Rejected application - Evidential Flexibility

[saeed123]

Zimba since you have extended yours, did you send the first one?

Yes, the FPS report in the first month of employment shows the starter's name and date

Hi Zimba ,

I started employing staff from Jan 2015.
But I started giving FPS submission from jan2014 ,I was paying myself diarectors salary from Jan 2014 .so do I need to submit FPS from jan2014 or from jan2015

[zimba]

First FPS report AFTER employing someone you are claiming points for, Not the very first FPS you submitted !
So if you hired two people in Jan 2015 and August 2015, you need to submit first FPS report AFTER ANY NEW EMPLOYEE JOINED that shows starting dates for him/her which you are claiming points for. So it becomes FPS reports of Jan 2015 and Aug 2015.

The logic is that you might want to score points for the the most recent 12 months of their employment but your employees could have been hired for longer than that. HO wants to see when the employee was hired, you were a director and remained the director throughout the period of employment, hence the first FPS after employment creation with starting date is required.

[saeed123]

Many thanks Zimba for the clarification .

[Yasm33n]

First FPS report AFTER employing someone you are claiming points for, Not the very first FPS you submitted !
So if you hired two people in Jan 2015 and August 2015, you need to submit first FPS report AFTER ANY NEW EMPLOYEE JOINED that shows starting dates for him/her which you are claiming points for. So it becomes FPS reports of Jan 2015 and Aug 2015.

The logic is that you might want to score points for the the most recent 12 months of their employment but your employees could have been hired for longer than that. HO wants to see when the employee was hired, you were a director and remained the director throughout the period of employment, hence the first FPS after employment creation with starting date is required.

Thnxxx zimmba
Your information always add value to our knowledge

[The Druid]

This is what my solicitor has come up with for my admin review. I was refused for two reasons: 1) For not providing the recent CAR and 2) For not providing the FPS report. However, the fact is I did send them a recent CAR from 2016. In regard to FPS, I only sent them FPS receipts and not the report with employees' names and PAYE details. What do you guys think of the below written paragraphs? I am not satisfied with it as it makes no reference to the second reason of refusal, and planning on applying for admin review myself and write everything in a common man's language. What are your views?

We write with respect to our above named client who has application has been refused

for failure to meet the requirements under the Immigration Rules and Policy for grant of

Further Leave to Remain as a Tier 1(Entrepreneur) Migrant. How long did the AR take ?

We respectfully submit that the decision is erroneous and we request that the decision is

reviewed and our client’s application granted as the case working team made an error in

failing to consider the Home Office Published Guidelines with respect

to Further Leave to Remain applications, specifically in relation to the policy of

Evidential flexibility as contained in Paragraph 245AAA of the Immigration Rules.

We refer to the our client’s cover letter sent in support of his application and we refer page

one of the aforementioned cover letter in which our above named client listed ALL the

documents sent in support of his application and amongst others also included ‘ Current

Appointments Report including the filing history page (14/03/2016)’. We note that a failure

to provide a Companies House Current Appointments Report for Kult Marketing Ltd dated

within three months of the application is listed as the reason for refusal in addition to non

acceptance of the evidence supplied by our client in furtherance of Paragraph 46-SD (h) of

Appendix A of the Immigration Rules.

We respectfully submit that the decision to refuse the application for further leave to remain

is erroneous as the Secretary of State has failed to adhere to the provisions of the Immigration

Rules as well as her own published policy guidance with respect to the principle of Evidential

Flexibility.

This brings into play the common law duty of acting fairly in the decision making process. In

R (on the application of Q and others) v Secretary of State for the Home Department [2003]

EWCA Civ 364 the Court of Appeal dealt with the principle of fairness as follows:



“69. ...It is further common ground that in deciding whether the applicant has so satisfied

him the Secretary of State must act fairly, which means both that he must set up a fair system

to enable the decision to be made and that he must operate the system fairly: see e.g. Gaima v

Secretary of State for the Home Department [1989] Imm AR 205, applying Re HA (Infant)

[1967] 1QB 617 at 630.

What fairness requires of course depends upon the circumstances of the case. The underlying

principles were stated thus in a well known passage in the speech of Lord Mustill in R v

Home Secretary ex Doody [1994] 1AC 531 at 560:

‘What does fairness require in the present case? My Lords, I think it unnecessary to refer by

name or to quote from, any of the other cited authorities in which the court have explained

what is essentially an intuitive judgement. They are far too well known. From them, I derive

that (1) where an Act of Parliament confers an administrative power there is a presumption

that it will be exercised in a manner which is fair in all the circumstances. (2) The standards

of fairness are not immutable. They may change with the passage of time, both in the general

and in their application to decisions of a particular type. (3) The principles of fairness are not

to be applied by rote identically in every situation. What fairness demands is dependent on

the context of the decision and this is to be taken into account in all its aspects. (4) An

essential feature of the context is the statute which creates the discretion, as regards both its

language and the shape of the legal administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the

decision will have an opportunity to make representations on his own behalf either before the

decision is taken with a view to producing a favourable result; or after it is taken, with a view

to procuring its modification; or both. (6) Since the person affected cannot usually make

worthwhile representations without knowing what factors may weigh against his interests

fairness will very often require that he is informed of the gist of the case which he has to

answer.’

We note that our client infact made reference to the existence and provision of a current

appointments report in his cover letter, sent with his application, a copy of which is in the

possession of the Secretary of State currently, and that ought to have put the Secretary of

State on notice that the document was in existence and not having considered this document

properly in deciding our client’s application, has been unfair to our client and we argue

further that the principle outlined by Lord Mustill applies to our clients case and the

circumstances of his case ought to have been considered before a decision to refuse was

made. We believe that had that been the case, our client would have had an opportunity to

provide any missing documents from those submitted.

We contend further, from the above, that our client has been unfairly treated by your refusal

of his application for further leave to remain and we invite you at the point to review the

decision, withdraw it and grant further Leave to Remain.