Appeal Refused (Tier 1 General from PSW)

[generaltier1]

Hi All,

I applied to switch my visa from PSW to Tier 1 General on 19 October 2010. 10 days after submission of my case the home office changed its policy and did not award points Post Graduate Diplomas.

Since my case was in process they did not take into account the date of my application and refused my case based on the rules which were in placed at the time of deciding my application as I did not score points for my Post Grad Diploma and English Language anymore under the new rule.

I made an appeal to the First Tribunal based on the grounds that PBS was giving points for my qualification at the time of application and also I have a bachelors degree from back home which is equivalent to UK Bachelors degree..I also submitted a letter of comparison from UK Naric and IELTS Test Result with band 7.5.

The judge accepted my degree from backhome but didnot decide in my favor as the IELTS test was taken after my application was refused. He remarked it as a "slight technical failure".

I know for a fact that many of such cases (similar to mine) have been approved but I guess it is either my bad luck or my solicitor did not present my case rightly.

I applied for a right to re-appeal but the permission was not granted. I have now applied for a right to re-appeal at the Upper Tribunal but chances of getting it approved are very low as per many solicitors whom I have consulted so far.

I want to know if anyone on the forum has a similar case or come across someone with similarities?? Also, if anyone can guide me on what should be my next course of action?

Highly appreciate for all ur time and valuable advice...

Regds,

Depressed Immigrant

[geriatrix]

If permission to appeal in the Upper Tribunal is denied, then JR may be the only option available.

If the "qualification from back home" did not award you points for English language at the time of application, then it appears that the decision to refuse the appeal for that reason is not in error. I don't think your IELTS test score can be accepted as evidence - because the test was taken after your application had already been decided (i.e. - you did not meet the English language requirement on the date of the decision).

[geriatrix]

Regarding the question whether your UK qualification should have been taken into account because it awarded you points for either / both "qualification" and "English language", IMHO, requirements on the "date of application" must apply .. and the judge should have taken that into consideration.

Consider contacting admanator83 and /or khanjaan through PM (do note that khanjaan had been posting on the forum claiming to be a Tier 1 migrant, Tier 2 migrant and also a Tier 4 migrant .. so you may want to check the accuracy of his claims before taking advice).

[generaltier1]

My qualification from backhome was also taught in english, however, we never raised that in the court as my solicitor said that IELTS test result was more than enough....

I have now applied for a letter of English assessment from NARIC but not sure if thats of any use now

JR is a very expensive route as informed by my newly appointed barrister...what do u say?

[generaltier1]

yes....he totally ignored teh fact that there were post application changes which affected my application and only discussed about the backhome degree and Ielts...

The final para of the decision says:

"The respondent may wish to consider, in the light of the evidence of English ability slightly post-dating the application, whether it is appropriate to grant leave notwithstanding what appears to be a rather technical failure to meet the requirements of the rules. I am however satisfied that I am bound to find that the appellant was not entitled at the date of application to points under appendix B, with the consequence that her appeal must fail."

I had been in touch with both these gentlemen before my hearing at First Tier Tribunal... as far as i remember Admanator83 got his appeal approved without even submitting any english proficiency evidence ..

ALSO, the barrister suggested that i can make a discretionary application to Home office based on the decision's para quoted above...not sure which application he was referring to but he did mention that the HO fees for that application is £550

[geriatrix]

I had been in touch with both these gentlemen before my hearing at First Tier Tribunal... as far as i remember Admanator83 got his appeal approved without even submitting any english proficiency evidence ..

Do you have a reference number of admanator83's appeal? Perhaps you could refer to his appeal as a reason that your permission to appeal in Upper Tribunal be allowed (i.e.- given that appeals have been allowed in the past, refusal of your appeal is an error of law).

ALSO, the barrister suggested that i can make a discretionary application to Home office based on the decision's para quoted above...not sure which application he was referring to but he did mention that the HO fees for that application is £550

I believe he was referring to "discretionary leave to remain" .. leave granted by UKBA at their discretion based on the specifics and merits of any such application.

[generaltier1]

i hav already submitted my application for right of re-appeal at the Upper Tribunal...

as per the notice of decision: "you may apply to Upper Tribunal for permission to appeal on a point of law arising from the First-Tier Tribunal's decesion"

my barrister said that at this stage we can only ask for appeal rights based on the grounds we submitted initially and cannot introduce new evidences or grounds...hence adamnator's case or any other could not be referred to...i am also in touch with a fellow member Zahid who had a similar case and he won too..

m so depressed....dont see any way out

do u hav any clue on JR...how expensive it can be?

[geriatrix]

do u hav any clue on JR...how expensive it can be?

Found the following on the net:

The cost of bringing a judicial review claim is considerable: in the region of £10,000 to £20,000 for a straightforward case, higher for a more complex matter. If the claimant is unsuccessful, they are likely to be liable for the defendant’s costs as well as their own. They are therefore looking at a legal bill of upwards of £30,000 if they lose, and they must be prepared for this eventuality, bearing in mind the unpredictability of judicial review proceedings and costs orders.

An old document (2007) but guess it is good enough to give you an idea!

[generaltier1]

i guess i should strike out the idea of JR --- way too expensive!!!


[/quote]I believe he was referring to "discretionary leave to remain" .. leave granted by UKBA at their discretion based on the specifics and merits of any such application.[/quote]

any clue if discretionary leave to remain is any good?? a solicitor friend said its just another way of wasting money ...

i hope we get more view from people in similar situation on the forum.... m desperately looking for a way out

oh btw, any info on T5 International agreement?? if I get T5 International Agreement can i switch to any other category later on?

[geriatrix]

Having looked at your previous posts, it is clear that you couldn't have relied on your UK qualification(s) because you submitted your application after the changes were introduced (deletion of some qualifications from UKBA database). And therefore, you (rightfully) did not qualify for Tier 1 (General) on that basis.

AIUI, the two users referred to above applied before the changes were introduced, and therefore those appeals were allowed (as claimed). Your case isn't the same as theirs - so comparison was wrong.

I have my doubts that your permission to appeal in the Upper Tribunal will be granted as there is no error in (point of) law.


What is T5 international agreement?

[generaltier1]

I guess there some misunderstanding....

I applied my case on the 19th of October....the Home Office received it on the 20 Oct 2010 and deducted the fee from my account on the same date, well before the policy changed.

The changes were introduced on 1 November 2010 when they stopped recognising PGDs and PGCs.

Since I submitted my application before 1/11/2010 I should have been given the approval, however, the judge simply ignored this and accepted the decision of home office about the rule in place at the time my application was decided.

[geriatrix]

AFAIK, the changes were introduced on 16-Oct-10 (or at least UKBA started removing certain qualifications and institutes from that day on).

If your institution remained on the UKBA database until 19-Oct-10 (date of application), then you my be correct! But, as per this post, you weren't even aware of the changes on the date of your application and didn't know if your UK qualification was listed in the PBS calculator on that day.

[generaltier1]

well, i hav a letter from HO (in the name of a fellow member) which he got under freedom of information act and it says that changes were made from 1st november 2010...

[generaltier1]

whats AIUI?

[tier1help-london]

whats AIUI?

As I Understand It

Hope this helps