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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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I was under Tier 1 (PSW) and my visa was valid till on 17.04.2011.

Customer Question

I was under Tier 1 (PSW) and my visa was valid till on 17.04.2011. I filed application for Tier 1 (General) on 06.03.2011 and received a refusal on 24.08.2011. Main ground for refusal was they were not able to verify my educational documents from India and I have been given the right to appeal. Appeal was filed on 05.09.2011 and is due for hearing on 24.10.2011. I have been working with my current employer for more than 2 years now and they are A rated sponsor and have free COS they are ready to allocate COS to me. I want to know can I withdraw my current appeal and file a new application for Tier 2 (General) on the same day. My previous visa expired on 17.04.2011 but I am still legal under section 3c
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 2 years ago.

Hi,

 

Do you have a solicitor?

 

What are their opinions of your prospects for success on appeal?

 

 

Kind regards,


Tom

Customer: replied 2 years ago.

They are not 100% sure about the success of appeal. Therefore I want to withdraw the appeal and file a new application.

 

Just want to confirm if this is allowed or not as my previous visa is already expired on 17.04.2011 but again the leave to remain is extended under section 3c

 

 

Expert:  Thomas replied 2 years ago.
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Expert:  Thomas replied 2 years ago.
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Expert:  Thomas replied 2 years ago.
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Customer: replied 2 years ago.

Dear Tom,

 

I am not satisfied with your answer as the UKBA guidelines below state otherwise. I have highlighted text in bold which state otherwise

 

3.2. Applications lodged during leave under sections 3C and 3D

While either section 3C or 3D leave is in force, the applicant is not entitled to make

any more applications for variation of leave to enter or remain. So even someone

who marries after making an application to remain as a student cannot, while they

have leave under section 3C, make a fresh application on the basis of the marriage.

On the other hand, it is possible to vary the grounds of an application already made,

even by introducing something completely new. A student application can be varied

so as to include marriage grounds. If an application is varied before a decision is

made, the applicant will be required to complete the necessary prescribed form to

vary his application. If an application is varied post decision, it would be open to the applicant to submit further grounds to be considered at appeal. As a result, there may be little difference in practice between a fresh application and a request to vary an existing application. The distinction is made to ensure that all a person's grounds for wishing to remain in the UK result in one decision and thus one appeal. This 'one-stop ' principle - one application, one decision, one appeal - is essential to the

operation of the appeal process that was introduced in the1999 Act and has been

extended by subsequent Acts.

 

However section 3C makes a clear distinction between the decision on the

application and the appeal against that decision. Once an application has been

decided it ceases to be an application and there is no longer any application to vary

under section 3C (5). So any new information will fall to be dealt with during the

course of the appeal rather than as a variation of the original application.

 

When section 3D applies leave has been curtailed or revoked. Thus there is no

application for the variation of leave and the question of whether an application can

be varied or not does not arise.

 

 

Expert:  Thomas replied 2 years ago.
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