11. When asked to produce a lesson plan the Appellant has produced a sample of teaching materials used during the lessons, as this is what is commonly referred to as a ‘lesson plan’ in teaching and tuition industry. Since the Respondent stated that the Appellant failed to produce lesson plans, it demonstrates a factual error on the Appellant’s side. If Respondent was seeking a detailed plan of the materials that are covered in each lesson and at which point they are covered, this must have been communicated clearly to the Appellant. The Appellant must have been provided an opportunity to produce requested documents, and without prior knowledge of what was sought by the Respondent the Appellant suffered a clear disadvantage and was not able to fully present his case. This shows a crucial misinterpretation on the Respondent’s part which hindered the Appellant in fully presenting his case to the Respondent.


12. Further, as you will note on Page 7 in Question 7 of the interview transcript the Respondent asked the following:
‘Who are your customers and what goods or services does your business provide to them? Please describe all services that your company offers in detail.’
13. As you will further note the comment below Question 7 states that no information or evidence was provided regarding the type of educational services or tutoring services.

14. The question given to the Appellant did not automatically assume an obligation to provide evidence of the work done for students. If this was the case the Appellant possessed a considerable amount of documentary evidence to demonstrate work done for students and if asked, was ready to present this evidence to the Respondent to support his case. The Respondent was not specific enough in his questioning however expected a full and detailed response from the Appellant. As previously mentioned, this placed the Appellant at a disadvantage caused by miscommunication which in turn affected the outcome of his application in a detrimental way. It is worth mentioning that the Appellant possessed considerable amount of evidence of work done for his students such as notes for online lessons on MS Office which were available to present to the Respondent at the time of the interview.

[Faheemryk]

15. The refusal letter states the following:


‘During the compliance visit you stated to Compliance Officers that you continue to employ Employee 1, although she was not present during the compliance visit. You stated that Employee 1 worked for you for 30 hours a week as a tutor but at the present time she was only working about 20 hours a week. You stated she work as a tutor but she currently only had one student, called XXXXXX. However, when Compliance Officer asked you to show them evidence of Employee 1' tutoring work including any lessons plans she had made for her current student or her previous students you were unable to do so.’

16. Firstly, it is submitted that Employee 1’s absence at the interview was due to her flight to the UK being delayed. The Appellant provided a flight ticket to the Compliance Officer to confirm this. Secondly, it is noted that the Appellant confirmed that at that moment Employee 1 was only tutoring only one student and further confirmed that the Appellant keeps receiving student enquiries, however due to the unstable nature of the business after one or two lessons when topics are covered the students no longer demand tutoring services. As you will appreciate the demand for tutoring services fluctuates and depends highly on the time of the year. Where the demand increases significantly due to exam season, the demand subsequently decreases where the exam season is finished. Therefore, the fact that at the time of the interview Employee 1 was only tutoring one student should not be conclusive of the viability and credibility of the Appellant’s business. The Respondent demonstrated lack of understanding of the nature of Appellant’s business as well as the nature of the tuition industry in general and made unsubstantiated conclusions about the credibility of Appellant’s business.

[Faheemryk]

1. The refusal letter further states:


‘You confirmed that Employee 1 had been a co-director of your company since 2012 but she did not have much effect on the business and she resigned her directorship on 17 April 2016. You then stated you re-employed her the next day to work for you in an admin role and as a tutor but you also stated to the Compliance Officers that you were still having to train her.

We have concerns as to why you would re-employ Employee 1 in an admin role and as a tutor the day after she resigned her directorship when you think she had not had much impact on the business. We have concerns as to why you would have employed Employee 1 as a tutor when you informed Compliance Officers that (two years after she resigned her directorship) you were still having to train her. ‘


2. It is submitted that to Question 10 the Appellant answered that since he led the business and made the investment into the business, Employee 1’s role as a director was not necessary and in the sense that in her capacity as a director she did not have much impact on the business. He further stated that Employee 1 was not interested in taking the director responsibilities due to family reasons. The Appellant however did not state that Employee 1 did not have much effect on the business in general, as otherwise he would not have employed her as a tutor after she resigned. Here, the Respondent failed to place the Appellant’s words in the relevant context and again, drew an incorrect and unsubstantiated conclusion with regards to the significance of Employee 1’s role in the business.

3. It is further noted, that the Appellant explained in detail to the Respondent what was Employee 1’s role in the business. As Employee 1 is an MBA graduate, she can only tutor first year students and this is the work she excels at and is needed by the business for. Since the Appellant is an ACCA affiliate he tutors second year, third year and postgraduate students as well as ACA, ACCA, CIMA levels for which he has relevant qualifications. He further confirmed that he is indeed training Employee 1 however the Respondent has drawn a misleading conclusion withregards to

Employee 1’s competency as a tutor. It is noted that the nature of Appellant’s business requires constant training as it is a highly dynamic and complex industry. The fact that the Appellant is training Employee 1 should not be indicative of Employee 1’s lack of competency or knowledge, as she is perfectly qualified to tutor first year students, on the contrary this clearly shows that Employee 1 is an ambitious individual with a desire to learn and grow professionally. It is perfectly normal that professionals in a tutoring sphere require training and supervision as even the Appellant who has been practising in this sphere for 9 years and possesses an ACCA qualification is in need of occasional training. Here, the Respondent again, demonstrated lack of knowledge of the industry as well as drew misleading conclusions as to the competency of the Appellant’s employee and as a consequence questioned the credibility of the Appellant’s business and job creation.

