Unintentional (ignorance) overstaying and consequences

[dhananjaydesai]

My wife, an Indian national, is employed as a doctor.
In 2003 she obtained a 3 year permit free training visa on the basis of having a job offer for the same duration.
However, for one short period, the job (with the same employer, same hospital, same wards even!) necessitated a work permit- 4 months only.
and further leave to remain was granted for those four months

What everyone, us and employer failed to take into consideration that the work permit would cancel any previous visa, no matter what time the previous visa was valid until.

Unbenknowst, she continued working, and accepted another job contract until 2010.

We even travelled 4 times out of the UK, and were allowed back on the basis of her visa until 2006

When she came to the end of the permit free visa in 2006- she knew she had to reapply (but without realising she had already overstayed in the eyes of the law!!!)

the hospital applied for a work permit for her - and this was granted as well- until 2010

The disaster unfolded when she applied for FLR -leave to remain- on the basis of this work permit.

Home office dug out all records and have realised that she actually had overstayed from the day workpermit expired.

They have rejected leave to remain, and no right to appeal
They have asked her to return back to country of origin.

Whether she will ever be able to return back at all- the Homeoffice decline to say

This is how the UK treat a highly skilled person, who ignorantly overstayed. Was in employment. Paid taxes every month. Never claimed benefits etc.
And gave the immigration officials FOUR chances during each trip out and back to the UK, for some immigration official to point out the visa had expired.................

They take no responsibility that they are at fault, they didnt update records, did not offer clear advice on what one visa does to another.

Easier to come here as someone from the EU with a criminal record, which they will happily ignore.............

Any similar cases anyone? and what to expect from hereon?
thanks

[Kayalami]

If she gets a fresh WP she should be ok to get a WP visa back home and return on that. HSMP is the best option though.

[coyote]

If she gets a fresh WP she should be ok to get a WP visa back home and return on that. HSMP is the best option though.

So what you're saying is that they have only rejected the FLR and that they would consider a fresh application made outside UK in a different perspective?

This is somewhat similar to the case I'd described in a different thread albeit for a student.

[Jeff Albright]

So what you're saying is that they have only rejected the FLR and that they would consider a fresh application made outside UK in a different perspective?

Yes, absolutely. Just obtain a visa under the WP and return.

This is somewhat similar to the case I'd described in a different thread albeit for a student.

Student visa will not be granted. Only CLS visas can be obtained.

[Jeff Albright]

What everyone, us and employer failed to take into consideration that the work permit would cancel any previous visa, no matter what time the previous visa was valid until.

IMHO something is a bit strange here. Does her 3 year permit free visa prohibit paid employment? Work Permits are made independently and anyone can obtain it in the UK, out of the UK or regardless of the immigration status in the UK. If she is still within her 3 year visa, she has the leave to remain and whether or not she obtained the WP, makes no difference unless her visa lays certain restrictions and she was in breach of those. In her permit free visa allows employment without restrictions, she will simply be viewed as someone who has not used their WP and should be ok to obtain another WP and apply for FLR(IED) on the basis of the WP.

This is how the UK treat a highly skilled person, who ignorantly overstayed. Was in employment. Paid taxes every month. Never claimed benefits etc.

This is irrelevant as far as her immigration status is concerned.

And gave the immigration officials FOUR chances during each trip out and back to the UK, for some immigration official to point out the visa had expired.................

This is why I think something is a bit dodgy here... I would assume they were admitting her in on the basis of her 3 year permit employment visa. But I do not know many of the conditions attached to the permit free employment visas. Perhaps someone else will advise better.

They take no responsibility that they are at fault, they didnt update records, did not offer clear advice on what one visa does to another.

They never take any responsibility even if that was their fault.

Good luck!

