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Aussie Tier 1 refusals

Aussie Tier 1 refusals

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.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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