It sounds from various internet forums as if the British High Commission at Canberra is getting tough on applicants for Tier 1. Where applications have been submitted that include evidence (e.g. payslips) that show the person has worked for more than the permitted 12 months while on a working holiday maker visa, they are being refused on the basis of previous breach of a condition attached to leave. See immigration rule 320(7B) and previous posts on the re-entry ban if reading about this for the first time.
A ‘condition’ has a very specific legal meaning in immigration law. It refers specifically to the terms stated in the visa document in the person’s passport (called an entry clearance, technically). If the visa states that work must not exceed 12 months and the person has worked in excess of 12 months, they have indeed breached a condition attached to their leave. Even if the visa refers to working ‘with permission’, because the immigration rules are quite specific about the 12 month rule (see rule 95), that would also amount to a ban on working in excess of 12 months.
This then leads to a 12 month ban from the UK, starting from when the person left the UK.
There isn’t really anything that can be done for a person who falls into the above category and whose Tier 1 application is refused on this basis. An administrative review is a waste of everyone’s time as the same rule will be applied.
However, if the rule is being wrongly applied, an administrative review should be attempted. If that fails and there is a solid argument, with evidence, that the rule has been wrongly applied, it is possible to lodge what is called a judicial review. Administrative reviews are conducted by Entry Clearance Managers, who I have to say do not have a good track record in correcting silly decisions by their minions.
Judicial review is not a cheap process. It requires a UK-based solicitor, who lodges the application at the High Court in the UK. A barrister will usually be required, which also racks up the expense. If you are in this position, there is advice in finding solicitors in the ‘Getting advice‘ page.
34 responses
I am currently in the UK on a WHV and have been working for 70% of the time I have been here. The primary reason for my visit was a holiday which, as you can see from my passport can be substanciated.
These current rejections for people wanting to transfer from WHV to Tier 1 are worrying and come as a complete suprise to everyone I speak to. Both my partner and I came to the UK under the belief that the WHV allowed us to stay for no more than 24 months and and work here for no more than 12 months which we have been very conscious of. I am now planning to return to my home country and apply for a Tier 1 as conditions have changed and Tier 1 more suits my new requirements.
I would like to know that if I leave the UK now, would that not also be breaking the conditions of my visa by the same logic that people are being refused a tier 1 visa?
That point aside, there is no mention anywhere on the home office website that a condition of a WHV is to maintain a 50/50 work / holiday balance. The wording only insinuates that a WHV holder cannot work for more than 12 months of their 24 month stay.
Given the large number of people who appear to be affected by this inconsistency what can be done to ensure that this matter is reviewed and consideration given to the affected?
To add to my previous post, if I leave the UK with having spent more time working here than on ‘holiday’ and I am breaking the conditions of my WHV, then would I not be elligible for 26.17.4 When does rule 320 (B7) not apply? See following link: http://www.ukvisas.gov.uk/en/ecg/chapter26
When:
“the applicant was in the UK illegally on or after 17 March 2008 (date of announcement) and left the UK voluntarily before 1 October 2008 (please read 26.17.5 below).”
Thoughts?
Freemovement – the issue here is not those people being rejected who have worked for more than the permitted 12 months – as you say those people should have their entry clearance refused as they have in fact breached the conditions of their working holidaymaker visas… The issue at heart is that Entry Clearance Officers at the British Consulate in Australia are rejecting entry clearance applications for those that previously held working holidaymaker visas and worked for a percentage that is greater than they holidayed. They are rejecting these applications under section 320(7B) of the immigration rules saying that they have breached a condition attached to their working holidaymaker visas – the condition being that the main reason for the working holiday must be holiday and that “work must be incidental to holiday”. There is no guidance or examples of what makes work incidental to a holiday in the immigration rules or guidance notes which means that this condition is vague and therefore open to interpretation. The ECOs in Australia are therefore using their own, new interpretation (and remour says a 50% rule) that differs to the interpretation used for the past 5 years and that is currently being used by all other Consulates who are currently approving such applications.
I hope this clears the basis of the uproar for you…
One question – the 1st March concession to the 320(7B) rule – if those who have worked no more than 12 months on their working holidaymaker visas who have been rejected for the “incidental” condition stated above left the UK after the 1st March 2008, would this concession apply to them?
Many thanks
Firstly, I would be surprised if the visa itself actually had an immigration condition stated on it of ‘work must be incidental to holiday’. If not, subject to what is said in the original post about a reference to the immigration rules that effectively incorporates a condition, there is no such condition.