[dhananjaydesai]

thanks jeff,
sorry about any irrelevant remarks made earlier

the 3 year permit free visa was specific for hospital work only. it allows paid employment but as a doctor ONLY.
the work permit was necessary during a four month period of the 3 year job (as earlier, same hospital, same workload etc)

the workpermit did state that she could not commence work unless she had leave to remain under another category which would allow employment (viz Permit free Training which was already in force)

it did NOT state that it would automatically cause any other leave to remain to cease
the only small print that was on the visa endorsement states that ".....person does not change employment...."
the fact is that the employment did not change, only that the remaining 32 months of the post were suitable for permit free training, and hence did not require an extension of work permit.

they have refused FLR on the basis of the above fact: that she did not inform them of a change of employment! or a change of circumstances.

This is why I think something is a bit dodgy here... I would assume they were admitting her in on the basis of her 3 year permit employment visa. But I do not know many of the conditions attached to the permit free employment visas. Perhaps someone else will advise better.

They DID admit her back on the basis of the visa expiring in June 2006.
Home Officer states "we cannot comment at what happened at the ports"
so basically they allowed in a person who should not have been allowed in

dodgy? quite scary actually! they didnt update their records- if it showed up that her permitfree visa had expired- they would have barred her at the airport.

complicated???
even a solicitor i spoke to said the case was 'bizarre' and 'unique'

does this help clarify things a bit?

[Jeff Albright]

the 3 year permit free visa was specific for hospital work only. it allows paid employment but as a doctor ONLY.
the work permit was necessary during a four month period of the 3 year job (as earlier, same hospital, same workload etc)

Sorry I am confused. Did she obtain Leave to Remain for 4 months or for 3 years, as a permit free immigrant? Permit free leave to remain is a stamp in the passport, isn't it, issued by IND. Work Permit is a paper issued by Work Permits (UK) saying that the person has been approved and must now obtain Further Leave to Remain (IED) from the IND.

the workpermit did state that she could not commence work unless she had leave to remain under another category which would allow employment (viz Permit free Training which was already in force)

So, her employment at the hospital considered as employment in immigration sense?

it did NOT state that it would automatically cause any other leave to remain to cease
the only small print that was on the visa endorsement states that ".....person does not change employment...."

Fair enough. If employment under WP is terminated, it will invalidate the Leave to Remain and the immigrant must leave the UK within 28 days or apply for another WP attached to another employer.

the fact is that the employment did not change, only that the remaining 32 months of the post were suitable for permit free training, and hence did not require an extension of work permit.

So she was perfectly within her current Leave to Remain and could have asked her hospital to apply for WP at any time and then switch to the Further Leave to Remain (Immigration Employment Document).

they have refused FLR on the basis of the above fact: that she did not inform them of a change of employment! or a change of circumstances.

It was not change of circumstances, was it? She has been working for the same employer, hasn't she?

They DID admit her back on the basis of the visa expiring in June 2006.
Home Officer states "we cannot comment at what happened at the ports"
so basically they allowed in a person who should not have been allowed in

Why should have they not admitted her??? She had a valid visa before June 2006 and could go out and come back in as she pleases. Why should have they barred her, I do not understand?

even a solicitor i spoke to said the case was 'bizarre' and 'unique'

The word "bizarre" is straight on. I think there must have been some massive confusion occurred between yourselves and the IND. And I am still confused, too...

[dhananjaydesai]

Hello Jeff,
To attempt further clarification,

Sorry I am confused. Did she obtain Leave to Remain for 4 months or for 3 years, as a permit free immigrant? Permit free leave to remain is a stamp in the passport, isn't it, issued by IND. Work Permit is a paper issued by Work Permits (UK) saying that the person has been approved and must now obtain Further Leave to Remain (IED) from the IND.

she had leave under PFT (permit free training) for 36 months.

she ALSO had a WP for the first 4 months of the 36. this WP was issued one month after PFT.
PFT expired in June 06 (issued in June 03)
WP expired in Dec 03 (issued in Sep 03)

yes, PFT is a simple stamp in the passport, and WP is a kind of contract sent out on paper..
strange thing was, home officials said, no need to reapply for FLR on the basis of the WP as she already had the PFT covering her.

