TIER 1 EXCEPTIONAL TALENT VISA

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Tier 1 Exceptional Talent visa is no longer available for new applicants and has been replaced by Global Talent Visa under Appendix W of the immigration rules.

INDEFINITE LEAVE TO REMAIN TIER 1 EXCEPTIONAL TALENT ILR

Tier 1 Exceptional Talent Visa is no longer available for new applicants. The migrants who already have leave under Tier 1 Exceptional Talent Visa may apply for indefinite leave to remain under the Immigration Rules.

Compliance and requirements of Tier 1 Exceptional Talent Visa

The applicant must provide evidence confirming that he has fully complied with all the conditions and requirements of Tier 1 Exceptional Talent category throughout the five years’ time.

The Tier 1 Exceptional Talent applicant must have spent a continuous period of:

  1. 3 years lawfully in the UK, if their last endorsement by a Designated Competent Body was under that body’s criteria for “exceptional talent”, or
  2. 5 years lawfully in the UK, if their last endorsement by a Designated Competent Body was under that body’s criteria for “exceptional promise”

The relevant continuous period must have been spent with leave in one of the following categories:

  • Tier 1 Migrant (excluding as a Tier 1 (Graduate Entrepreneur) Migrant; or
  • Tier 1 (Post-Study Work) Migrant); or
  • Tier 2 Migrant (excluding as a Tier 2 (Intra-Company Transfer) Migrant).
  • Tier 1 Innovator

Absence from the UK for Tier 1 Exceptional Talent

The Home Office has become quite generous in allowing absence for maximum 6 months in a year, provided the applicant is able to provide evidence that such absences (if that long) were work or business related.

English Language for ILR Tier 1 Exceptional Talent

You can prove English language requirements by having either:

  • an English qualification at B1 level
  • a degree taught or researched in English
  • national of an English-speaking country

Life in the UK Test for Tier 1 Exceptional Talent ILR

Another important part of fulfilling the knowledge of language and life requirements for the Tier 1 Exceptional Talent ILR applicant is to pass the Life in the UK test.

The test is required under the Nationality, Immigration and Asylum Act 2002 and taken in order to test the knowledge of British life and sufficient proficiency in the English language.

DEPENDANTS OF TIER 1 EXCEPTIONAL TALENT MIGRANTS

Spouse / Civil Partner / Unmarried Partner of the applicant and their children who are already on dependant visas of Tier 1 Exceptional Talent Migrants, may also apply for ILR provided they also fulfil relevant criteria. If the partner has joined them before 09th of July 2012, he or she must have remained in the UK for two years’ time, otherwise he / she must have completed at least 5 years of residence in the UK as the applicant`s dependant, in order to apply for ILR.

If the dependants have not completed the required time period then they would need to apply for further leave to remain application while the main applicant may proceed to apply for ILR.

ADMINISTRATIVE REVIEW TO CHALLENGE ILR REFUSAL OF TIER 1 EXCEPTIONAL TALENT MIGRANT

Since appeal rights have been taken away from most of the immigration categories, Tier 1 Exceptional Talent ILR applicants whose Indefinite leave to remain applications are refused they are given right of administrative review against the refusal of Tier 1 Exceptional Talent applications.

This is a procedure where the applicant is given an opportunity to challenge the refusal by providing relevant arguments or documents in some cases.

It is mandatory for the Home Office to give reasons of refusal along with the notice of decision and to inform the applicant about their rights of administrative review. The reasons of refusal shall disclose all the issues / concerns of the Home office which have been identified by the immigration on the basis of the information / documents provided by the applicant or the information already held on record by the home office.

Time to Lodge Administrative Review

The applicants are required to make administrative review application within 14 calendar days to the Home office. It is really important to meet the deadline as otherwise the Home office may reject the application unless exceptional reasons for the delay are provided.

Grounds of Administrative Review

One has to carefully consider and draft the grounds on which he or she may rely in their administrative review applications. This is an opportunity for the applicant to address all the concerns and issues raised in the notice of decision and the reasons of refusal of the immigration application. It would also be useful to refer to the information or the documents already provided with the said application and highlighting any relevant sections and provide a detailed explanation addressing the issues.

Drafting grounds of administrative review is a specialized area of immigration work and should therefore be left for the experts to handle it.

