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Senior Partner
Senior Partner, Solicitor
Category: UK Immigration Law
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Experience:  Solicitor
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Hi, I filed my in country application for Tier 1 (General)

Resolved Question:

Hi,

I filed my in country application for Tier 1 (General) on 06.03.2011 and my last Tier 1 (PSW) expired on 17.04.2011.

Received the refusal on Tier 1 (General) on 22.08.2011 with the right to appeal.

Appeal was filed on 05.09.2011 and due for hearing on 24.10.2011

My employer is A rated sponsor and ready to assign me a COS. Can I withdraw my appeal and submit a fresh application on the same day?
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  Senior Partner replied 2 years ago.
Why was your application refused?
Customer: replied 2 years ago.

They were unable to verify my education documents (Masters) from India.

 

I want to put a fresh application and put my Bacherlor in as its from the well know university in India and easy to verify.

 

Also my wife is 7+ month pregnant and not comfortable to take long flights. We have GP's letter to support this that she should avoid long flights in this condition.

 

 

Expert:  Senior Partner replied 2 years ago.
I now see that you have asked the same same question from another expert. I broadly agree with what he told you. Under the rules, if you submit a new application , it will be treated as a variation of the application you have already made. That is I believe why the procedure suggested by the other expert works. So I would submit the new application and tell them it is to be treated as a variation of the application under appeal.
Customer: replied 2 years ago.

but its not a variation of application under appeal. if i withdraw the appeal as suggested by the other expert then the variation does not apply and if you file a variation request you dont need to pay the home office fees again.

 

What do you suggest? shall i pay the home office fees on the new form or not

Expert:  Senior Partner replied 2 years ago.
If you wish to file a variation then you have to file the same application as you would do for a new application this is covered by rule 34 of the immigration rules and yes you have to pay the fee. I would not withdraw the appeal at least until after they have accepted the new application
Customer: replied 2 years ago.

Sorry one last question. My appeal is due on 24.10.2011 so do you suggest the following

 

1) Prepare new application and post it by 23.10.2011

2) When shall I fax the letter to Tier 1 Tribunal for the withdrawl of appeal?

3) What shall I tick on the application form. Do you currently have an appeal which is yet to be heard? YES OR NO. Following are the options on the form

 

Has the date of leave, as stated in your passport, now passed?

 

Yes - You are not able to submit a further fresh application. However, you can, if you wish, provide additional grounds to the outstanding appeal

 

 

 

 

Expert:  Senior Partner replied 2 years ago.
I would submit the application as soon as possible.
i would not withdraw the appeal at least until you have go tan acceptance of your application . I would write and say you have submitted a variation ot your original application and suggest the appeal be adjourned

Tick Yes

I do nto guarantee you will be successful but it is worth a try . it is important that you submit the application saying it is a variation of your original application under appeal and that you do so before the appeal is heard. Once the appeal is decided then you cannot make a variation or submit a further application.
Senior Partner, Solicitor
Satisfied Customers: 13244
Experience: Solicitor
Senior Partner and other UK Immigration Law Specialists are ready to help you
Customer: replied 2 years ago.

Its so confusing. I dont see any where on the UKBA site or Tribunal site that you can vary an original application under appeal. The following guideline published on UKBA site, clearly say you can not vary an application under appeal

 

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

 

 

Expert:  Senior Partner replied 2 years ago.
Yes I am aware of the argument in the guidance that you can only vary before the appeal but in practice the tribunal will consider new evidence including a variation application. It is up to you but the alternative is just to pursue the appeal without the application and if you lose then you have no options but to leave and apply from outside.
Customer: replied 2 years ago.

I cant be satisfied with the answer. I believe UKBA and Tribunal are two seperate organisations. So I am sending the application for Tier 2 to UKBA or to the Tribunal?

 

Expert:  Senior Partner replied 2 years ago.
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