Refused, can I reapply now I've overstayed?

[mandy_h]

Hi everyone,

I have a post-study work visa which expired on the 11th of February. I applied for a Tier 2 visa on the 4th of February but my application was refused on the grounds that my salary was insufficient.

I received the refusal letter yesterday (April 10th) and I now have 9 days to appeal. I don't want to appeal however, because I believe the error was in my application (the salary on my COS was too low).

My question is this: if my employer issues a new COS with the correct salary, am I allowed to reapply now as an overstayer?

I have read this thread: http://www.immigrationboards.com/viewtopic.php?t=93162 and it seems like Rubzye was successful when he submitted a fresh application as an overstayer. However, Rubzye had only overstayed by a fortnight or so by the time of his second application. Am I too late?

Thanks for your help,

Mandy

[pricesoft]

If you have a spare CoS which you could use for a new application and your sponsor is willing to raise your salary to what is required then I'd strongly advise that you put in a new Tier 2 application. Sure you will be applying as an overstayer. But I've seen enough cases very similar to yours to know that you have a decent chance of a successful Tier2 application if you are able to put in a new application within 28 days of your initial refusal. The case you refer to in your thread is a good example. I also happen to have got my current visa under similar circumstances.

Now the risk is that if you decide to put in a new application as an overstayer and this is refused for whatever reason, then you potentially have a bigger problem on your hands to put it bluntly. The reason being that, since you are likely to have overstayed by more than 28 days by the time you receive a decision on your second application. At this stage, you haven't much cards left to play other than to return home. In addition, since you overstayed by more than 28 days you won't be able to put in a new application from home for another 1 year.

I appreciate it is a very difficult decision, but equip yourself with as much information as possible and act as quickly as you can to right any wrongs. If you can afford it, seek legal representation.

Above all, good luck!

[mandy_h]

Thanks for your reply and for your encouragement!

Would it harm my application if my company issue the new CoS under a different code to the one that was refused? There are other codes that may be applicable to me that have lower salary requirements.

[mandy_h]

I have a couple of other questions...

I'll speak to HR tomorrow (the HR manager's away today) and see if they can issue me a new CoS. Just wondering
1) Do they need to withdraw the previous one which has been refused.
2) How long do I have to submit the fresh application? Is it 10 days as with time limit for an appeal or 28 days that some people mentioned?
3) Do I have to stop working 10 days after my refusal, even if i've lodged a new application? Do I have to wait until I get the BRP?

Thank you very much!!

Mandy

[pricesoft]

To answer your questions...

1) I'm a little confused by your question here. How do you mean by "withdraw"? Sorry if I have missed something out here, but if your application has been refused it is considered "refused" and I understand going by your initial post that you received a letter to that effect yesterday. Did you already receive your supporting documents?

2) How long do you have to submit a fresh application? Like I said in my earlier post, as soon as possible. The general "idea" is that you are giving the caseworker considering your application the impression that you and your employer both have your eyes on the ball and are looking to sort this out ASAP. The caseworker will be exercising discretion in considering your application so you need to make sure you are giving the caseworker enough reason to exercise discretion favourably. In my case, I was able to submit a fresh application within 3 days of refusal. I understand there is the "28 days that some people mentioned" like you said, but I'd advise that you submit any new application as soon as possible. But yes, if you want to know how long you've got from when your previous application was refused to submit a fresh application, 28 days is "generally" considered as the threshold within which the caseworker may be looking to exercise discretion favourably.

3)Sorry I didn't point this out to you in my earlier post. If you choose to submit a fresh application, then you won't be able continue working for your employer. Actually, effective at the moment, you shouldn't be able to work for your employer as you haven't got any valid leave (your previous leave to remain already expired I gathered). On the other hand, if you choose to appeal the previous tier 2 visa application which you were refused then you've got 10 days from when you received the refusal letter to lodge an appeal against the decision. If any appeal is lodged within this time, then you can continue working for your employer until a decision is made on your appeal application.

This is my advice to you, BUT make sure you seek plenty of it where possible.

Good luck

[mandy_h]

Hi pricesoft,

thank you so much for your input!!

i've spoken to HR and they are thinking to give the appeal a go even if I said according to experiences, there is little chance I'll win. They are going to issue me a new certificate and prepare a cover letter to do the paper appeal (again, i've told them the new document is not allowed)They said if the appeal is not allowed we will go for a fresh application.

Just want to confirm if this way is applicable? I'm aware that i could withdraw the appeal before the result comes out and send out a fresh application on the same day. I'm not sure if I could wait until the result come out and make an out-of-time application?　What's the difference between these two options?

I was going to just send out a new application within my 10 days allowance. but it seems like the company wanted me to appeal first and see how thing get on. I'll follow what they suggest even though all the cases suggested it's better to send out a new application.

Thank you very much again!

Mandy

[mandy_h]

So HR have decided to issue a new CoS, but this time with a different occupation code entirely. They want to change my job title to another code where my current salary meets the minimum salary requirements.

They also suggest that I lodge an appeal and include my new CoS, claiming that new evidence has arisen since my application, that I should be able to claim the 20 points for appropriate salary and thus be granted leave to remain.

