BC Refused "Breach of immigration law" confused.

[mori24]

Hi all,

received refusal due to "breach of immigration law" specifically:

As you were in the UK in breach of immigration laws from 19.8.14 when your entry visa expired to 11.2.15 when you were granted further leave, this requirement is not met.

This was the period we extended T1 entrepreneur visa (with complications see below), but AFAIK was always in 3C and certainly not in breach of immigration law as I understand it

Details of complications:

Arrived UK a week after receiving visa (19.8.11) with my hubby the main applicant and me dependent.
We had a minor problem of timing for extension so applied FLR and two weeks later varied to T1-ext.

We later were refused due to minor but stupid (our fault...) issue with maintenance. Were given right of appeal, appealed in time, were given an appeal date later in year and as soon as 40 days passed (making a full 90 days of maintenance) cancelled appeal and reapplied extension which came quite fast.

Applied ILR with no issues (If I was in breach should they not have not given me ILR?) and then BC now refused.

The funny things is no mention of the complications and of course my entry visa expires (and you hence extend it) that is normal I certainly was not in breach of anything in 19.8.14! Maybe later the appeals et al, but they did not mention that.

Would appreciate the wisdom of the experts here. Thanks!

[cyclina1]

they must cite the immigration rule you violated, what is it?

If not, how the caseworker said you breach the immigration rule.?

[secret.simon]

Arrived UK a week after receiving visa (19.8.11) with my hubby the main applicant and me dependent.
We had a minor problem of timing for extension so applied FLR and two weeks later varied to T1-ext.

We later were refused due to minor but stupid (our fault...) issue with maintenance. Were given right of appeal, appealed in time, were given an appeal date later in year and as soon as 40 days passed (making a full 90 days of maintenance) cancelled appeal and reapplied extension which came quite fast.

We will need a more detailed immigration history, including dates, to advise you better.

What visa did you and your husband enter on? Was the extension application in 2014 made on or before the expiry of the previous visa? If it was later, even by a day, you would not be covered by Section 3C leave. Were any applications returned as invalid (not rejected)? What category of FLR did you apply for?

If I was in breach should they not have not given me ILR?

Not necessarily. Previous overstays may not be a factor in the grant of ILR, depending on which category you apply under.

[mori24]

they must cite the immigration rule you violated, what is it?

If not, how the caseworker said you breach the immigration rule.?

"As you were in the UK in breach of immigration laws from 19.8.14 when your entry visa expired to 11.2.15 when you were granted further leave, this requirement is not met."

That is ALL that is said, no details beyond that whatsoever. No reference to any laws/guidance/sections.

Very funny to me. I would understand if they had mention that since our first t1-ent extension application was refused or such and based on XYZ.fg of the immigration law etc. Nothing.

[CR001]

You need to state the dates or visa issue and expiry and the dates of each application you submitted over this period and the date of appeal withdrawal. Without these it is impossible for anyone to offer any advice.

You do realise that the minute the appeal was cancelled by yourselves, your section 3C protection under the immigration rules ended.

ILR immigration rules re overstay are completely separate and different to nationality laws. Might might be ok for ilr is not always OK for citizenship.

[mori24]

What visa did you and your husband enter on? Was the extension application in 2014 made on or before the expiry of the previous visa? If it was later, even by a day, you would not be covered by Section 3C leave. Were any applications returned as invalid (not rejected)? What category of FLR did you apply for?

We were very careful (with our lawyers) not to miss -any- pertinent filing dates. And no details were mentioned in this refusal about late filing etc

We entered, first visa ever to the UK (previous short visits just as tourists, USA passports, my husband on dozens of business trips 1-7 days, no salary in UK ever etc) on:

25.8.2011. T1-Ent (initial application took 2-3 weeks) and dependant
18.8.2014 applied FLR(O)
2.9.2014 varied to T1-Ent (extension)
4.12.2014 -extension refusal with right of appeal (case worker contacted us 2 weeks earlier it we have alternative maintenance, which we didn't, so we knew its coming)

We appealed within a few days (need to lookup dates, was handled by lawyer, we knew would rescind appeal soon)

12.1.2015 rescinded appeal and reapplied new t1-extension (maintenance OK!)
11.2.2015 T1 extension granted

Applied ILR SET(O) in early 2017 and received after 2 months no issues.



(as a side point we had strong support from the UK consul's team in our hometown who were in contact with UKBA. We wish CW had applied discretion to the maintenance error, as there was clear evidence of a very high salary, but did not....Consul support has limits...)

[mori24]

You need to state the dates or visa issue and expiry and the dates of each application you submitted over this period and the date of appeal withdrawal. Without these it is impossible for anyone to offer any advice.