Even if there were, I think there may be a very strong case for arguing that the condition has not been breached in any event. Those in this situation should definitely apply for administrative review, and Canberra BHC may come to their senses. If not, judicial review is the only remedy, but there might well be good grounds. Quite a lot depends on the individual case, though, and factors such as the type of work, percentage of time worked, reason for cutting short the two years and so on are potentially relevant. Some of those affected may want to consider getting together to share costs and make a joint application for JR as a sort of test case. Hopefully it won’t come to that.
Thanks for your reply freemovement. I agree that each individuals circumstance will vary according to the variables you stated. The condition of the Working Holiday Visa is that:
“Work in the UK must not be the main reason for your holiday, so you must spend no more than 12 months working.
You can take most types of work, including voluntary work, but you cannot set yourself up in or run a business, or work as a professional sportsperson. You can choose when to work and when to take your holiday breaks, but you must not work for more than a total of 12 months or you will be breaking the conditions of your stay.”
From this statement it is not hard to see how the Canberra BHC could interpret the rule to rule that anyone who has spent more time working than ‘holidaying’ should be deemed in violation of their Visa.
It is crazy to think they can extend this interpretation to mean you should spend 50% of your time working and 50% of your time holidaying.
Furthermore the 12mths you have to work in the UK are 12 concecutive months from the first day you begin working. Any time spent ‘holidaying’ during the ‘working’ time is not deemed as a ‘holiday’. Do I need to point out how ludarcist this rule is?
The Tier system has been running for three months now and already we have officals in Canberra interpreting the rules differently to other countries. This is a result of decentralising the application process . On the plus side, waiting / process / approval times are reduced significantly. I can only hope that Canberra wakes up to itself soon as I don’t fancy having to been emotionally dragged through an administrative review etc… Good luck to all who are also seeking steadfast resolution to this apparant oversight.
i also want to thank issues who has succinctly summed up the heart of the issue. beautifully done.
Thanks interested, issues and freemovement. My wife and I are on HMV’s and wanting to return on Tier 1’s.
Curiously, it appears that the supplementary questionnaire attached to HMV applications was amended circa july/august 2007 to include the reference to work for a maximum of 12 months or no more than 50% of your intended stay. It is application of this clause by ECO’s that is catching people out because even if you have worked less than 12 months, you will be assessed as being in breach of your visa if your time at work amounts to more than 50% of your stay. Note that it would also appear that travel outside of the UK does not count towards your ‘holiday’ time, nor do paid holidays from your work (which is singularly ludicrous).
Our supplementary questionnaire did not include this clause (may/june 2007); however it appears from forum posts that people who got their HMV’s and entry clearance around the same time as us are being rejected on the above reasons. Does this mean that the BHC ECO’s have the authority to retrospectively change the conditions of your visa? I would not have thought so, but that would appear to be the case.
I have complied with my conditions for my HMV and entry clearance in that I have not worked more than 12 months, and I am satisfied that my work has been incidental to travel. Our visa commenced Aug ’07, however we spent the first 3 months of it travelling in Europe. Since being here my wife and I have been on a trip of some sort at least once per month since we arrived (UK and Europe). The only thing stopping us from travelling more is the fact we need to work to pay for holidays…
BUT – as we got jobs a month after getting into the UK, if you apply the definitions above regarding travel and work to our situation, we have not actually holidayed at all, in fact we have worked 10 out of 11 months (if you get paid in a month it equals a month of work, regardless of the hours or for whom you worked – take a 3 week break and you still worked that month)! By retrospectively applying these new definitions of what is incidental, and what counts as work, I have now been retrospectively been made in breach of my visa, even though I am complying with the conditions PRINTED on my visa, the supplementary questionnaire submitted with my HMV, and the advice letter provided to me by UKBA which came with my visa.
What a crock.
My company has luckily agreed to sponsor me, however time is running out and I may be applying under the new Tier 2 arrangements. What is to stop the ECO’s retrospectively applying this clause to Tier 2 applications as well? Not much…
The saga continues…
Interested, that is a lot of wording to fit onto what is quite a small sticker in someone’s passport. I’m not sure what you are quoting but it looks like Home Office advice on the website or similar. Unless it is incorporated directly into the actual visa in a passport, it is not a ‘condition’ as such.