Outcome of administrative review

Once Administrative review is lodged, a different caseworker considers the grounds of administrative review and may make one of the following decisions:

    1. He may overturn the original decision and issue visa to the applicant.
    2. He may maintain the original decision along with all the reasons of refusal; or
    3. He may maintain the original decision of refusal but may decide to withdraw one or more reasons of refusal; or
    4. He may maintain the decision but with different or additional reasons to those specified in the decision under review.

Effect of Administration Review

The applicant’s leave to remain remains in place by virtue of paragraph 3C of the Immigration Act 1971, till the decision of the administrative review provided he had valid leave to remain prior to making the relevant immigration application. He will not be eligible to make a fresh application whilst the decision on the Administrative Review is pending.

Further Options

If the decision maker maintains the decision of refusal, the applicant may make a fresh application within 14 days from the date of refusal of administrative review or may also lodge Judicial Review proceedings if it is considered that both the decision maker of the original application and of the Administrative review application made an error in the consideration of the said applications.

Again, it is extremely important to seek professional help in making decision whether to make a fresh visa application or to proceed in the Judicial review or to choose both, depending on the individual’s circumstances.

JUDICIAL REVIEW TO CHALLENGE REFUSAL OF ILR OF TIER 1 EXCEPTIONAL TALENT MIGRANT

A Judicial Review is a check and review procedure conducted by the Upper Tribunal (Immigration & Asylum Chambers) or the High court on the decisions made by the executive body (i.e. Home Office).

If the home office decides to maintain the decision of refusal as a result of administrative review application, the applicant may lodge judicial review proceedings against the decision. There is a 90 days’ time limit on bringing the Judicial Review proceedings against the refusal of Tier 1 Exceptional Talent ILR application.

Pre-Action Protocol

Generally, the first step being a Pre-Action protocol letter is issued to the Home Office before initiating Judicial Review JR process in the Upper Tribunal (Immigration & Asylum Chambers).

It is really important to assess the details of the matter, analyze the merits and proceed most effectively in order to obtain relief. This is an opportunity given by the claimant to the litigation team of the Home office to review the matter in the light of the representations or submissions made in the Pre-action protocol letter. We generally give 14 days of notice to the Home office to respond to our Pre-action Protocol letter.

The most important thing is to identify the issues raised by the Home office and to see whether a fair decision has been made in the light of the information or documents available. Our job is to address those issues effectively and make a good case for the litigation team to review the decision. We have been quite successful in persuading the litigation team of the Home Office in reconsidering the decision and a number of our clients did not need to go further in the Judicial Review process and were given relief just on the basis of the pre-action protocol letter.

Permission Application (on papers) – Grounds of Judicial Review

If the Home office Litigation Team refuses to overturn the decision we shall then lodge JR review permission application in the Upper Tribunal.

Time to Lodge JR Application

The deadline to lodge Permission application of Judicial Review is 3 months from the date of the refusal of Tier 1 Exceptional Talent Visa Application.

Grounds of Judicial Review

One has to carefully consider and draft the grounds on which he or she may rely in their permission application for Judicial review to the Upper Tribunal. The main point here is to identify an error of law in the notice of refusal of Tier 1 Exceptional Talent Visa application. It needs to be assessed whether the visa officer (ECO) has made a fair decision in the light of the relevant law, rules or regulations with reference to the decisions of the superior courts. It requires a wealth of expertise and experience to draft good grounds in such matters enhancing the chances of success.

Once Judicial Review is lodged, the respondent i.e. the Secretary of State for Home Department has 6 weeks to file “Acknowledgment of Service” along with the grounds of defense. The Upper Tribunal taking account of arguments and documents presented by both parties, makes a decision.

The Upper Tribunal may take one of the following actions:

  • Grant permission for Judicial Review on all grounds
  • Grant permission for Judicial Review on one or more grounds
  • Refuse permission for Judicial Review

Whatever stage we come on board, we make sure to work in the best interests of our clients and have successfully represented many of our clients in such matters.

Why to instruct Chauhan Solicitors to Apply for Tier 1 Exceptional Talent Visa

We are a city law firm, specializing in UK Immigration matters. We are located in Central London, therefore conveniently accessible to Londoners and clients in other parts of the UK. Moreover, since all the UK immigration Applications can be submitted online, it has become easier for us to take instructions from anywhere in the world. We have been advising our clients successfully to apply for Tier 1 Exceptional Talent Visa

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