Tier 2 Visa Appeal

[pricesoft]

I was recently refused a tier 2 visa. I was switching from a tier 1 post-study work visa having worked for the same employer for 2 years now. The grounds of refusal reads;

"You have claimed 30 points for sponsorship under Appendix A of the Immigration Rules but the salary included on the Certificate of Sponsorship is not at or above the appropriate rate for the job, as published in the UK Border Agency guidance. It has therefore been decided that you have not met the requirements to be awarded points for sponsorship under Appendix A of the immigration rules"

My sponsor selected what he thought was the most appropriate job code for my job title when filling the form for my CoS application. It turns out that the job description for the job code my sponsor selected is different from my job description and is a senior position but unfortunately a decision was made by HO based on the job code my sponsor selected which is a senior position. The minimum salary requirement for the job code my employer selected is £31200 and I earn £26400. I should point out that my sponsor wasn't aware of the minimum salary requirements before he applied for the CoS otherwise he would have complimented my job arrangements to meet any necessary requirements.

I have been given the right to appeal and my sponsors have very kindly supported me by employing the services of a very competent legal firm to represent me in the appeal process.

I would kindly like to know what my chances of successfully appealing the decision given the grounds of refusal?

Your replies are much appreciated in advance.

[ashleyransoo]

hi,

i'm not surprised you didn't get an answer so far.

I'm in a similar situation like you.

rgds.

[pricesoft]

@ashleyransoo I'm a little surprised too that I haven't got any response. but oh well, i guess nobody has been in a similar situation.

I received my notice of appeal a few weeks ago, are you looking to appeal the decision too?

[ashleyransoo]

hi Pricesoft,

I'm almost in a similar situation. The only difference is I wasn't given the right of appeal because i still have a few days left before my visa expires. But they said I could make a fresh application.

My employer is also willing to meet the code of practice requirements by giving me the required salary this time. It is very unfair that employers are not given enough information/help to use the sponsorship management system.

Now they are not giving COS number to new sponsors, so it doesn't leave me with the option of applying again. Meantime my visa is also expiring in a few days.

I'm now gonna appeal on the fact that I'm being refused a COS number. I'm also continuing same employment so should be considered as an existing employer. They are giving COS number only to existing tier 2 at the moment. Also gonna make the case strong, that my employer needs me and I've already started working on important projects for which they would not find someone else and train so easily.

Let me know on which grounds you are appealing, if your employer will be changing job title/salary or give explanation about the position.

you can drop me a seperate email ashleyransoo@gmail.com.

good luck!

[safatafa]

hi guys

i guess you need to go through a solicitor and ask for advice. if the employer is ready to issue you a new cos with the right salary you should be fine.
if you dont have time on visa left either you go back and apply from home country or get a letter from your sponsor and include in your appeal. Its a honest mistake god willing you should get the visa.
regards
sam

[drauqureshi]

A Very Helpful forum I must say...

I was refused a Visa due to similar reasons HoweVer in my Case, tHe Home offiCe Had tHe old poliCy witH old rates for doCtors. My Hospital emailed tHem telling tHem tHat my salary is aCCording to tHe new Pay PoliCy and tHat tHe HO needs to update tHeir DoCuments.

I am planning to appeal against it next week.

Your guidanCe as to wHetHer I am in tHe rigHt direCtion or not would be muCH appreaCiated

PS: sorry for tHe Capital Letters. tHe keys on my laptop are going Crazy.

[pricesoft]

Hello Guys,

I am currently awaiting a decision for permission to appeal to the upper-tier tribunal following my initial tier 2 visa refusal and a subsequent failed appeal to the first-tier refusal. my employer has decided to continue applying for an additional CoS but this time around we are hoping to conduct a RLMT before we apply. I'm still working in the same job position and I understand this is perfectly legal under section 3c.

Just wondered what the requirements are for applying for an additional CoS. I understand that applying for an additional COS will require the employer to carry out a RLMT for any job to be filled by a non-eu national except in tier 2 extension cases. Is this correct? Can anybody also please point me to a material that specifies what other requirements needs to be satisfied when applying for a CoS?

Thanks

[geriatrix]

Hello Guys,

I had applied to the Upper tribunal for permission to appeal the first-tier tribunal's decision to dismiss my appeal. I received the letter of decision this evening and it wasn't good. To be honest, I had always feared the worst. Not because my arguments weren't strong, but because it confirms a developing pattern in how decisions are made.

Quite curiously, the letter of decision doesn't include a guide on what to do next so I thought I'd come on this forum to get some advise. In the time I was awaiting the Upper tier decision, my legal representative had sent a letter to the UKBA last week requesting that they accepted a new tier 2 application. My sponsor has got one CoS allocation but we have decided not to use the one allocation yet until we got some sort of assurance from the UKBA that they would be happy to entertain a new tier 2 application.

They have yet to reply to our letter, but I'd like to know what I need to do to avoid becoming an overstayer in light of the new Upper tribunal decision.

I really appreciate your responses.