[Faheemryk]

1. The refusal letter further states:

‘You stated that you also employ Employee 2 for 20 hours a week, although she was not present during the compliance visit. However, we have concerns about your claim because when Compliance Officers asked to see evidence of work she had undertaken you could only show reports stated to have been created by Employee 2 and the Compliance Officers observed that these reports did not demonstrate 20 hours of week of work.’

2. It is submitted that Employee 2’s absence does not suggest that she works less than 20 hours per week as one claim does not naturally lead to the other. Neither does it suggest that her employment is not credible as the Appellant provided substantial evidence of her work to the Compliance Officers at the time of the interview. Employee 2 was on holiday at the time of the interview which was clearly explained by the Appellant to the Compliance Officers as well as confirmed by the email correspondence showing approval of Employee 2’s annual leave. As employees are entitled to annual leave it would have been unreasonable to expect Employee 2 to disrupt her annual leave in order to be present at the interview at such short notice. The Respondent has again drawn an unsubstantiated conclusion about the credibility of the Appellant’s job creation purely based on the fact that one of his employees was on annual leave.

3. It is further submitted that the Respondent has again drawn misleading conclusions based on the evidence provided to him by the Appellant. The Respondent argues that the evidence of work provided does not show that Employee 2 worked 20 hours per week, however the Appellant only provided samples of work undertaken by Employee 2. This is further confirmed by an email sent to Msxxxx xxxxx after the interview on 16 April 2018 where the Appellant clearly states that the evidence provided are samples of work undertaken by Employee 2. The Respondent has therefore drawn conclusions based on incomplete evidence. It is however submitted that the samples provided were nonetheless indicative of the amount of work Employee 2 usually does and should therefore be sufficient for the Respondent to conclude that based on these samples Employee 2 works 20 hours per week, however the Respondent failed to take such considerations into account and proceeded to draw an early conclusion about Employee 2’s working hours which contributed to his belief that the Appellant’s business and job creation are not genuine.

[Faheemryk]

1. The refusal letter further states:

‘You stated that you also employ Employee 2 for 20 hours a week, although she was not present during the compliance visit. However, we have concerns about your claim because when Compliance Officers asked to see evidence of work she had undertaken you could only show reports stated to have been created by Employee 2 and the Compliance Officers observed that these reports did not demonstrate 20 hours of week of work.’

2. It is submitted that Employee 2’s absence does not suggest that she works less than 20 hours per week as one claim does not naturally lead to the other. Neither does it suggest that her employment is not credible as the Appellant provided substantial evidence of her work to the Compliance Officers at the time of the interview. Employee 2 was on holiday at the time of the interview which was clearly explained by the Appellant to the Compliance Officers as well as confirmed by the email correspondence showing approval of Employee 2’s annual leave. As employees are entitled to annual leave it would have been unreasonable to expect Employee 2 to disrupt her annual leave in order to be present at the interview at such short notice. The Respondent has again drawn an unsubstantiated conclusion about the credibility of the Appellant’s job creation purely based on the fact that one of his employees was on annual leave.

3. It is further submitted that the Respondent has again drawn misleading conclusions based on the evidence provided to him by the Appellant. The Respondent argues that the evidence of work provided does not show that Employee 2 worked 20 hours per week, however the Appellant only provided samples of work undertaken by Employee 2. This is further confirmed by an email sent to Ms Compliance officer after the interview on 16 April 2018 where the Appellant clearly states that the evidence provided are samples of work undertaken by Employee 2. The Respondent has therefore drawn conclusions based on incomplete evidence. It is however submitted that the samples provided were nonetheless indicative of the amount of work Employee 2 usually does and should therefore be sufficient for the Respondent to conclude that based on these samples Employee 2 works 20 hours per week, however the Respondent failed to take such considerations into account and proceeded to draw an early conclusion about Employee 2’s working hours which contributed to his belief that the Appellant’s business and job creation are not genuine.

[Faheemryk]

23. Lastly, the Respondent stated that when asked to provide employee annual leave and sick leave records the Appellant was unable to do so.

24. It is submitted, that the Respondent made a partial factual error in his conclusion, as the Appellant has provided evidence of record-keeping of employees’ annual leave approvals. During an interview the Appellant provided print-outs of email correspondence showing annual leave approvals made by him. The Respondent did not take into account this vital evidence and concluded that the manner in which record keeping is conducted is less important than the format of such record-keeping. It is submitted that the Appellant has chosen form over substance, as the Appellant has provided sufficient evidence demonstrating that annual leave requests are monitored, however since they are monitored through emails, this was not considered an appropriate format of such record-keeping. The Respondent has therefore crucially misinterpreted the evidence that was provided to him during the interview and proceeded to draw an incorrect conclusion based on this negligent misinterpretation.

[Faheemryk]

Summary


25. It can be concluded that the decision to refuse the Appellant’s application for extension of his leave to remain failed to take into account relevant consideration and was not decided in a
way that was procedurally fair. The refusal letter received by the Appellant suggests a lack of due diligence in the decision-making process and the Respondent has failed to demonstrate any reason the Appellant’s business and job creation are not credible.


26. Accordingly, it is submitted that the matter should be resolved in the Appellant’s favour as he has established and is running a genuine business in the United Kingdom.

[Faheemryk]

so these are point by point responses to refusal points that my solicitor has prepared for admin review. Please guide me if there is anything else that we can add.

[marcnath]

so these are point by point responses to refusal points that my solicitor has prepared for admin review. Please guide me if there is anything else that we can add.

Looks good