You do realise that the minute the appeal was cancelled by yourselves, your section 3C protection under the immigration rules ended.

ILR immigration rules re overstay are completely separate and different to nationality laws. Might might be ok for ilr is not always OK for citizenship.

Thanks, CR001.

We reapplied t1-ext (2nd one) same day as withdrawal of appeal (I need to look back for more detail)

Are you saying the moment we withdrew appeal we lost 3C even though another application was in process? That -could- explain the issue (I thought that as long as something is "in process" and not filed late you have 3C). If that was the case then we were in breach of immigration law from 5.1.2015 not from 19.8.2014 as stated in refusal. Also they did not state the specific breach.

The rest of the BC refusal letter was boilerplate about us not fitting discretion and best to reapply in 2020 when 5 year have passed since immigration law breach....

[CR001]

What date did the tier 1 expire in 2014, before you submitted the FLR(O) on 18th August 2014. As I said, you need to state ALL the start/expiry/application dates.

By withdrawing your appeal, you became overstayers from the date your last visa expired. Your application for tier 1 again after withdrawing the appeal would have been an 'out of time' application.

[mori24]

What date did the tier 1 expire in 2014, before you submitted the FLR(O) on 18th August 2014. As I said, you need to state ALL the start/expiry/application dates.

By withdrawing your appeal, you became overstayers from the date your last visa expired. Your application for tier 1 again after withdrawing the appeal would have been an 'out of time' application.

We received 3 year initial visa expiry 19.8.2014 (so FLR was applied in time)

Your explanation makes full sense, but don't they usually give more detail?

Can you cite the law/guidance on this. Funny situation that you become a "retroactive" overstayer (so on say 20.8.2014 I was fully legal under 3C allowed to work but then retroactively I was not, should I have returned my salary received in that period? from day of appeal withdrawal till receiving extension I then certainly did not have 3C so should have not worked?)

Was there anything we could have done differently at the time (well not make maintenance mistake...)? Unfortunately we had to "buy time" and the natural thing was start appeal process....

[secret.simon]

It may be worth doing an SAR on the Home Office, which should give you a copy of the notes that the Home Office have on you.

The impression that I get from your description is that it is likely that the FLR(O) application made on 18.8.2014 was judged invalid (as opposed to rejected). An invalid application has no effect i.e. it is as if no application was made. That would explain why the refusal states that you had no leave from 19.8.2014.

Your solicitor should have been notified if the FLR(O) application was judged invalid. Worth checking with him.

[mori24]

It may be worth doing an SAR on the Home Office, which should give you a copy of the notes that the Home Office have on you.

The impression that I get from your description is that it is likely that the FLR(O) application made on 18.8.2014 was judged invalid (as opposed to rejected). An invalid application has no effect i.e. it is as if no application was made. That would explain why the refusal states that you had no leave from 19.8.2014.

Your solicitor should have been notified if the FLR(O) application was judged invalid. Worth checking with him.

1. I did an SAR before my ILR (I was concerned for my ILR due to the mess I made of my extension!), I hope I can dig it up, it would cover the FLR period. Thanks for this SAR idea BTW. But... I don't think it is FLR because I varied away from it a few days after the biometrics. Or is that what judged invalid means? (yes it was just for buying time, I would assume HO does not like that, but was told by lawyer it's legal...)

In other words are you saying that now, in the perspective of time, HO is looking at what it was, a legal trick and hence saying invalid.

I will just add, the letter of refusal had no detail at all (is that common) and CRoo1 is saying it is because of withdrawing an appeal mid way?

[secret.simon]

An invalid application does not look at the legality or the requirements of the application. It typically means that the application may have been incomplete, not signed, the fees failed to go through, photographs were the wrong size, that sort of thing.

Also see Immigration Rule 34 about the validity of an application and page 19 of the document linked to in the first line above.

Date of application: application to vary Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, 3C leave. For further information see: Leave extended by section 3C (and leave extended by section 3D in transitional cases).

However, for PBS applications, where a variation application is made in accordance with paragraph 34E, then, for the purposes of assessment against the rules, the date on which the variation is made should be treated as the date of the application

Because you filled an FLR(O) application and then a PBS (Tier 1 E) application, it may be possible that it was the date of the variation that became the date of the application. That would also explain why your Section 3C leave ceased.

As you had retained a solicitor to deal with these applications, it may be worth consulting him on this point.

[mori24]

An invalid application does not look at the legality or the requirements of the application. It typically means that the application may have been incomplete, not signed, the fees failed to go through, photographs were the wrong size, that sort of thing.

