Unique Case...experts Advice needed please

[kashifaariz]

Hi everyone!i have been a silent user of this forum since long... today I thought I should explain my a bit unique case and see what advise I can get from here.
I applied for T1E with my wife as my dependent in Jan 2013.(my wife's visa PSW Dependent was expiring in Jan 13 while my visa PSW was until April 2013)but my solicitor made a mistake by not sending the forms in time due to which my wife was overstayed by 1 day only.but still my solicitor sent the proof that due to her pregnancy she could not submit the application in time.6 days later my son was born... so ukba has the record that we R expecting a baby in a wk time.
Anyways in short my application was refused in June 13 on baseless and stupid reasons.I was given the right of appeal but my wife was not saying that she has overstayed by 1 day so doesn't have the right of appeal and ukba asked her to leave the country asap.
I hired a nice barrister who told me that we can't get a separate right of appeal for her but if U win the case ur wife will definitely get the visa n then U can apply for ur son later.he just added article 8 of ECHR in my grounds of appeal.my refusal points were common as most of the people have in here...i.e bank letter not accepted bcoz money is not disposable in uk,landline no not there... job discription doesn't match the services provided by the business,bla blah bla.
ukba didn't write any letter or any communication for my wife to leave the country until my appeal was pending till dec 13.on the hearing date ukba's representative didn't ask a single question from me or my wife.intact me and my barrister grilled her on all the baseless objections in my refusal.i won my appeal from FTT and the judge asked ukba to make a new lawful decision and awarded me the fee too in Jan 14.the judge also said that I m not going into article 8 of ECHR bcoz ur appeal is already allowed.so I was waiting for the ukba's reply but I don't know how long they gona take that.my wife n me needs to travel urgently and we have to make our son's ID CARD & PASSPORT too.in the mean time I was offered a good job from tier 2 general sponsor.i spoke to my barrister again and he suggested me that its better to wait for the decision and when U get ur decision then apply for tier 2 general.but I told him that they might refuse again, or they will take time n my tier 2 sponsor might not offer me again if I reject the job offer now.he said after the appeal allowed in ur case,u R not on 3C but on section 3D of immigration rules, so if U apply for variation U ill definitely get the visa but in ur wife's case its 50/50...I said I m willing to take that risk and if not then my wife n son can go back home n I can apply for them from back home as they really need to visit their home town... so we took the risk and applied for tier 2 general for me n my wife today....
My question is what do I think guys.... how much my wife has a chance now to get tier 2 dependent visa if I get the visa... we submitted all the necessary copies of all the documents and evidences with our applications as the originals are still with the home office??? and how long they Gona take in this situation.... please ur replies will be appreciated

[Olasunkanmi]

@ kashifaariz, you didnt state what action you took about your wife's tier1 entrepreneur dependant refusal, if I understand you correctly, did you mean that your barrister advice you not to apply for her permission to appeal or JR? If thats the case, then thats a very big mistake because you have manage to compound her overstaying period since former leave expires and she will find it difficult to get approval for any visa except on compassionate ground.

In your own case, you are still on section 3C and not 3D as your initial tier1 entrepreneur application is still pending for decision and you should have apply to VARY your pending application to tier2 general. But who knows if you will be lucky to get the new application treated as application for Variation of your pending tier1 entrepreneur application. But for your wife the chances is very slim.

[kashifaariz]

Thanks olasunkami for ur reply

Yes my barrister said there is no need to apply for permission to appeal or JR as we have stated article 8 of ECHR in your appeal and she was already ur dependent on PSW so they cannot separate U both as U have a 1 yr old son too.so if U win the appeal they will definitely give ur wife a visa....I should say that my barrister presented my case so well in the tribunal.... but I don't know what's gone happen now in my wife's case????
Will they send my wife's application back as invalid or will they consider????

[Olasunkanmi]

@ kashifaariz, were there any reference to your wife at all on your appeal bundle or during the hearing? If not then her tier2 general dependant application is very likely to be refused and she might have to apply for Flr(0) outside the rule on compassionate ground due to family life.

Your barrister seem to be too overconfident.

[cpmlkhan]

Hello Kashif, As far as my knowledge & your case gives me an impression that you will get your visa & your son will get straight away aswell but your wife got 50\50 chances to get dependent after long battle with UKBA unfortunately. My Advise to you if they want to travel abroad then let them go & apply their visas from outside the UK coz bro It's gonna be bit difficult for you to get her inside the UK and as I mentioned that your son will get straight away. Hopefully you can understand what we are trying to say . BEST OF LUCK.