So, her employment at the hospital considered as employment in immigration sense?

im not sure what you mean, jeff. PFT and any time on a PFT does not count towards stay in the country. eg 15 years on PFT would not mean that she could apply for ILR- they would not be counted. if she had 15 years of WP, they would count towards ILR

Fair enough. If employment under WP is terminated, it will invalidate the Leave to Remain and the immigrant must leave the UK within 28 days or apply for another WP attached to another employer.

But her work never terminated! she did not have to sign any other contract through the remainder of her post.

she never changed employer.
at a daily functioning level, there was NO differnence to what work she did during the initial 4 months and the remaining 32 months

It was not change of circumstances, was it? She has been working for the same employer, hasn't she?

Correct.

Why should have they not admitted her??? She had a valid visa before June 2006 and could go out and come back in as she pleases. Why should have they barred her, I do not understand?

the HO did not update their records.
if they had done, they should have seen at the airports that the silent killer WP had expired, and in a kamikaze attack had taken all of the PFT with it as well. so she had no legal right to reenter

we didnt know one visa supersedes another, no matter what the length the previous visa was- this is being highlighted as our error

Hmmm? or still just as confused?

we are in such a pickle at this stage, we could change our surnames to 'Branston'

[Jeff Albright]

Dhanan,

I must admit I am still confused Sorry.

she ALSO had a WP for the first 4 months of the 36. this WP was issued one month after PFT.

Why did she need it?

PFT expired in June 06 (issued in June 03)

So why did she feel she had to apply for a WP, also?
Again, since she had a valid PFT, why do you think she should have been stopped at immigration controls or barred from entering the country??
What sort of application has been made by June 2006?

strange thing was, home officials said, no need to reapply for FLR on the basis of the WP as she already had the PFT covering her.

Because PFT IS the LTR itself and it has nothing to do with the WP. She could have switched to LTR under WP from PFT at any time by: 1) getting her hospital to apply for WP to Work Permits (UK) and 2) Sending her passport to the IND and obtaining FLR (IED) under the WP. FLR(IED) would have cancelled her PFT and she would have been classed as an immigrant under WP category.

PFT and any time on a PFT does not count towards stay in the country. eg 15 years on PFT would not mean that she could apply for ILR- they would not be counted.

Does it not, really? I do not believe so. On WP the qualifying period for ILR is not 15 years but 4 years (now 5) only. In any other categories, the qualifying period is 10 years, in "illegal" category is 14 years.

if she had 15 years of WP, they would count towards ILR

If she has spent here continuously 15 years in any category including being illegal, she would have been eligible to apply for ILR.

But her work never terminated! she did not have to sign any other contract through the remainder of her post.

In this case, she could have switched to WP category in June 2006 before her PFT visa expired or at any time between 2003 and 2006. Has she done this? What happened in fact?

the HO did not update their records.

What have they not updated? They classed her on PFT and that's why she was being admitted to the UK.

Sorry, mate, but I am still kinda lost in your case

[bbdivo]

Jeff I think the work permit thing goes back to when the NHS trusts were insisting on Doctors/Medical people having WPs even thuough they already had valid right to work in the UK. There were a bunch of posts in here regarding this a little while ago.

[dhananjaydesai]

yes jeff, blindingly confusing.

ill try one last time to clarify what happened.

back in 2003, there were hospital posts that counted towards higher training and some that didnt. this was according to rules set out by Royal College recommendation. so consultants and managers would then decide which post was and was not 'recognised for training'
frankly, there was no difference in what work a colleague in a non training post would do, and what work he would in a trraining post

For overseas doctors, the whole idea of them coming and working in the nhs was to obtain 'training' and for these 'training recognized posts', a PFT visa was sufficient/necessary.

for the 'nontraining' posts, (they did not confirm to the ideology of the PFT visa, or whatever!!!) a work permit was necessary
principle was 'this post is work, not training' therefore you need WP

this is why, you could be on a PFT, yet, you could require a WP for short stints.
so, prior to starting a non training post, a medical staffing personnel would obtain a work permit for the period of that post.

