Correct Soc code - Urgent

[Ehiaghe86]

Hi all,

We need advise. My husbands Tier 2 extension visa was rejected because UKBA said that his company stated in his Cos a different Soc code and responsibilities from that of his first Cos. But is working in the same company when the first Cos was granted, waste treatment, though in a higher role as when he came into the company 3 years ago he came in as a Graduate Trainee. The first time he applied for a work permit visa from a PSW to Tier 2 (General), they rejected him stating that the Cos was wrong, then he re-applied because his visa was still valid and they denied him stating his salary did not meet up to the Soc code he used (which was a lie) but his lawyer appealed and said the company Soc code used was wrong (which was actually wrong) but during the appeal they submitted the a letter from his company stating the right Soc code. One year plus later he was granted the appeal (June 2013) but the visa was due to expire by February 2014, which he applied for an extension in January and they denied him the visa again stating that his Cos stated this was a Tier 2 extension application but the Soc code was totally different (His company didn't see the previous Soc code used the first time as they have revised all codes and used the closest they thought fitted his new advanced role though in the same company). Now he has appealed and hearing date is October. What we would like to know is, if we have a good chance if we withdraw or cancel the appeal and put in a fresh application? And when we do if to use the exact Soc code we submitted to the court during the last appeal which was granted or the revised Soc code used to replace the one stated in his last appeal document.

Would appreciate as many valid opinions as possible.
Thanks.

[manci]

It seems that neither your husband's sponsor nor you understand the system.

The job SOC code is determined by the sponsor, not the migrant, and the sponsor is responsible to the HO for what they choose. The HO may check if the SOC code is the correct one for the job and if it isn't the sponsor can be penalised.

An extension application can only be made if the job SOC code, which reflects the core duties of the employee, remains the same, otherwise a change of employment application has to be made which involves doing an RLMT (unless an exemption applies) before the CoS can be assigned.

[Ehiaghe86]

Thank you Manci. You are definitely right on saying my Husband's Sponsor is not too familiar with how the system works, if not he wont have been rejected an extension twice.

Needless to say we are still in a bit of a pickle with your response. Because in the response letter the home office sent us they did say that if in fact it was to be an extension it was to be the same Soc code and core duties but it was not and there was no proof that an RLMT was done if he actually changed roles.

To give a clearer explanation, the first time he was denied in 2012 the company admitted they assigned the wrong Soc code and wrote a letter to the tribunal stating as much which we included in our bundle during the appeal. On the day of the appeal the case was cancelled and the judge said they should reconsider his application, which the did and granted him in 2013. The Soc code that the company claimed was appropriate was Soc 1235 - Waste disposal and environmental services managers (Although that has now been changed to 1255 - Waste disposal and environmental services managers). I am not sure if the court then updated this after the appeal
The company said this was the appropriate Soc because my husband was and is working under water and waste treatment.

When they wanted to extend his visa, his HR called HO and asked them the right Soc and they said as long as he is in the same industry and company even if a higher role they should state in the Cos a Tier 2 extension for an existing employee who is not changing role. But when it was time to apply the HR didn't see Soc 1235 to apply with, so went ahead and put his new title which is Asset Integrator but used Soc 2462 - Quality Assurance and regulatory professionals, claiming that was the closest to his role that she saw on the list. Then proceeded to fill the summary of description section with the job description written in his file and not that written on the list.
My question is, I will like to know what's the best way out of this? Is it just letting them know during the appeal that it was an error from the company again and that it was the wrong Soc code as it was to be that his office sent to the court during the last appeal? or what other way can you advise to handle this.
Though when we appealed we stated that it was the wrong code from his company again but this was because they didn't find Soc 1235 which was in the 2010 Soc list but has been changed in the latest one. Is this a valid argument. Is what I am asking.

Thanks

[manci]

HR are responsible for determining the SOC code and the job description to go with it. Your husband should sort this out with them before deciding how to proceed.

[Ehiaghe86]

Yes we are aware of this, but they don not seem to know any better, hence my reason for looking for outside help. And at the end of the day its our lives that are on the line. Especially as it is a very big company and the politics even bigger. No one ever wants to admit to fault.
Would appreciate an honest suggestion. Is what I am saying.

Thanks.