[kashifaariz]

Thanks olasunkanmi for ur reply again...
Yes she had her witness statement and her reference no in my grounds of appeal and her bundle was also attached with my bundle..because she was my witness too in my case... when my barrister filled the FTT form.... on the hearing day the judge or home office didn't ask her anything because the judge said I'm not going into article 8 of ECHR as the refusal was unlawful and against ukba's own rules.....
The last option I have is to apply for her from my home country... but I m gona fight as much as I can under the immigration rules
Mu question is that can I apply for variation of application when my appeal is allowed???
2ndly how can I still be on section 3C or 3D of immigration rules.... when my appeal is allowed... didn't I get back the PSW status when I applied in Jan 13 and my leave was still valid... in other words.... my status is restated back as it was before refusal in June 2013....so how come I m still on 3c???just asking
Also one of my friend told me that if U R on section 3C or 3D ...u cannot apply for a variation of application???? is that right???
I would appreciate if U clarify some issues for me..thanks
@Cpmlkhan...I am grateful for ur reply and valuable advice... trust me I'm gona do whatever U said but that's my last option....I am gona fight first because all this messed up is done by urban...if they wouldn't refuse my application in June then definitely wife is also going to get the visa with me as she has overstayed by one day only at that time....I don't care about money but we need to take action against these stupid case workers who doesn't read their own rules and refuse without even reading the documents.... let me share a funny thing with all the silent readers who would read my post...
The bank letter I provided for T1E saying the exact these words:-
The money is available to Mr........ ....and is disposable into the uk anytime on the request of Mr .........
I can confirm that the bank of....... is an authorised financial institution under state bank of .........which is a home regulatory body in ..........same as FSA in auk....
Refusal letter says.... bank letter does not confirm that they are regulated by an authorised financial institution and also does not confirm that money is disposable into the uk????what do U say in reply to this???? the case worker didn't read the bank letter or may be he does not understand English....lolzzzzz

[kashifaariz]

Can somebody please reply me on my last post?????

[kashifaariz]

Hi Guys... just to update everyone that me and my wife both have got our visas for Tier 2 General and dependent for Tier 2 general today... its a great news for our families.... we applied for Tier 1 Entrepreneur in January 2013...refused in June 2013....appeal allowed in FTT on 27th January 2014 and then applied for variation to Tier 2 General on 13th Feb 2014.
I just to want to update for others to help and yes we can apply for variation of leave if judge allowed ur appeal and said the ukba's decision was unlawful but I paid the full fee for Tier 2 general...... thanks everyone for their help and support.... it was 14 months long journey but in the end the result was fruitful.... may God bless U all

[kashifaariz]

Hi Guys... just to update everyone that me and my wife both have got our visas for Tier 2 General and dependent for Tier 2 general today... its a great news for our families.... we applied for Tier 1 Entrepreneur in January 2013...refused in June 2013....appeal allowed in FTT on 27th January 2014 and then applied for variation to Tier 2 General on 13th Feb 2014.
I just to want to update for others to help and yes we can apply for variation of leave if judge allowed ur appeal and said the ukba's decision was unlawful but I paid the full fee for Tier 2 general...... thanks everyone for their help and support.... it was 14 months long journey but in the end the result was fruitful.... may God bless U all

[Olasunkanmi]

@ kashifaariz, congratulations.

[suhrab]

Hi

I was on Tier PSW which expired in March 2014, so I left UK because of unavailability of funds, and now opting for Tier 1 Entrepreneur. I have following queries:

Firstly, since my visa is expired and I a outside UK. Can I still apply for Tier 1 Entrepreneur visa with 50K route? Someone told me I can within 28 days of visa expire. Is that right? or I have to apply under 200K route?

Secondly, when I left UK I transferred all my savings to my home country bank as that time I had no chance to apply for other visa. Both bank accounts (UK and my home country) are on my name. Therefore the 90 days consecutive clause is not fulfilled, since, the money is transferred/ remitted. Now can I use both bank statements for maintenance funds? or I have to wait 90 days?

Please answer my queries so I will quickly apply for my visa. Thanks in advance

[Olasunkanmi]

@ suhrab,

Firstly, since my visa is expired and I a outside UK. Can I still apply for Tier 1 Entrepreneur visa with 50K route? Someone told me I can within 28 days of visa expire. Is that right? or I have to apply under 200K route?

No, since your PSW visa already expired, you cannot apply through the 50k PSW route, but you can use the 200k route.

Secondly, when I left UK I transferred all my savings to my home country bank as that time I had no chance to apply for other visa. Both bank accounts (UK and my home country) are on my name. Therefore the 90 days consecutive clause is not fulfilled, since, the money is transferred/ remitted. Now can I use both bank statements for maintenance funds? or I have to wait 90 days?

As long as there is break in the maintenance fund either for your UK or home account, you cant use either for 90days maintenance and your option is to wait for another 90days before submitting your application.