My two cents:
1. You are now an overstayer (believe the clock started from the day after you received the letter refusing permission to appeal the 1st tier decision) and staying in the UK for more than 28 days as an overstayer may impact any entry clearance application(s) in the future.
2. Whether UKBA accepts an out-of-time application for consideration is at their discretion. If UKBA accepts the application, assesses it and grants you leave, you'll be fine .... but if it is refused for any reason then the length of stay in the UK as an overstayer will only increase.
3. Even if your out-of-time application is accepted, assessed and approved, do note that time spent in the UK as an overstayer (even a single day) has reset your ILR clock (if settlement is / was an aim, that is).

Does your employer have a valid CoS this time around to assign to you - in case you wish to submit an out-of-time application?

[pricesoft]

Thank you very much for your contribution sushdmehta. I also wasn't initially sure about my status since the receipt of the letter, so thanks for clarifying that as well.

My employer does have a CoS which they requested especially for me. My legal representative wrote to the UKBA last week asking whether they'd be happy to accept a new Tier 2 application with the new CoS as we didn't want to take any gamble with the 1 CoS allocation we have. We haven't received any replies from the UKBA yet. But I guess that plan is now out of the window and I'll now have to take the gamble of applying for a new Tier 2 visa with the CoS ASAP and hope that discretion is exercised favourably (I pray to God everyday that this is the case). Would you advise against doing this?

Of course, I have only just received the letter of decision yesterday evening so I will only be able to discuss this with my employer on Monday. I'm sure that will be discussing the possibility of seeking a judicial review, but I understand this can be a very lengthy and costly process. If anything, at least start the pre-action process to buy us more time.

In any case, my priority is to make sure I don't do anything stupid such that it will jeopardise my chances of applying for a EC in the near future, should I need to.

[pricesoft]

Since my last post above, I have been doing some brainstorming with regards how to go forward from here, working out timelines and all. The truth is, all viable options are on the table for me (including returning home and applying for an EC).

However, the one problem I'm having is understanding the second point sushdmehta raised in his/her post. Or perhaps I shouldn't call it a problem but a point that needed clarifying.

You suggested that if I submit an out-of-time application in the allowable time period of 28 days and i'm refused for any reason then my time in the UK as an overstayer will only increase. Does this mean that even the time period during which I have my out-of-time application with the UKBA will count towards the 28 days?

If this is the case then timelines will be very critical, because even if I decide to submit a new out-of-time application as early as tomorrow (which I may be in a position to do), there are no guarantees that I will have my passport back in 28 days. It may well be shorter, because I already had my biometrics done when I submitted the initial application. But it is still no guarantee. Because, for me, it is important that I still have the opportunity to return home and apply for an EC without the risk of being refused because I overstayed.

I'd appreciate it if sushdmehta or any other member clarified this for me. Thanks in advance.

[geriatrix]

Submitting an out-of-time application doesn't make your stay in the UK legal. It is only if your receive an approval that you'll cease to be an overstayer on/from the "issue date" of leave to remain. If refused, you continue to remain an overstayer (since May 14th).

Unless you can apply in-person and a caseworker can decide on your out-of-time application on that very day (highly unlikely, IMHO), hoping that UKBA will decide on your out-of-time application and also return your passport within 28 days is like hoping for a "miracle".

[pricesoft]

Thanks for the feedback sushdmehta. You have been very helpful.

I'll explore the possibility of applying in person latest by tomorrow morning and will decide whether or not to apply by post or in person. In any case, I aim to have acted upon my decision by the end of play tomorrow with the CoS we have. If I decide to apply by post, like sushdmehta suggested, I would indeed have to hope for a miracle. In fact, it looks like I will need more than 2, 3 or even more miracles to happen in the next 28 days. It is not impossible. If I don't have my passport returned in 28 days, then I will apply for an emergency passport and leave the country before 28 days elapses.

In the meantime (whilst my application is still being decided), I will be exploring other avenues, such as the possibly of seeking a judicial review, if only to buy me more time.

Frantic times ahead, very frantic times.

[pricesoft]

Could someone kindly point me to a material showing when "restricted" cos applications will be considered/assessed. And also the application deadline date for each month.

[geriatrix]

1. Allocation period is 6th day (of a given month) - 5th day (of the next month).
2. Application deadline for a month is the 5th day of the (next) month.
3. Decision taken on 11th day (if 11th day is a holiday, then on the next working day).

[pricesoft]

Thanks Sushdmehta.

[pricesoft]

I have been in discussions with my sponsor regarding a new application. They are keen to know whether or not I will be requiring a "restricted" or "unrestricted" CoS.

I know that any application I make at the moment will be considered out-of-time, but is it ok to conclude that I will be requiring a "restricted" CoS and not an "unrestricted" CoS for my application.

This will obviously be a grey area since the differenct CoS categories have only been recently introduced, but I would like to know if there are any other interpretations.

Your views welcomed, and thanks in advance.

