Expired BRP - overstayer

[Tallywithme]

Hi all,
I am so desperate it is unreal. When I applied for my Tier2 general sponsored visa in 2012; they gave me a 2014 expiry date even though my work place asked for March 2015... I then put it somewhere and did not travel for the 2 years. Just recently visited South Africa and then realised it had run out. I was then given a 30 day entry clearance. Home office is now saying I should leave and apply from outside of the UK - problem is, if I leave now, I will get a 12month ban. I am waiting to see if I can get a new sponsorship certificate then get legal help. Please advise and help were you can. I can't sleep I can't eat - depression/anxiety is eating me alive.
Thanks in advance for your help.
Tally

[kevb2014]

You're right you need legal advice. Your case would most probably have to be dealt with outside the immigration rules.
How many days have you overstayed? How strong are your ties with the UK? Length of continuous stay, partner, mortgage etc...

[Tallywithme]

Hi Kevb and thanks for your reply. I overstayed for 9 months but left the UK and they let me back in. I do have a mortgage/flat but no family... I built my life here. I got nowhere to go, no job if I leave. Waiting to see if my work can issue a sponsorship certificate. They told me they may have reached a limit. I'm so stressed! 11 years down the drain.

[manci]

Was your 2012 visa your first T2G visa?

What is your immigration history?

Do you have a copy of the CoS on the basis of which your 2012 visa was issued?

How is it that your sponsor let you work for 9 months without permission to work? Their licence may now be revoked and they may be fined. Have you talked to them? Do they have a company solicitor?

[Tallywithme]

Hi Manci thanks. My work was not aware because I did not know either due to not checking... I did not travel at all during this time; hence I never saw my BRP card. Like I said, I thought my expiry date was March 2015 as it was originally requested on the letter. I will speak to them, infact, I am waiting to hear back from them today. Not sure they have a solicitor or not.

I still have the copy of the CoS. Which is dated March 2012 - March 2015.

The Tier2 Gen was my first. I had been previously granted a work permit in 2004, then a 5 year residence permit in 2007. I've been here since 2004.

My immigration history is good apart from this. I am very active in the community too, I volunteer/raise money for charities.

Thanks so much for all the help.

[manci]

what visa did you have at the time when you applied for T2G in 2012?

When your T2G leave was granted in 2012, and apart from the BRP, did you receive any letter/notification from the HO which showed the expiry date of the leave?

[Tallywithme]

I had the 5 year residence permit when I applied for the T2G in 2012.

I have been looking for a letter that supposedly came with the BRP card, I do not think I received it. They did however send a letter of approval before sending my card and stated that my card would follow separately and had to sign for it. Thanks so much.

[manci]

did the letter of approval give any dates and if not what was its exact wording?

did you keep a copy of your 2012 application?

please describe the "5 year residence permit" you had at the time of the T2G application. What immigration category was it in?

[Tallywithme]

The letter did not put specific dates, however, they attached my work application with the dates I mentioned earlier (March 2012-2015). The letter stated that I check all my details and or look for errors when I collect my card - at the time of receiving the BRP, I did not see the 2014 error per ser or would have challenged it.

No I did not keep a copy of the application. Filled it and sent all my documents and they responded quickly.

The previous permit was: Residence permit March 07 - March 12 , limited leave to remain, able to work authorised by Secretary of State.
I am sorry if I am not answering this question correctly as I am not sure I understand it...

[manci]

I was just trying to establish whether granting only 2 years T2G leave early 2012 may have been a mistake by the HO. For this it is necessary to know your immigration status in 2012 prior to your application for T2G leave.

The T2 policy guidance in force at the time was the Oct 2011 version:
http://webarchive.nationalarchives.gov. ... idance.pdf
have a look at pages 34-36

[Tallywithme]

Oh dear! My head hurts!!!! I can't even comprehend the simplest of things.

If I read correctly, according to the guide, I was suppose to have been granted 5 years or a period of time stated on my sponsorship application which was 2012-2015??? II don't understand the 2 years bit. I wish I could read this with somebody for clarification...

Would that mean that I can get some kind of help regarding an extension above the 30 day entry clearance to regularise my visa? And if my sponsorship has been suspended/revoked - what can I do?

Manci, you are amazing. May you be blessed for your advise/help.

