New application = cancellation of current leave?

This is bull.  This is not a 'loophole', and I have never heard of this kind of abuse being widespread.  It is just stupid.  And it will result in thousands of people losing jobs, as when someone applies for ILR after 5 years on a work permit there is no way an employer is going to be happy for them to be off work for 10 weeks while it is processed, so they will be fired....

...and if they are fired, they won't get ILR.  The penny drops.  It is designed to stop people on employment categories getting settlement.  NOW I understand.

 

Vicky

I think what Garry is saying that people applying to change visas in country do things (like getting pregnant, getting ill, various other reasons) that frustrate their removal from the country.

What they are saying is that when you submit you submit and if they deny you based on your submission, you can't claim anything "new" that came up in the intervening time to be grounds for an Article 8 appeal.  For reference, Article 8:

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

But if they still have a valid leave with plenty of time left before the application process, removal wouldn't have been an issue anyway!

Well if that is what Garry is saying, it is totally different from what he has been intimating.

The reason they are trying to say this is that when they take several years to make an application people then build up a private or family life whilst waiting for the decision.  If the decision is negative, a judge will take into account these article 8 rights, allow the appeal, and it proves embarrasing for the government.  The thing is, the government can't decide what an applicant can and can't claim when talking about human rights, it is the matter for the courts, so again they are talking bollocks.

Vicky

That's right, Vicky. The other new rule that goes along with it is that an in-country application can *ONLY* be made on extant leave from a prior application or entry clearance.  Those two rules work together to close the loophole.

It's a cycle.  The system gets abused.  People get angry about it and make some rules.  The rules hurt the lawful and well-intended people.  And those are the people that shouldn't be hurt.

If there is *real* concern about this, I can try to get a reading on where it is next Wednesday at the Metlock briefing.  The only plausible objection that's come up is the conditions of leave when a person's status is pending - which seems reasonable.  Otherwise, I can't understand why everybody has gone so totally WEIRD in this thread.  

Otherwise, I can't understand why everybody has gone so totally WEIRD in this thread.  

I would presume that it's because you said:

So when the rule activates, if you try and switch from T1 into marriage, your T1 will be cancelled the day UKBA receives your application.  While the app is being processed, you will be in an unpermissioned pending status. 

"Unpermissioned pending status" sounds very much like "will lose the right to work, to use the NHS, etc."  I have a hard time understanding in what universe this could be reasonable.

It's a cycle.  The system gets abused.  People get angry about it and make some rules.  The rules hurt the lawful and well-intended people.  And those are the people that shouldn't be hurt.

This situation wouldn't arise if decisions were made quicker.

And everyone went wierd because of the reasons given earlier...my example of a PSW or Tier 2 switching to Tier 1 and being refused is something that will happen on a daily basis.

Vicky

And everyone went wierd because of the reasons given earlier...my example of a PSW or Tier 2 switching to Tier 1 and being refused is something that will happen on a daily basis.

Yes, I have to agree with that one, it seems like that will become a frequent and common one.  Someone wants to get out from under their current employer, thinks they have a good shot at the Tier 1 and then *BAM* looses their Tier 2 in the process.

Another would be a Tier 5 YMS getting a decent job offer and employer goes for the Tier 2, but they just don't qualify, *BAMMO* some kid out on his ass 1/2 way through his YMS programme.

Unless I am mis-understanding something Garry, that is what will happen, or do I have the wrong end of stick?

Yep, same here, the idea that no matter how much time I had left on my current leave, if I was denied a switch visa that I couldn't just stay on my current leave. Another £750 to get back a visa I shouldn't have lost would not sit well!

Another would be a Tier 5 YMS getting a decent job offer and employer goes for the Tier 2, but they just don't qualify, *BAMMO* some kid out on his ass 1/2 way through his YMS programme.

Current system.  The scenario you describe shows someone making a variation of duration and purpose to existing leave.  All such scenarios fall under the same principle: existing leave is modified for both purpose and duration.  A T1 switching to spouse is the same principle. 

Proposed system.  Variation of duration and purpose to existing leave is not allowed.  Finished.  As mentioned, they are trying to stop abuse.  They are supposed to do that, and it would be unconstitutional for them not to try to do that.

Other scenarios in this thread fall under the Wednesbury Principle which overarches *ALL* of English law.

Proposed system.  Variation of duration and purpose to existing leave is not allowed.  Finished.  As mentioned, they are trying to stop abuse.  They are supposed to do that, and it would be unconstitutional for them not to try to do that.

Other scenarios in this thread fall under the Wednesbury Principle which overarches *ALL* of English law.

So under the proposed system, any change in your circumstances is to be punished with cancellation of existing leave if you want to claim the rights that your new circumstances would otherwise afford.  I'm sure there are abuses of the system, but this seems flagrantly inflexible and in defiance of the common sense of anyone who came here legally, has contributed to the economy, and subsequently found, say, a British partner.  Or someone who came on a work permit and has proved their economic value to the extent that they would like to assert the extra rights that they could qualify for under the Tier 1 system.

The problem with the Wednesbury principle is that there is so much that already seems to us to be unreasonable and in defiance of common sense, that is nevertheless upheld, that we here in immigrant-land have absolutely no basis for concluding that common sense will prevail under this new system.

I would lay money on this not happening.  I think it would be foolish to worry.



Vicky

Proposed system.  Variation of duration and purpose to existing leave is not allowed.

This is such bull though. Some of the new visas exist on the principle of varying existing leave, like after a student visa getting a PSW visa, which itself is designed to transition into Tier 1 general, while others have built in that you can't switch in country, like YMS and dependent visas. And what about extensions? Applying for an extension of Tier 1 would be variation of duration of leave, but the system is designed for it- if leave is cancelled on application, does the ILR/probationary citizenship clock stop? Instead of putting in an inflexible new system which, quite frankly, is not going to stop abuse but is only going to screw over legit folks (oh gee, like most of the immigration changes ), how about delineating the visas that allow switching and the ones that don't, and not have exceptions and loopholes?