# FLR(M) Refused: Appeal or Reapply



## Skasunic (Feb 11, 2017)

Hello all, this is my first post on this forum. I am a US citizen in the UK who recently applied to switch from a Tier 4 into FLR(M) after getting married to a British citizen in January. We applied at the Solihull PEO on January 25, 2017 using financial catagory A combining my husband's income and my own income from working on my Tier 4. When we applied I was a few days away from receiving my 6 month payslip with my company. As my hours for January were completed, my company was able to provide a letter confirming all of the information for January's pay and when it would be deposited. We knew that this was a risk, but decided to take it as my Tier 4 visa was going to expire on January 30, 2017, a day before I received my 6 month payslip. As such Solihull PEO was not able to give us a decision on the day and asked us for more bank statements to try and consider our application under financial category B (although I knew we didn't make enough using this category). When I sent them these bank statements I also sent them my January payslip and bank statement showing it had been deposited as at that point I had received my 6 month payslip. However, a week later we received a refusal notice, citing that I had not been at my job for 6 months and therefore could not combine my income with my husband's, and subsequently did not meet the financial requirement. I have been given 14 days to file an appeal or leave the country. Home Office has kept my passport and BRP. Would we have any grounds to appeal? I understand that the day of which we applied I was a few days away from being at my job for 6 months, but they had been supplied with my 6th month payslip and corresponding bank statement during their request for extra documents since as at that point I had been at my job for 6 months. Therefore, this wouldn't necessarily be new evidence if taken to an appeal...at least I think? We have also considered reapplying at Solihull PEO next week, but am a bit concerned about being class an overstayer ( my Tier 4 expired whilst waiting for PEO decision on FLR(M)) and the fact that PEO did not return my passport or BRP with my refusal notice. How am I suppose to reapply at PEO before 14 days without my passport? Is there a way I could get it back or pick it up from Solihull PEO? Also, now that my FLR(M) app has been refused, are my work rights null and void? If I apply next week will they not consider my pay anymore? My work is willing to help out as much as they can within their legal right. My visa expired less than 28 days ago, and one HR member mentioned that they think they could keep me hired for at least 28 days, if this is true then maybe reapplying (give the passport situation being fixed) would be an option? It has also been brought to my attention that if I apply for an appeal, and then withdraw, I would receive 28 days to launch a new application and could retain my work rights during the whole process...is this a better option? Thank you for you time and consideration of this mess of a case. Just feel so defeated as I just want to start my life with my husband in the UK and cringe at the prospect of possibly having to go back to the US alone.


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## nyclon (Apr 3, 2011)

It would be helpful if you posted the actual wording of the refusal letter leaving out any personal information like your name. Please use paragraphs as a huge wall of text is very difficult to read.

You must have a valid visa to apply in person. Since your visa has expired you are no longer eligible to apply in person.


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## Skasunic (Feb 11, 2017)

I apologise for the block of text and will be mindful of using paragraphs moving forward. I typed that on my phone so wasn't really thinking about that. 

My refusal letter states:

"We have considered your application for leave to remain and have refused it. If you believe we have made an error you can appeal to the First-Tier Tribunal. 

You have 14 days to after the date on which you were sent this decision to make an appeal application. Instructions on how to appeal can be found in the enclosed documents.

If you do not appeal and do not have any other legal basis to remain in the United Kingdom you must leave the country."

On a separate page it says,

"At the date of application you had not been employed for a period of 6 months with ********, therefore we are unable to take your earnings into account for calculation under Catagory A. Your sponsors' basic salary plus an average of commission etc earned over the last six months x 12 = £17,766.78

You are unable to meet the financial requirement of £18,600 in catagory A.

....

You are therefore unable to meet the requirements of E-LTRP.3.1 of Appendix FM to the Immigration rules. Therefore your application has been refused as you do not meet the requirements of Paragraph R-LTRP.1.1 (c) (ii) with reference to E-LTRP.3.1-3.3."


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## nyclon (Apr 3, 2011)

You were rightfully refused because you were not in employment for 6 months at the time of application. 

You can appeal using information/documents that was/were available at the time the decision was made so your pay can be taken into consideration for an appeal but I think you have to leave the country to make an appeal.


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## Skasunic (Feb 11, 2017)

Thank you for your advice. It says on my refusal that I can make an appeal from within the UK. I know that my refusal wasn't incorrect, it was just a very harsh judgement. 