Does it not, really? I do not believe so. On WP the qualifying period for ILR is not 15 years but 4 years (now 5) only. In any other categories, the qualifying period is 10 years, in "illegal" category is 14 years.

apologies, i randomly filled in a time period- not to be taken seriously

Because PFT IS the LTR itself and it has nothing to do with the WP. She could have switched to LTR under WP from PFT at any time by: 1) getting her hospital to apply for WP to Work Permits (UK) and 2) Sending her passport to the IND and obtaining FLR (IED) under the WP. FLR(IED) would have cancelled her PFT and she would have been classed as an immigrant under WP category.

agreed. the home office advised that she need not apply for FLR (IED) on the very basis of the PFT which was issued earlier
what they did not do was- invalidate her PFT, because you can have only one visa at any one time.

she got a five year job extensioin in 2005.

in june 2006 as she came to the end of PFT, she needed to reapply for an extension. her hospital obtained a WP for her.
But FLR was not granted, because, her previous WP had expired in 2003, taking the PFT with it.

as far as they are concerned, she has overstayed her WP from dec 2003.
and as the PFT was superseded, she had no business to be here.

any better? if not, ill stop posting any further stuff. i cant see many other people getting this straight on
thanks for your input so far.

[Jeff Albright]

Dhanan,

I think I now start getting the picture.
The reason for refusal of FLR(IED) was that she was probably not eligible to switch from PFT LEAVE TO REMAIN to WP LEAVE TO REMAIN in-country and she had to leave, apply from abroad and return - perfectly legitimate thing to do (she can even do it now no matter what they refused her FLR(IED) or not, no matter if she has overstayed or not, as her WP letter is valid)

It has nothing to do with her WP expired in 2003 - she has been in the country legally since 2003 and her status was PERMIT FREE EMPLOYMENT.

So she has NOT overstayed at the time when she applied in June this year. On refusal of her FLR(IED) she had 28 days to leave the UK or appeal. If she has not done so, then she is probably now an overstayer. In this case, she needs to leave asap, apply and return - she will be back here in no time.

All the best

[British]

Hi,

Jeff - you opinion is she has not overstayed since June 2003, but if you look at Dhan's replies, you will see that he is saying that the HO did say she has overstayed on her WP visa.

Dhan, you say this:

"agreed. the home office advised that she need not apply for FLR (IED) on the very basis of the PFT which was issued earlier
what they did not do was- invalidate her PFT, because you can have only one visa at any one time. "

I think the Home office (no dis-respect meant here though!) has bluffed to you!

PFT is a LTR in itself, and if a PFT holder has applied for a WP, that WP will require a new FLR ( i am not sure about this as to whether this applied in year 2003). If the HO has adivsed to you in writting that your wife did not require a FLR based on this short-stint WP, then they are wrong if what they say now is true - i.e. accusing you of not having filed an FLR for WP.

The HO / IND processes are certainly "not fit for purpose", its very clear now!

How dare they make a hell of a mistake by advising immigrants not to qpply for a FLR and then at teh end of the day say that the immigrants overstayed their visa!!! Complete Crap!

[Jeff Albright]

Jeff - you opinion is she has not overstayed since June 2003, but if you look at Dhan's replies, you will see that he is saying that the HO did say she has overstayed on her WP visa.

This is why it appears a wrong rule and paragraph has been used to justify the decision. This does not come as a surprise when it comes to quality of decision making at the IND.

All we need to confirm now whether Permit Free Training holders are eligible to switch to WP incountry. Does anyone have any bright idea about this?
The concern is that even if the decision was wrong, she may not be able to appeal because a considerable time has passed since the adverse decision has been given.
I think Dhan will definitely need some immigration advice on this immediately.

[PASS]

There is no end to this discussion, but you have a clear answer

If she gets a fresh WP she should be ok to get a WP visa back home and return on that. HSMP is the best option though.

Good luck