Also see Immigration Rule 34 about the validity of an application and page 19 of the document linked to in the first line above.

Date of application: application to vary Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, 3C leave. For further information see: Leave extended by section 3C (and leave extended by section 3D in transitional cases).

However, for PBS applications, where a variation application is made in accordance with paragraph 34E, then, for the purposes of assessment against the rules, the date on which the variation is made should be treated as the date of the application

Because you filled an FLR(O) application and then a PBS (Tier 1 E) application, it may be possible that it was the date of the variation that became the date of the application. That would also explain why your Section 3C leave ceased.

As you had retained a solicitor to deal with these applications, it may be worth consulting him on this point.

Secret.Simon, thank you for you answers and support.

It is the lawyer who gave bad advice on the maintenance and hence got me into the mess... I will go to a lawyer possibly once I have a grasp of the issues, this forum seems to have more knowledge than (many) lawyers

Again what you say on variation to PBS does make sense (as do the other suggestions e.g. CR001 that the rescinding of appeal ends 3C retroactively) but a few questions:

1. Is it standard in BC refusal not to give any details of the refusal? (if it's immigration rule 34, why not say that)
2. I was offered to do form NR, do I have a chance? Do I have anything to lose (besides £372)
3. If it was rule 34 (so the moment I vary to t1 Ent, my 3C ceased) why was this not an issue in the t1 Ext, first or 2nd, or the ILR?)

[CR001]

Please do not confuse the different and separate rules for visas (immigration rules) and citizenship (nationality laws and good character requirement). They are independent and completely separate from each other with different requirements.

For citizenship, you have failed to meet the good character requirement as having a period in the UK of no legal status. Link to good character requirement below.

british-citizenship/british-citizenship ... 05532.html

[xavieryves]

The rest of the BC refusal letter was boilerplate about us not fitting discretion and best to reapply in 2020 when 5 year have passed since immigration law breach....

It would seem that the breach resulted in a failure of the Good Character requirement . However I don't know why they didn't explicitly say so as they seem to do from what I've gathered on this forum.

Also, as far as I know, it's a 10 year wait to reapply from when your visa was regularised, so I don't know why they would tell you 5yrs.

Getting a SAR might give you answers to both the reason for refusal (which law you failed to meet) as well as whether you can really successfully reapply after 5yrs and not 10yrs.

[mori24]

Much thanks xavieryves, CR001 and secret.simon,

Collectively I understand that:

1. Do not compare to the ILR situation, different rules.
2. Likely that some part of the period of extension is considered, though conjecture which actual part (the variation from FLR to PBS or the rescinding of the appeal)
3. It is not typical that they did not cite the exact immigration law that I breached (is it correct that in most case they are more detailed?)
4. There is confusion why they specifically said the date (in 2020) it would be recommended to reapply 5 years after my leave was normalised in 2015 and not ten years.

Is there a time limit to sending an NR form? Do I have anything to lose besides the application fee?

Would an NR along the lines of the following make sense?:

1. No details of which immigration law I breached were attached so I cannot respond to specifics
2. I do not believe at anytime I was in breach of immigration law, as it is correct my entry visa expired on 19.8.14 but I had already applied for further leave in time, properly varied my leave and upon refusal of my t1 extension (dependent), with right of appeal, applied for appeal in time and later varied to a new t1 extension (dependent) that was granted. As such at all times I believe I was under 3C or 3D.


The above is quite basic as I do not know what rule I broke, but at minimum it will let them reconsider and flush out the issue.

[xavieryves]

1. Do not compare to the ILR situation, different rules. Correct
2. Likely that some part of the period of extension is considered, though conjecture which actual part (the variation from FLR to PBS or the rescinding of the appeal)
3. It is not typical that they did not cite the exact immigration law that I breached (is it correct that in most case they are more detailed?) Apparently that's their MO, I stand corrected

"4.31 Moreover, if the application was refused the fee was not returned, and unsuccessful applicants had to pay a further £272 (without recourse to legal aid) to submit a request for internal review, often without having been given the specific reasons why their application was refused. Where the internal review process failed, the only remedy was to issue proceedings in the high court, at considerable expense." https://assets.publishing.service.gov.u ... ent1.pdf

4. There is confusion why they specifically said the date (in 2020) it would be recommended to reapply 5 years after my leave was normalised in 2015 and not ten years. Yes, it's a 10 yr wait

Is there a time limit to sending an NR form? No there isn't
Do I have anything to lose besides the application fee? You can either gamble the NR fee or cut your losses and wait to reapply in 2025
Would an NR along the lines of the following make sense?:

1. No details of which immigration law I breached were attached so I cannot respond to specifics
2. I do not believe at anytime I was in breach of immigration law, as it is correct my entry visa expired on 19.8.14 but I had already applied for further leave in time, properly varied my leave and upon refusal of my t1 extension (dependent), with right of appeal, applied for appeal in time and later varied to a new t1 extension (dependent) that was granted. As such at all times I believe I was under 3C or 3D.