WTS, the words ‘intended stay’ could be crucial – if there are reasons a person’s original plans have been cut short, meaning that they have ended up working more than 50% of the time they were in the UK, that is different to a person who came to the UK for 13 months, worked for 12 and is now applying for Tier 1 on the basis of earnings during that time. You have an interesting point about travel outside the UK not counting, which it doesn’t according to the exact wording of the rules. However, that time spent travelling around Europe or wherever has to be relevant to whether the work in the UK was ‘incidental’. There’s a very strong argument there.
Yes those rules are stated on the website however we also had to fill in and sign a suplementary form (May 2007) which was submitted with the visa application which stated:
WORKING HOLIDAY – SUPPLEMENTARY QUESTIONNAIRE
Please note that 12 months employment is permitted only if you intend to spend a total of 2
years in the UK. If you intend to stay less than 2 years in the UK, the intended period spent
working must be reduced in order for it to qualify as incidental to a holiday. Please see further guidance on our website at http://www.britaus.net.
It does not define ‘incidental’ although it does mention a ‘reduction’ in the work time for holders that stay less than 2 years.
The passport text only states:
“Work restricted to 12 months. No Business or Professional Sports. No recourse to public funds for full 2 years.”
freemovement – what I need to know is that if those who are considered in breach of a visa condition leave the UK voluntarily after 17th March 2008 does the 17th March concession apply and do you think that ECOs should apply? I think the best chance we have of getting the refusal overturned is this concession so need to know what you think. I first read about this concession on your website so thank you!
I have also got my refusal to my Tier1 under General GRound of Refusal and paragraph 320 (7B) of the Immigration Rules. I was on a business trip to UK from 13/Apr/08 to 30/Jul/08 and visit visa is valid for 07/Apr/08 to 07/Oct/08. They somehow think that I worked in UK on business visa which is absolutely wrong and also overstayed (which I have not). So according to the ECO I also fall under people who have violated paragraph 320(7B) of immigration rules.
They have asked me for applying for an administrative review. To support my contest I have letter from my company which states that I was on a company sponsored business trip to UK for a period of 13/Apr/08 to 30/Jul/08. My salary slips shows that I was all through getting my salaries in India and second letter I am getting from my company’s client, where I went for business, stating that I was at their site for whole trip and I was only involved in business activities.
I want to ask my friends: What are the probability of my getting the refusal overturned? and also I would love to hear from someone whose 320(7B) refusal was overturned
Thanks!
Hi freemovement et al,
Does anyone have any information, or have heard anywhere, whether Work Permit entry clearances are being assessed in the same way by ECO’s? I can’t seem to find anywhere where people are reporting the same issues as with Tier 1 apps from HMV’s.
In connection to my previous email, I am writing a letter that I would be attaching with my administrative review request. In that I have written about all the mistakes committed by the ECO and I have requested ECM to look into those in context to the original documentary evidences I have attached with my Visa Application and additional evidences I am attaching with my review request.
Can someone throw some light on what all should be included in request and what are the probabilities of getting my refusal over turned.
Thanks!
Sorry, I’ve been busy the last couple of days. Interested, the ‘conditions’ (in the important sense of what conditions have been imposed on one’s stay in the UK that one might have breached) are the text on the sticker in the passport. If a promise of some sort was made orally or in writing to an ECO or whatever, that might be said to be an undertaking, but it is not a condition of leave. This might seem like a semantic and pedantic difference but it is important in law, and it is presumably why no other British embassy or high commission seems to be taking the approach of BHC Canberra – because they are simply wrong, legally.
I’m afraid I’d need to do a certain amount of research and work to cite you authority for the distinction I am drawing between a condition and an undertaking, and I’ve got some proper (in the sense of paid) work I really need to be getting on with!
Issues, on the face of it, the concession only applies to those in the UK illegally on 17 March. I suppose it could be said that the BHC is trying to have it both ways if they say the concession does not apply, since they are refusing on the basis of breach of an alleged ‘condition’.
It might be worth trying as an argument, but it’s a bit too-clever-by-half to be likely to succeed with the BHC itself (see reply below re: attitudes of ECOs and ECMs) and it probably wouldn’t wash with the courts either if you went for JR afterwards.
Wanting To Stay, I haven’t seen anything to that effect (i.e. other embassies and high commissions doing the same thing). As I’ve said above, I suspect that is because Canberra BHC are quite simply wrong.
