Tier-2 visa refused, awaiting result from 2nd application

[josesilva81]

Hi all.

I'd like some advice on my situation, which is pretty similar to Aislinn12's (http://www.immigrationboards.com/uk-tie ... 58908.html). I'm in the UK and I was on a Tier 4 which expired on 30 Jan 2014. I applied for Tier 2 visa on 27 Jan 2014 and received refusal letter dated 20 Feb 2014, deemed 24 Feb 2014, due to a similar salary mistake on my CoS by the employer (they entered in 40 hours on the CoS, and the job is listed as 39 hours on the Codes of Practice; doing the math on 39 hours actually put me about £250 under what I needed to make, but my actual salary is above the threshold - the salary was wrong on the CoS).

Following my employer's advice I did NOT lodge an appeal to the decision and reapplied in person on 8 Mar (after the 10-working-day appeal deadline) using a new CoS with the right salary and a letter from the employer explaining the mistake, having stopped working since then. The caseworker said documents looked fine but it would take up to 10 working days for them to consider my new application - as my Passport and BRP had been retained by the Sheffield office as a result of the refusal.

It's now 22 March, the 10-working-day deadline is over and I still haven't heard from the UKBA about my new application. I'm worried because technically I am overstaying - not sure since when though.

My question is, what happens if they don't get in contact with me before the 28-day overstaying period is over? I know this could harm future applications but at the moment I don't even possess my passport to leave the UK.

Moreover, should the overstaying period be counted as of the day of the refusal (24 Feb) or the day after the appeal deadline (7 Mar)?

Is there anything you would recommend me to do? The UKBA letter says not to get in contact with them and my employer confirmed I should follow this instruction to avoid an even greater delay with my new application.

Thank you.

[Greenie]

The period of overstay started from when your appeal deadline passed

[josesilva81]

Hi.

I've lived in the UK for over 3 years now and I'm on a Tier 2 general visa and working full-time. My wife is my dependant and is also working under our current visa.

I have recently become a EU citizen, which was a long process started several years ago - as I have Italian heritage. Now my question is, what should I do to communicate the home office about our new status and most importantly, to avoid losing any right to stay or work in the UK in the meantime?

Thank you.

[chriskv1]

Your wife automatically has a right to work in the United Kingdom , Because she's the family member of a European national .

But it's advised that she should apply for EEA FM (EEA2.)

the application form for it is here :

https://www.gov.uk/government/uploads/s ... _07_15.pdf

How long have you been married to her for ? If its been more than 5 years I believe she can apply for permanent residency directly (EEA PR / EEA 4 )

Best of luck on your case

[secret.simon]

Does your original citizenship allow dual citizenship or did you lose it on acquiring Italian citizenship?

In any case, by acquiring EEA citizenship, you have transitioned from having leave granted under the UK Immigration Rules to having the right to stay in the UK based on the EEA Regulations. They are much more liberal when it comes to getting family in the UK.

However, be aware that your (and your wife's) clock to PR (you are no longer eligible to get ILR) are reset and you would need to spend five years in the UK as an EEA worker to earn PR. Your stay under Tier 2 likely won't count.

[chriskv1]

Does your original citizenship allow dual citizenship or did you lose it on acquiring Italian citizenship?

In any case, by acquiring EEA citizenship, you have transitioned from having leave granted under the UK Immigration Rules to having the right to stay in the UK based on the EEA Regulations. They are much more liberal when it comes to getting family in the UK.

However, be aware that your (and your wife's) clock to PR (you are no longer eligible to get ILR) are reset and you would need to spend five years in the UK as an EEA worker to earn PR. Your stay under Tier 2 likely won't count.

Thanks for that info Simon . I was not aware that the clock would be reset when it comes to PR. Can you cite any sources so that I can have a read on this further ?

in any event , the process for getting RC for his wife should be pretty straightforward since the HO had already acknowledged their marriage (Considering the fact that she already had a dependant visa.)

