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Thomas
Thomas, Solicitor
Category: UK Immigration Law
Satisfied Customers: 7620
Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi, Recently UKBA returned my Tier 1 General visa application

Customer Question

Hi,
Recently UKBA returned my Tier 1 General visa application after 1 month as invalid due to non standard photo.
Now, I have 2 issues.
1. My current visa (WP-ICT) already expired (on 8th Jan 2011).
2. If I apply now (out of time application), am losing 5 points towards age criteria (had b'day in between).
What is my current immigration status and what should I do now?
Submitted: 6 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 6 years ago.

Hi,

 

Did you get leave to appeal upon rejection of the application?

 

Tom

Customer: replied 6 years ago.
Nothing specific to appeal or fresh application.
However, they mentioned 2 things.
1. Arrangements has been made to refund the fees (I paid through Postal order)
2. ''please be aware that your attempted application has been rejected as invalid under the immigration rules, if you choose to submit a fresh application, the date of your application will be the date that this fresh application form is submitted; that is the date that it is posted, delivered by courier or accepted at a public enquiry office. Please also ensure when submitting a fresh application that any documents enclosed cover the dates relevant to the fresh application (the date of your
resubmission).''
Expert:  Thomas replied 6 years ago.

Hi,

 

Okay, they would have mentioned leave to appeal if it was given. You can assume it was not.

 

You can submit a fresh application now with the correct format of photograph, though you are out of time sometimes the UKBA exercise common sense and grant the visa. You may or may not get it, but it is probably worth trying. I have had clients in similar circumstances be granted visas without the UKBA rejecting the second application but I'm afraid there is a lack of consistency so there is no guarantee of success.

 

A further complication, if it applies to you, is that you will be taken to have the points you have at the date of the second application. If that means that the points you have a decreased by 5 as a result of your recent birthday then this is a further reason which they might choose to reject, but, again, you can hope that they exercise their discretion on the basis of common sense.


If you choose to submit the second application then I would do so with an extensive covering letter explaining the previous application and the reasons why you incorrectly sent the wrong photo (honest mistake, a misapprehension of the requirements etc), attempting to appeal to their sense of fairness and common sense.

 

Had you not overstayed (although I accept this was out of your control to an extent) for 28 days then I would advise you to return home and make the application from there. The difficulty is that you have technically overstayed longer than 28 days and as such this is now a general ground of refusal that the UKBA could avail themselves of if you make an application out of country from home.

 

Sorry to say, but this is a complicated situation you are in. I would have thought, particularly as they have refunded your fee, that a further application in country would be worth a shot.

 

If this is useful please kindly click accept so that I may be rewarded for my time. You will be free to ask for follow up questions.

Kind regards,


Tom

Customer: replied 6 years ago.
What will happen if UKBA reject the new application? Assuming there will be no right to appeal, can I go for judicial review?
And, as of now, can I legally stay in UK for 28 days from the date of the letter sent by UKBA or I am already an overstayer?
Expert:  Thomas replied 6 years ago.

Hi,

 

I'm afraid that you are already an overstayer, although you may get some traction by arguing that you should be regarded as such if they reject your further application and, as above, you should make this point in your covering letter to them.

 

Judicial review is an option open to you but you would certainly need a solicitor/barrister to act on your behalf and this would be quite expensive.

 

Hope this clarifies, if so please click accept.


Kind regards,


Tom

Customer: replied 6 years ago.
Is it Ok to send the old form and same documents with new photo and payment and request them through a cover letter to consider my application based on previous submission date?
Do I need to post it again or can use Public Enquiry Office of UKBA for quicker response?
Expert:  Thomas replied 6 years ago.

Hi,

 

No, I'm afraid not. You will have to use a new form dated as at the date you complete it. You cannot request they consider the application from the previous date, they won't do that but you can explain why you consider that your overstay should not prejudice your new application (ie. based upon your honest mistake/misapprehension or (if applicable) not receiving the rejection back from the UKBA).

 

You can post it again by registered or special delivery. It takes two weeks to book an appointment and it is more expensive. The advantage is that you KNOW they have received it and it is acknowledged, whereas with post there is always a slim chance that it may get lost in transit.

 

Please click accept. I will continue to answer your questions free of charge.


Regards,


Tom

Customer: replied 6 years ago.
Then I will lose 5 points towards my age (if I apply now) and will be not eligible for Tier 1.
Out of country Tier 1 applications has been stopped since end December.
Do you still think I should apply again?
Expert:  Thomas replied 6 years ago.

Please click accept, I will then answer your follow up question.

 

Tom

Thomas and other UK Immigration Law Specialists are ready to help you
Expert:  Thomas replied 6 years ago.
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Customer: replied 6 years ago.
Where can I get similar cover letter or who can help to draft one for me?
Expert:  Thomas replied 6 years ago.

Hi,

 

There is not set format, your situation is very unique.

 

You can ask a solicitor to draft it for you. It should cost around £40-50+VAT.


Tom