The biggest worry I have is that they are holding my passport. If I file for an appeal will I receive my passport back? I think the best thing to do might be to file an appeal and then withdraw it to reapply at a PEO, but if I don't receive my passport back that doesn't seem plausible. 

Also, do you know if there are any consequences if I file and appeal and the court decides not to overturn the decision? I have heard others talk about being banned from making a visa application for a year and wasn't sure if that was true or not.

Gee, I really with Home Office would make this process more straightforward. :wacko:


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## nyclon (Apr 3, 2011)

I realise it's upsetting that your application was refused, but the rules do clearly state that if you are applying under Category A you must be in employment for 6 months with 6 months of pay slips and bank statements to back it up. 

You will not receive your passport back during an appeal. If you ask for your passport back it is because you are going to voluntarily leave the country. In which case they will hold it until you are about to get on the plane.

As I said you *CANNOT* apply at a PEO because your current visa has expired. You can only apply in person if you have a valid visa. Since your visa is expired you *CANNOT* apply in person. If you want to apply again you can apply by post up to 28 days after your visa has expired.

I am not aware of a ban if you have an unsuccessful appeal.


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## Joppa (Sep 7, 2009)

If you have right of appeal, which you appear to, then you can appeal after your visa has expired but it must still be within the window given to you, which is 14 days. You can no longer make in-country appeal after that, unless there are exceptional circumstances, such as your life may be in danger if you are sent home.


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## Skasunic (Feb 11, 2017)

Okay. To be clear, I completely understand the refusal. We knew it was a risk, but saw it as our only choice at the time because of my pending visa expiration and knowing that if I went back to the US we would not be able to count my finances. We spoke to multiple solicitors, the Home Office helpline, and other people who have been in similar situations, all of which advised us to not worry so much and that as long as everything else checked out that the ECO could use discretion. Obviously, that didn't happen and he made a decision that was well within his right to make.

28 days after my visa expired would be February 27th, while 14 days after the refusal is February 23... which of these dates do I need to be concerned about? If I make a postal application before the 28th will I still be classed as an overstayer? 

Also, if I reapply through a postal application before the 14/28 days (whichever one I need to be mindful of) am I able to use my income, or no? I am assuming that I don't have legal right to continue working in the UK, so I guess I am technically not employed anymore? Or is my work able to keep me as an employee until those 14/28 days have passed?

Thank you for your help!!!


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## skyf (Mar 26, 2015)

From what Joppa has said your window to Appeal in the UK expires tomorrow (13th)


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## nyclon (Apr 3, 2011)

The OP was given 14 days to appeal after receiving the refusal and has stated that 23 February is 14 days after the refusal.

The 13th is 14 days after her visa expired which has no meaning whatsoever.


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## Skasunic (Feb 11, 2017)

Does this not apply?

The EXPLANATORY MEMORANDUM TO
THE STATEMENT OF CHANGES IN IMMIGRATION RULES
PRESENTED TO PARLIAMENT ON 3 NOVEMBER 2016 (HC 667) states that,


"7.48. For those whose previous application was in-time but decided before their
leave expired, or was made out of time but permitted by virtue of the provision
outlined in paragraph 7.56, the 28-day period will be reduced to within 14 days of:
The refusal of the previous application for leave.

The expiry of the time-limit for making an in-time application for
administrative review or appeal (where applicable).
Any administrative review or appeal being concluded, withdrawn or
abandoned or lapsing.
This is to ensure that individuals to whom these circumstances apply also have 14
days to make a further application."

This suggests that I legally have the right to make another in-country application within the 14 days that my initial application was rejected.


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## Joppa (Sep 7, 2009)

Can you explain why this provision applies to you?


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## Skasunic (Feb 11, 2017)

I made an in time application. It suggests that within the 14 days a further application could be made. Another member of the forum has passed this along to me as proof that I could make a new application, although if this incorrect please let me know!!

This is the link they received the information from:

https://www.gov.uk/government/uploa...e/564937/57079_-_HC_667_-_EM__memorandum_.pdf


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## Joppa (Sep 7, 2009)

Yes, you have. No one is questioning that. So your choice is either to appeal or make a fresh application within 14 days.


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## Skasunic (Feb 11, 2017)

Sorry, I have received a lot of messages on other forums that I have no right to make a new in-country application within the 14 days...either make an appeal or leave the country and reapply, so I just wanted to clarify which statement was correct.


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## Joppa (Sep 7, 2009)

The rules allow you to appeal or make a fresh application (and pay again) within the time allowed (14 or 28 days).


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