I think the above explanations by secret.simon and CR001 are pretty convincing as the reasons for why the refusal and why the dates stated. You might have a hard time trying to convince the HO otherwise.

You may though try this argument, though far from guaranteed. https://assets.publishing.service.gov.u ... .0EXT.pdf Pg 26 of 42 "• the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection and before 24 November 2016"

[ouflak1]

...the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection...[/i]"

This is the key point. If the UK government will accept that, then it might imply a 'grace' period for this breach of the Good Character requirement. That would be huge and have a wide range effect on a large number of applications.

[CR001]

...the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection...[/i]"

This is the key point. If the UK government will accept that, then it might imply a 'grace' period for this breach of the Good Character requirement. That would be huge and have a wide range effect on a large number of applications.

The OP was refused, not rejected. There is a difference.

[mori24]

Thanks, CR001, ouflak1 and xavieryves.

1. I was never rejected (as per my understanding of the term) the FLR was varied, the t1-ext was refused, the appeal was rescinded.

2. Since I have no specific knowledge of what immigration law I broke should I follow xavieryves direction of asking for discretion (the document he attached is about discretion). As you can see below 3C/appeals -are- mentioned in said document

People applying for further leave to remain - section 3C
A person with limited leave to enter or remain who makes an ‘in-time’ application for further leave has their leave extended:
• until the decision is served or the application is withdrawn
• while an appeal could be brought (until their ‘appeal rights are exhausted’)
• while an appeal is pending
Further information can be found in the 3C leave guidance

3. Taking the discretion route, should I mention the value we have brought the UK as t1-ent? (my Husband was main applicant and did not yet apply for BC, too busy, but I was a founder our our company too and we have now 150 employees and often asked by different government entities to show off our technologies.) or is BC 100% box ticking excersize (I never believe that, there is always a bureaucrat, a human, and they can show discretion, rarely, especially if you give them a pathway, e.g. the 3C route mentioned above).

[xavieryves]

I was never rejected (as per my understanding of the term) the FLR was varied, the t1-ext was refused, the appeal was rescinded.

Ok, so that option is out. It also would've been negated by the 40 day wait before resubmission as that's beyond the 28 days.

Not sure that you're covered by the 3C section for reasons explained already above but in order to know for sure it might be an idea, as already suggested to get access to your data via SAR, establish the reasons for refusal (likely to be Good Character) and start from there.

"Discretion" (re:Nationality law) by HO standards is very rigidly prescribed and applied. The right boxes need to be ticked first before they also consider other factors in order to fulfil their "hostile environment" policy.

[secret.simon]

Have you had the time to go through your SAR report?

Again, there are differences between an application being refused, rejected and found invalid. Find out if your FLR(O) application was invalid. A lot can turn on that.

I would suggest studying the SAR report carefully before taking any further action.

[mori24]

Have you had the time to go through your SAR report?

Again, there are differences between an application being refused, rejected and found invalid. Find out if your FLR(O) application was invalid. A lot can turn on that.

I would suggest studying the SAR report carefully before taking any further action.

secret.simon,

I have not found it and will search for it over the weekend.

Having read the few sources in the post, I do not understand why I was not given discretion (or better put as a question, when do they put things in discretion, many people get applications refused, reapply in time, and have no problems with BC)

[xavieryves]

Having read the few sources in the post, I do not understand why I was not given discretion (or better put as a question, when do they put things in discretion, many people get applications refused, reapply in time, and have no problems with BC)

Your resubmission was after 40 days of the first application (the withdrawal of appeal left you with no leave to remain i.e. not covered by Section 3C). Only those who reapply within 28 Days of the rejection are afforded Discretion. There may be other reasons based on whether it was a refusal/ rejection/ invalid or whether they deemed it in good faith.

https://assets.publishing.service.gov.u ... .0EXT.pdf
Pg 26 of 42 "• the applicant had made an ‘in-time’application, but the application was rejected and so they became in breach o this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection and before 24 November 2016"

[secret.simon]

secret.simon,

I have not found it and will search for it over the weekend.

Make a new SAR and go through it. It will likely also contain comments on why the naturalisation application was rejected. So, you will have fuller details.