[secret.simon]

I am going by the logic that the EEA Regulations are based on EU law and that the Immigration Rules are based on UK law

The OP acquires PR by exercising treaty rights for a period of five years. He can only exercise treaty rights as an EEA citizen. So the earliest that he can exercise treaty rights is the day he became an Italian citizen. I am not aware of how one becomes an Italian citizen through Italian heritage and if so, what is considered to be the date he became an Italian citizen. If he is considered Italian from (not by) birth, then all the time that he has worked in the UK would count. If he became an Italian citizen from the date a certificate to that effect was issued, his working in the UK from that date would count.

As regards the Tier 2 leave that he has got based on his original citizenship, from my understanding of the first sentence of the Immigration Rules, leave can not be granted to an EEA citizen, who is entitled to exercise treaty rights. Therefore I would interpret that to mean the Tier 2 leave expires when the person to whom it is granted becomes eligible to exercise treaty rights, as the OP has.

By definition, if the OP is ineligible to be granted leave to remain, he can not be granted indefinite leave to remain. And as mentioned above, PR requires five years of exercising treaty rights, which commence when the OP became an Italian citizen. Therefore, his time working on Tier 2, but without Italian citizenship, would not count. QED.

in any event , the process for getting RC for his wife should be pretty straightforward since the HO had already acknowledged their marriage (Considering the fact that she already had a dependant visa.)

I concur.

[josesilva81]

Your wife automatically has a right to work in the United Kingdom , Because she's the family member of a European national .

But it's advised that she should apply for EEA FM (EEA2.)

Thank you. Yes, she will apply for EEA FM - but not before we're sure she will keep her right to work in the UK. Will that be the case you think, given that she's currently on a Tier-2 dependent visa which will cease to exist? Should I perhaps communicate the Home Office about my new nationality status at the same time she applies for EEA FM?

How long have you been married to her for ? If its been more than 5 years I believe she can apply for permanent residency directly (EEA PR / EEA 4 )

Best of luck on your case

Thank you again! We've been married for just over 3 years now so I suppose she'll have to stick with EEA FM. By the way, do you know whether this gives her the right to also travel alone if necessary - and go on the EU citizens queue at the UK border whenever she re-enters the UK?

Does your original citizenship allow dual citizenship or did you lose it on acquiring Italian citizenship?

It does yeah - thankfully that's not an issue!

However, be aware that your (and your wife's) clock to PR (you are no longer eligible to get ILR) are reset and you would need to spend five years in the UK as an EEA worker to earn PR. Your stay under Tier 2 likely won't count.

That shouldn't be a problem for the foreseeable future - the most important for us now is to make sure we can stay and work in the UK and not depend on a visa. Also, that will give me the ability to change employment if I so wish - as up until now I was tied to my current employer/sponsor. If I lost my job, that would also mean my wife would lose hers as a consequence - and we'd have to return to our country - so it was a pretty unstable situation for one to live under.

[josesilva81]

Hi. I'm currently in the UK on a tier 2 visa and my wife is my dependant, both of us working full-time. I have recently been granted Italian citizenship, therefore becoming a EU citizen. My employers say they will cancel my sponsorship / visa as soon as I can produce my Italian passport (as I'll start to exercise the treaty rights). My problem is that my wife's visa will also be cancelled as a result and her employers are demanding her to prove she still has the right to work in the UK. She will apply for her EEA FM residence card - but that will take some time and also, for her to keep her right to work I have to be a "qualified person", which I'm not sure I already am given I'm still working under the tier-2 visa?

Also, I've read reports that it's taking nearly 6 months for the HO to issue the residence card - but would there be how to retrieve our passports before then as we have travel plans for December? I don't suppose she could apply by only providing her current BRP+national id card (non EU country) rather than passport?

Thank you

[chriskv1]

Your wife does NOT need a visa to work in the UK anymore .Legally she has a right of residence as long as you are exercising treaty rights.RC is not a visa , Its just a confirmation that is optional.

[vinny]

That's correct. Unfortunately, some employers are paranoid.

However, if she applies for a residence card and you supply sufficient information that you are a qualified EEA national, then they should promptly issue a Certificate of Application with confirmation of right to work.