I have concerns with both parts of this plan:
1) That changing job title shortly before application is grounds for refusal
2) That, because Tier 2 applications use the Points Based System (One Stop), it's not permitted to bring new evidence to the appeal.

Am I right in thinking this? If so, can anyone point me in the direction of some official documentation to this effect so I can justify my concerns to HR?

Thanks in advance for any help,

Mandy

[Greenie]

See here

http://www.freemovement.org.uk/2011/05/ ... ls-to-end/

you are right you can't rely on new evidence relating to the awarding of points in a points based system appeal.

[mandy_h]

Thanks! That's just what I was looking for. My head's so full of different bits of rules and guidance.

So I need to submit a new application. Because the company would rather not increase my salary to meet the minimum required salary of the code on my original CoS, they want to change my job title and issue a new certificate of sponsorship under a different code. Could anyone advise of any potential issues with this plan?

Fingers crossed!

[johnjkjk]

Just curious- is a new application formally allowed at this stage, or is it a case of being accepted under discretion? Section 3C combined with the ministerial statement Greenie posted makes things unclear imho, as to how new grounds can be presented post-decision. It's clear that post-decision, the previous application can no longer be varied with new grounds since it "ceases to be an application" and that "any new information will fall to be dealt with during the course of appeal" however the ministerial statement talks of restricting the kind of new evidence that can be brought to appeal as that which 'should have been presented at the time of application' and alludes to the suggestion of making a new (paid) second application which contains the new grounds:

It is not right that the taxpayer should foot the administrative and appeals bill where this information should have been put forward as part of the original application or where a second application including all the necessary information, for which we will charge, is the most appropriate route to securing a grant of leave

This conflicts in my view, with the provisions of 3C, which was designed to uphold the 'one stop' principle of 'one application- one appeal'. Given this principle, instead of two applications, new evidence should be brought to the appeal, however if you can't bring new evidence to the appeal, and are forced to make a new (second) application, does this undermine the 'one stop' principle?

Assuming that the 'one stop' principle is a guiding principle rather than a rule, 3C leave extends during the 10 days whilst an appeal can be brought and so a new application at this point would technically be in time, but where would this end; how many refusal-application cycles can one then go through- indefinitely perhaps?

If it's discretion being applied to accept a subsequent application post-refusal, then I suppose it would be limited to one, but as I see it, new grounds post-decision is no longer clear. Can the caseworker claim that the one-stop principle applies (in spite of the shift of new grounds from appeal to application) and thus reject the second application, purely on the grounds of it being a post-decision application? Does the fact that the ministerial statement recognise that information can go into a second paid application move it from being discretion to a right?

[Greenie]

The one stop principle does not prevent a person from making a subsequent application once 3C leave has lapsed. PBS applications do not require the applicant to have extant leave in order to make a successful application. Refusal letters will usually even state that the applicant can make another application
If they wish. A subsequent application is considered on its own merits.

[johnjkjk]

I see, but that brings us back to the point of how many refusal-application cycles are then allowed? Is it assumed that it will be limited to one additional application following initial refusal?

[Greenie]

There is no such assumption as there is nothing in the rules which limits the number of times a person can make an application. However once a person is an overstayer they will not have a right appeal against a subsequent refusal unless the the refusal is accompanied or followed by a decision to remove.

[johnjkjk]

And is an appeal always offered if the application was made when there was valid leave (either actual leave or by virtue of 3C)?

[mandy_h]

Hi Johnjkjk,

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

Paragraphs 3.2 seem to say that it is not permitted to submit a fresh application while your leave is extended under 3C. So any new application will be an 'out of time' application, and be considered at the caseworker's discretion!

Out of time applications do not qualify for the right to appeal, so there is no possibility of the 'refusal-application cycle' that you mention.

But, from reading around the forum, people generally seem to have been successful where they have reapplied as overstayers, so long as it's less than 28 days.

[johnjkjk]

Well it does rule out fresh applications for variation of leave and the example is quoted of student to marriage. A clear distinction however is made on the basis of varying the grounds of leave, which I interpret as changed circumstances/new information, within the same leave category under which you have already applied. But it does appear to rule out a fresh application by noting that under the one application-one appeal principle ie variation of grounds should be presented at appeal.

My debate in the posts above was concerning the fact that whilst it's not expressly clear whether fresh applications are formally allowed, 3C seems to rule this out in favour of an appeal but the written ministerial statement seems to say that it's acceptable (by alluding to presenting such information in a fresh application rather in an appeal).

The minister's statement therefore is in conflict with the rules. If he wants new information to go into a fresh application, they should change 3C to allow for this, within reason.

I personally don't like when things as simple yet critical such as this should be left to the discretion of a caseworker, as discretion can't really be challenged in a court, which is likely to find in favour of the UKBA, unless Article 8 comes into play.

[Greenie]

Fresh applications are formally allowed but not whilst the applicants leave is extend by virtue of section 3C.

[Yen]

Could you please let me know how it goes.
I got refused because hourly rate is 6p short.
Because we work 40 hours instead of 37.5 hours so I was wondering if I can make a new application decrease the working hours to 37.5. then I will meet the criteria.
Please help me.