[manci]

There is no way around speaking with HR and agreeing the SOC code and job description.

1.
If it is to be 1255:
a) they should assign a new CoS, he can then withdraw the appeal and re-apply but he must stop working after the appeal has been withdrawn, or
b) they should write a letter to the HO/Tribunal admitting their mistake. In this case the HO may reconsider or the appeal judge will decide, as in the case of his previous appeal, but there is no way of predicting the outcome

2.
If it is to be 2462:
they should do an RLMT and after it has been successfully completed proceed as in a) or b) above

If a new CoS will be assigned ask for a printout and check it before your husband applies for leave to remain. Mistakes can usually be corrected by means of sponsor notes.

Was your husbands initial leave granted under the rules before 14 June 2012?

As your husband's employer is a large company, and they don't seem to understand the sponsorship system, they would be well advised to appoint a professional representative (solicitor or OISC) to deal with immigration matters on their behalf, otherwise their sponsor licence may be in jeopardy.

[Ehiaghe86]

Thanks for your response so far Manci. I really appreciate the help.
Yes I believe it was granted under the rules before June 2012 because he applied for the initial Tier 2 visa January 2012 even though he only got it June 2013.

Thanks.

[Ehiaghe86]

I also wanted to ask, what about if while we are waiting on the appeal set for October another company wants to employ him, and are ready to sponsor him. What are his options for example, Can he withdraw the appeal, while the new company applies for him with the right Soc ? and if they do and for any reason there is an error with the Cos can he appeal again since its a different company? Or are there any other options that he can exercise to allow him accept this new offer.

Thanks.

[manci]

if another sponsor wants to employ your husband they should assign a CoS to him (probably will involve doing an RLMT) and once the CoS is assigned he should withdraw the appeal and apply for leave - in that order. If the new application is refused there will be no further right of appeal. He should not resign until and unless the new application is approved by the HO.

[Ehiaghe86]

Thanks manci you are truly a Guru on the subject. Would you happen to be or know a good solicitor or an OISC holder to consult/apply for us on the matter if need be.

Thanks

[Ehiaghe86]

I wish I discovered this site weigh earlier than I did. would have made a big difference, but it is well, better late than never. *sigh*

[Ehiaghe86]

Hi Manci or any other Guru's

I have two more questions.
First question, In a situation where UKBA grants the wrong visa after winning an appeal (i.e Was granted a Tier 2 General visa for a Graduate trainee role even though when I applied it was as a graduate trainee but during the appeal the role was corrected to team leader in the appeal bundle sent to court)The appeal is then granted but Graduate trainee is written on the document sent with the approval but the work permit card just reads, Tier 2 General. But this was not noticed until now when a second appeal is due for an extension visa that was refused. My question is what is the best way to bring this up to UKBA. 1.) To mention it in the appeal bundle or 2.) To not bother mentioning it at all as it was not noticed all this while by me.

Second question, Is it a fair argument to tell UKBA that you were promoted to a higher role in your company after you were done with being a Graduate Trainee without them carrying out a RLMT as this was a natural progression from your Graduate trainee role because a as graduate trainee different aspects of the business were covered and the aim of that is to fix you into the area that best suits your skills. So therefore your responsibilities maybe a bit different but still within the same industry and company.

Thank you. Would appreciate a response

[Ehiaghe86]

Hey guys long time, I just wanted to give an update on my Hubby's case being that Manci and this board were very helpful to us.
To God be the Glory our appeal was heard and the judge granted in our favour for the second time around....Woohoo We are more than happy after the long awaited appeal.

Although I also have a few questions. The judge though granted in our favour, asked UKBA to give him an extention in order to allow for his company to perform the Resident Labour Market Test on the role they put on his COS. But my question now is (1) How does his company perform RLMT on a role that he is currently working in ? (2) Does he have to stop work for that period while the RLMT is being conducted, even though UKBA would have given him an extended period to enable his company conduct it ? (3) Also how can his company go about the RLMT that would guarantee it going in his favour ? His company is a little clueless when it comes to these things and they don't seem to want to get an Immigration lawyer specifically for this alone, because they already have a solicitor but he is not familiar with the Immigration rules as such.

I will keep you guys updated.

Thanks again for all the help guys, you are doing a great job helping we in need!!