UKBA Bashed, you would not be the first to criticise an ECO for silly mistakes, factual errors and so on. Tactically, however, anyone considering such an approach needs to have their head examined. I don’t want to come over too Yoda, but always ask yourself what you are trying to achieve. In this case, to persuade a jumped-up, ill-educated little Hitler to give you a visa. Insulting them is highly unlikely to achieve your desired purpose.
And please do not think for a moment that the ECM is some sort of neutral party. When you’ve seen as many ECM rubber stamps of crap decisions as I have, you’ll understand how little they care about the individual ‘customer’. And remember, there is no right of appeal any more, only the remote and very expensive option of judicial review.
Any correspondence with ECOs or ECMs should be deferential, perhaps with a slight tone of hurt, and should preferably take responsibility for the error that led them to refuse the application, for example by failing to explain your situation properly or not including the right evidence. Do not patronise them, they don’t like it, I’ve found. And for God’s sake don’t go for strident criticism, they just close ranks.
Welcome to my world, I’m sorry to say.
All,
Good news, it looks like the BHC in Australia has changed their minds in rejecting WHM who have worked more than 50% of their time in the UK.
They will be contacting all those affected and reviewing their applications by the end of this week.
Going forward this will no longer be an issue for Australians.
Finally!
Tuanny, tis good news indeed, thank you. Have you got a source for this?
With reference to upsetting the authority abusing cretins at the clearance post,can you tell me what happens if one subsequently wins an appeal? Can they still refuse to give the visa due to their offence taken? Or are they duty bound? I ask because i naively dared to criticise. And can you inform me what happens if they don’t provide their appeal defence bundle to A.I.T in time.Does this go in favour of the migrant in court?
Tier 1 Visa Entry Clearance in Australia
There has been some conjecture of late regarding Entry Clearance for Tier 1 visa applicants in Australia, specifically relating to refusals under Paragraph 320 (7b) HC 395, where the applicant had been deemed to have breached their working holiday visa conditions. A majority of these refusals were due to the interpretation of the policy wording below:
2.2. Work incidental to a working holiday
Working holidaymakers are expected to intend to take work in the United Kingdom as an incidental part of their working holiday. Those wishing to enter in the category should treat the work that they do as a purely incidental part of their holiday (which should be their primary reason for being here) rather than being the reason for which they have sought entry to the United Kingdom. Accordingly, working holidaymakers must not intend to spend more than 12 months of their stay in employment, and must intend to spend the rest of their stay holidaying.
The British High Commission in Canberra had then applied a 50% pro-rata calculation to the amount of time a working holiday maker may spend in employment whilst in the UK. They had stated that you must only work for half the time actually spent inside the UK, which is incorrect.
Through diligence and numerous phone and email correspondence by 1st Contact regarding this with the policy and decision makers, I am pleased to announce that this has now been rectified. All cases that fell for refusal on this basis will be reviewed and reassessed. The British High Commission in Canberra aims to contact all affected applicants by Friday 19 September. Furthermore, all applicants who have held off applying due to this can now move forward with their applications.
1st Contact has established very good communication channels with both the UK Border Agency and the High Commissions to ensure that our clients receive the best possible service. Should you wish to discuss your impending application, please do not hesitate to contact us.
Dear Freemovement et al.,
Thanks for a frank and enlightening response. As far as I understand from your response, I have to write a very soft but assertive letter stating my mistakes and misunderstanding that have happened.
Below are the exact wordings of the refusal:
You have stated on your visa application that you were working in the UK from 01/04/08 to 31/07/08 and you have submitted a letter from yourself confirming this. Your passport shows that you were in the UK on a visit visa from 13/04/08 to 30/07/08. The letter that you have provided from R systems states that you only worked for that company from 09/04/08 to 30/07/08, when you applied for a visit visa you said that you were going to the UK for 4 weeks for business meetings. You did not tell us that you would be working for 3 months. Because you have worked in the UK when you did not have permission to do so, your application is refused under paragraph 320(7b) of the immigration Rules.
Based on above I have arranged for 2 evidences:
* A Letter from my employer in India stating that my stay in UK from 13/04/08 to 30/07/2008 was purely for business.
* A Letter from my employer’s client, whom I visited in UK from 13/04/08 to 30/07/08, stating that my stay in UK from 13/04/08 to 30/07/2008 was purely for business.
Besides these evidences I have written a very humble, polite and assertive cover letter suggesting my mistakes in original visa application. Evidences, I produced with the application, are still with BHC, India and these documents are genuine and original.
Questions I would request you to answer:
* Do you think these evidence will make my review request stronger and they may overturn ECO’s decision?