[manci]

It would be necessary to know, and you still haven't explained, the background to your "5 year residence permit" 2007-12 . On what basis did you get it, work, family, etc? What happened to your 2004 work permit, was it Business & Commercial and did it expire in 2007?

If you are unsure about your immigration history you could get it from the HO by making a SAR request:
https://www.gov.uk/government/publicati ... mmigration

Another problem is that your employer's sponsor licence may be revoked because they allowed you to work illegally and then they would not be able to sponsor you at all.

Does your current 30 day leave have any endorsement about not being allowed to work?

[Tallywithme]

Right, the background of my visa was that, in 2004 I was offered a job in the UK (I was in South Africa). Then came over on a 3 year working visa that expired in 2007 which I then extended that same working visa and they granted me the limited to work 5 year residence permit. My work helped me reapply with a sponsorship certificate... Subsequently, I then got granted the 2 year expired BRP in 2012 - which is also under the same job/sponsor. So, I renewed in 2007 and 2012 only... Amounting to a total of 3 visas over the period of over 10years. Hope this is clear enough?
I work for the NHS (healthcare scientist) - does that mean it was a commercial permit?

If I can't be sponsored by my work at all; does it mean it is over for me. I've been in tears all day.

My 30 day entry clearance does not allow me to work, no! It says "employment prohibited on it". It was requested under BRP replacement in Pretoria.

Thanks.

[Frontier Mole]

You were only given 2 years the last time as you qualified for ILR at the time it was issued you were only allowed 5 years on Tier 2.
You should have applied for ILR before the expiry of your last visa.
You have no access to regularise your stay under tier 2, so that leaves application for ILR or FLR (FP) or FLR(O)
No matter what route you go you will get a mandatory refusal because you have overstayed for so long. You will not get a right of appeal either for the same reason.
That really leaves you looking at JR to get a right of appeal or reconsideration for ILR.
You need to get good legal advice and very quickly. Don't go to a back street advisor.

[Tallywithme]

Thank you Mole. It's really not looking great for me. I been to see immigration advisors. I've never been so depressed and hopeless in my life.

I am not sure what a JR is? In fact, all the acronyms are foreign to me (no pun). Thanks for your help.

[Frontier Mole]

JR - judicial review
Essentially going to the High Court to have a decision as to the fairness and legality of the refusal to grant leave.

[Frontier Mole]

What have the advisors come up with as a solution?

[Tallywithme]

Hi Mole, the advisors will send in a letter. When it gets rejected they will then take that next step an apply for a JR. They wanted to send in a FLR(O) application but their barrister advised against it. I am not sure what to do next...

What are really my chances at this point? Am I fighting a losing battle? It will be very expensive and I am not sure I'll be able to fund it all... And Then lose at the end anyway!!!

[Frontier Mole]

Personally IMHO I would submit a FLR(FP).
Sending a letter is of no consequence as you are a de facto overstayer with no right to appeal. So you need to access an appeal route and you are only left with the use of your Human Rights hence right to private life application as above.
There is every chance it will get refused but you can appeal through the tribunal system which is much cheapier and far less complex.
In essence you have a winnable case so I would not give up. Just be careful about going to JR if there are other options.

[Tallywithme]

Thank you so much. I will forward your advise to the immigration advisors helping now!
Thanks for all the help and support.

[manci]

Whatever process you embark on in the UK it is likely to be long and expensive and you are not allowed to work in the meantime i.e. unless you have private income it will drain your resources.

Have you considered returning to S.A. before your 30 day leave expires and applying for a new T2 visa after the end of the 12 month ban?

[Tallywithme]

Hi, yes, I see your point.
I did think of that. But what about my things here? My mortgage/flat? I mean I am sure I can find work back there but it will be a very slow start... It's just, there is a lot to get my head round. After 10 years I literally have no life in S.A at all - it will be like starting right from the beginning again. I don't really know.

[manci]

rent your flat for a year?

[Tallywithme]

I guess the question would be, will I still have a job here? They might fill my post in a year and I might not get another job in the UK for a while. Don't really know.

[manci]

if you go down this route consider also that when you switched from WP to T2G the job didn't have to be NQF level 6 but if and when you apply for T2G entry clearance this will be a requirement. Find out what the SOC code was for your NHS job as health scientist and check the skill level here:
https://www.gov.uk/government/uploads/s ... 4_V0_6.pdf