Very Confused, pls HELP

[yhdil]

Hi guys please comment on following situation:

Tier 2 work permit holders comes in UK (visa granted: 01/11/2009, Travelled on 13/12/2009)

His visa was curtailed till 16/03/2013 as his employer license was revoked and no right to appeal was given. He made intime Flr (o) application which was refused with right to appeal. An appeal results in his favor and judge says that the HO should have waited till the Judicial Review of Licensed Employer is concluded.

His actual leave i.e leave before curtailment was expiring on 01/03/2014 but he did not get any reply about the HO decision about the appeal, that he won.

Meanwhile, the premises where the license was revoked, gets new license under different business name. So he makes fresh Tier 2 application using new COS along with his coworker. The coworker was also in exact same situation!

Shockingly, HO approve coworker a visa and refused him a visa stating that the employer did not do Labour Test. Although exact copies were attached with both applications. No right of appeal was given yet again. He lodges Judicial Review and awaiting.

Strangly, HO sent passport and BRP with 60 days visa as a reply to appeal which was heard ages ago. That 60 days expire on 5/12/2014.

Based on this scenario, I have following question:
1. He shall complete 5 years before the exipry of this visa. Does he qualify for settlement?

2. What is standing of Judicial Review that he lodged against his fresh Tier 2 refusal?

3. If he is needed fresh application does he need Labour Test considering he has been working at the same premises and for same employer from the start.

Please help

[yhdil]

Anyone???

[Frontier Mole]

Under what grounds was his JR granted?
The fact that the individual was only given a 60 day curtailment letter suggests his previous employer did not get their licence back. By definition all the JR achieved was a reset of the orginal curtailment date.
I am guessing the new employer did not have a licence at the point of the takeover? Was TUPE invoked?

[yhdil]

Under what grounds was his JR granted?
The fact that the individual was only given a 60 day curtailment letter suggests his previous employer did not get their licence back. By definition all the JR achieved was a reset of the orginal curtailment date.
I am guessing the new employer did not have a licence at the point of the takeover? Was TUPE invoked?

The JR was lodged by the applicant in the basis of irregularties in decision making. I.e. another employee was given visa with same documents. Also, the applicant did not need Labour Test as he is still working at the same place under same terms and conditions. Only difference was the change of ownership.

The new emplyer applied for license after takeover and it was granted.

As far as 60 days are concerned, it has nothing to do with JR. The 60 days temporary visa granted as a result of winning the appeal which was lodged against the visa curtailment.

[Frontier Mole]

Sorry I am not getting something with this case.

Can you say what was appealed at what time with what outcome as you suggest there was a JR and an appeal.

[yhdil]

Thanks for taking time.

1. The appeal
The employer license was revoked and as a result the migrant employee had his visa curtailed from actual expiry date of 03/2014 to 03/2013. There was no right to appeal for the curtailment. The employee had no other option but to make Flr (0) application. This application was refused but appeal right was given.

He makes an appeal against the curtailment and argues to the court that the Employer has judicial review pending against the revoked license and under such circumstance the curtailment is against law. On this, judge said that HO didnt follow the procedure and should have made decision after the conclusion of Judicial Review of revoked license. And henceforth the appeal came in applicant favor.

2. The JR

After a month time the JR court didnt reinstate the revoked license of the Employer and the applicant waited months for the HO to make decision on the basis of judge rulings.

In the meanwhile, the employer's son takes over the business and gets new sponsorship license.The employer issued new COS to the staff whose leaves were curtailed. The staff (total 2) makes fresh TIER2 application. Despite the fact that same documents were used, the HO approve the other staff member a visa but refuses a visa to the applicant stating that he needed Labour Market Test. No appeal right was given against this refusal and asked to leave UK in 28 days. On this, the applicant makes JR against the inconsistant decision by HO. The JR is yet to be heared.

Now within all this mess, out of no where HO sends 60 visa as a decision of that appeal which was made against curtailed visa. The letter suggests that they are unable to reinstate the curtailed visa as it has already expired on 03/2014 and this 60 days are given to regularise the gap and opportunity for you to make new Tier2 application with suitable employer with valid license.

I hope this clarify tge situation.

Based on this my simple question is that the applicant completes his 5 years stay in 11/2014. Does he qualify for settlement?
If not, does making new Tier2 application allow him to make subsequent settlement aplication soon after approval of Tier 2 visa?

[Frontier Mole]

The five year ILR will not apply as by definition by applying for FLRO he has stepped outside of the continuous period of tier2 leave. That will almost certainly be the view of UKVI.
The clock was reset at the point of that refusal. The FLRO refusal superceeds the previous tier 2 application so unless the FLRO was awarded by the court then that refusal still stands.

The secondary issue of curtailment is of little value other than the recent 60 day letter might serve your case in that it alludes to continued leave under tier 2. Thus suggesting there is a possibility of there being continuous tier 2 leave.

Given the complexity of the case it is nearly impossible to determine what the outcome will be.

The next JR hearing will play a major part in the outcome but in the interim it looks like there is a forcing issue by pushing the 60 day letter.

The safe bet is stick with the JR and see what falls out of that.