* Do I require any other evidence that may help me?
* What are the probabilities of getting an overturn as my all evidences are genuine and true and now after these additional evidences, they can contact my company in India or their client in Uk to find out more about me.
Please help me by providing answers to these questions.
Thanks once again!
Sorry, too specific for me to be able to reply, and this blog isn’t a forum for giving out free legal advice to individuals.
…but I recommend you take a look at the IDIs (under policy and law on the UKBA website) on visitors to the UK working and what sort of business they are allowed to conduct. As a rule of thumb, nothing that involves being paid by a UK company, but other activities can still fall foul of the rules.
Hi
Can I please clarify that I am able to switch from a WHM into the new Tier 1 general visa if after working in the UK for 12 months?
I have returned back to Australia to process this but under “extensions” of the HMV on the at http://www.britaus.net is says that a transfer is not possible.
Hi,
Does the 12 months employment include paid holidays, e.g. if you work for 12 months starting January but your company gives you 4 weeks paid holiday during that time, do you get to finish in February as you have had a month off ? My assumption would be that it is a year including any paid holiday time.
Dear Freemovement,
The ordeal might have ended for Aussie, but not for Malaysian. I’ve been refused under the same reason where they concluded that I’ve worked 12 months out of my 14 months stay, which is 85% of the time.
The rejection happened on 17th Sept. But until now, I do not receive any calls from the BHC in Kuala Lumpur.
1. Should the mis-interpretation of rules be broadcasted to all of the local BHC ?
2. Should I escalate about the un-standardization of rules interpretation within the local embassy to the UK Home office or the FCO ?
I am going to submit my admisitration review next week but I don’t think the ECM will change their mind.
I need some advice here on how should I put pressure to BHC Kuala Lumpur in order for them to follow what BHC Canberra did.
Thank You.
Hi Freemovemnt,
A lot of useful information/gossip here and was trying to see through the haze and gain some clarity.
Like may people here I am here on a WHP visa. I work under my own limited company and was recently told (by a friend) that its likely that my Tier one visa application could be rejected based on the fact I have broken the restrictions of the WHP visa. Which is “No business or professional sports”
What is “Business”, I am a contractor that was advised to do this (in fact UK law basically stipulates one does this). Unbeknown I was possibly conducting “business”.
I don’t run or conduct business any more than any other casual/contractor/full-time person who goes to work and gets paid.
Any thoughts/comments/suggestions would be appreciated.
Thanks in advance.
Skillz, I’m glad you’ve found the site useful, but I’m afraid I can’t go into that kind of detail as I can’t give specific legal advice. I’d strongly recommend getting a lawyer in your situation. There is some guidance available in the ‘getting advice’ section. To a significant degree, you get what you pay for with quality of legal advice.
Hi Freemovement,
My husband Tier 1 application has been rejected recently. As his dependant mine has been rejected automatically too (submission together).
However, according to the BHC, only the main applicant is entitled for the Admin Review.
Does that mean that if the decision is overturned, then I need to re-apply as a dependant (which means that I need to pay the fees again ? ). This sounds very unfair.
Any idea how this works ?
Hi karen_tier1
As an interest to myself and possible future readers, would you be able to elaborate on why your partner was refused a tier 1 visa?
thanks,
Skillz
Plain & simple: I held a WHV from 2002-2004 and worked for 22 months of the 24.
However, I have been back working in SA since 2004 and planned on applying for a Tier 1. However, a consultant told me that my application will be refused as the HO will use my UK NI number and go back to 2004 to see how long I had worked for!
Then another company says no-the HO wont be going back so far especially as I am using my SA earnings for maintenance etc on the Tier 1.
So now am more confused than ever!!!
Hi Freemovement, I find this thread very useful. The comments posted about switching from Working Holiday Visa (WHV) to Tier1 – is the 50/50 working/holiday rule still used in deciding for Tier1? I hope not..:-) Any updates would be very useful. I am in London with WHV, came in feb08 and been working since Apr08 mid and plan to apply Tier1 in mar09 in India. Thanks again.
hello i need a advice from you.
currently i am living in uk under tier 1 post study worker.recently i applied for my wife and the fact is i dnt know that she applied before in uk as a visitor.than they refused it under 320 (7a).so i applied again for her and disclose everything.still we are waiting for result.
My question is if they gave her visa thats ok but if not what they gonna do and what i have to do for further step.
i will be very greatfull if u reply me.
thank you
shann
You’ll need to take some professional legal advice