[arsenal49]

i thought any valid in-country app requires 'unrestricted' COS and any out-of-country app requires 'restricted' COS!

if you are making app from inside uk, you will need 'unrestricted/free' COS.

but, to get a visa/passport back within 28 days is very unlikely. and the consequence of overstaying for even a single day, for whatever reason, will trigger a one-year ban.

are you sure you want to go down this path!...

you will probably need to request your passport back on 25th day to allow for postal delay etc (even when you pay for special delivery)....

i think its safer to apply from home... cuz you will only get sleepless nights for 25 days here and even then, you will not have favourable outcome.

whatever i have said so far is based on UKBA guidance etc.

the other side of picture is... if you can 'lobby' ukba via local MP, and a STERN letter from your employer, you might get your case decided upon very, very quickly. chances are low... but hey.. worth a try...what have you got to lose, right?

if MP writes a letter to UKBA, or better call them! , trust me, im speaking from experience, your case gets jumped to the top of pile on caseworker's desk!

regards

[pricesoft]

Thanks for your contribution.

Believe me, I will be the first person to admit that I can't even afford that risk. My sponsor can't as well. The reason why I am taking that course of action is because I plan to do get an emergency travel certifcate from my country's high commission here in the UK which will enable me leave the country before the 28 day period elapses.

At the risk of sounding very ignorant here, is this permitted? Am i allowed to do this? I will be arranging with my employer to send me my passport as soon as it arrives from the UKBA.

In the meantime, I will be lobbying my MP. The problem I have is that I leave in Newham which I believe is home to the highest number of immigrants in the UK. You can be sure that there will be lots of people lobbying too. But it DEFINITELY doesn't harm trying.

By the way, as I already have my biometric data with the UKBA from my initial application, could this help speed up my application in anyway?

Thanks again for your contribution. I really can't thank you enough.

[arsenal49]

once you have left uk via emergency travel doc... howdo you get your passport back??

is it legal to send passport via post, internationally? i dont kno personally...

i think you will need to do biometrics again... but that will not delay/or quicken the process as it is separate independent thing....

[pricesoft]

You are probably right about sending passports cross-borders, will find out more. Thanks for your contribution.

[pricesoft]

Although not quite as planned, I submitted an out-of-time Tier 2 visa application yesterday. I had hoped to have had it sent off by last Tuesday as suggested in a previous post but I was advised that I shouldn't rush the application through and take my time in ensuring that I had it done properly. I can only pray and hope that it turns out well for me. I will also be involving my MP and will see where that gets me.

There are some concerns regarding how I had claimed points for sponsorship. But I can't help this because it was brought about by my leave expiring a few days ago.

Of course, I might have to return home in the end to apply for EC from my home country and I have planned for this. In this case, my sponsor will need to apply for a "restricted" certificate of sponsorship. We had carried out a resident labour market test on my job in January but unfortunately, my salary had increased since and plus we ignorantly forgot to include the closing date for the advert on the job (I understand this is a requirement in satisfying RLMT). So, we will be doing the RLMT again. The only issue I have here is timing (nothing major), as based on my calculations, we may have to wait another 2 - 3 weeks after the 28th day of advertising for the next available issue date for "restricted" CoS.

Once more thing, I get the general feeling on this board that out-of-country applications are scruitinized more than in-country. How is this the case in a points based system? I'm assuming that if you have met all of the points, then surely you should be entitled to the visa. Or no? Could there be other grounds for refusal? I have already had a look at Paragraph 320 and can't see myself falling for refusal under any of the rules.

[pricesoft]

Just a quick update.

Since submitting an out-of-time application on the 19th of May, I have received my acknowledgement letter and my invitation for biometrics. The invitation for my biometrics came yesterday in the post and I had it done this morning.

It really is a race against time. Fingers crossed. With prayers, I believe in miracles.

[ff88]

hey mate. I am in a similar sort of situation. My employer is about to carry out a RMLT. What job title does he need to give ? Should it be the same as specified in SOC Codes ? Or we job title must not match the exact wording given in SOC codes of practice under the column (Job Titles).

Fingers crossed. I am well talented, may be I get short listed and offered a job if no suitable worker is found, how ever I still need some guidance regarding the Job Title we need to give.

[pricesoft]

From experience I'd say that you should stick to the job title as specified in the SOC. But I understand this is mostly impractical. Keep in mind that by using a different job title from the ones specified in the SOC, you are effectively leaving it to the UKBA to decide which job designation in the SOC best fits whatever you have provided. This was where my initial Tier 2 application fell foul.

If you choose to use a different job title, a good idea might be to put the job title in the SOC that closely matches your job. For example if your job title is Web Administrator. You could do something like "Web Administator (Progammer)".

Whatever you do, make sure there is a sense of consistency.

[pricesoft]

So after almost a year long battle, I got my passport stamped with the visa in the post this morning. My biometrics is supposed to be arriving within the next 7 days.

Thanks to all those who provided me with the support in making gutsy decisions when I needed to make them and in providing the advise when needed.