Tier 2 General application refused

[kavigummadi]

Hi..
we have applied for tier 2(gen)extension on june 24th,premium service,croydon.they gave us a letter mentioned ''further verification required''.afer 1 month i.e.,24th july they had refused and 28th july we received the refusal letter.
the reason they mentioned..


You could not be awarded points for Sponsorship as his Certificate of Sponsorship indicated that his sponsor had not performed an appropriate resident labour market test as defined in Appendix A and in the Codes of Practice (which are also specified under Appendix J of the Immigration Rules).
your last granted leave to work as a PC Network Controller/Administrator for Indo-Fuji Europe under standard occupational classification (SOC) 3131 but the SOC code (2139) on his Certificate of Sponsorship indicated that his prospective employment would be in a different job. Therefore, he would not continue to do the same job he was doing, or intending to do, when last granted leave.

To be awarded points for a job that passes the Resident Labour Market Test under Sponsorship, your Sponsor should indicate on his Certificate of Sponsorship that they have met the requirements of the Resident Labour Market Test as defined under Appendix A and in the Codes of Practice, (which are also specified under Appendix J of the Immigration Rules), in respect of the job he wished to undertake.

Appendix A and the Codes of Practice state that the job you wished to under take should have been advertised in the Jobcentre Plus or Jobcentre online and that the Certificate of Sponsorship must contain the Jobcentre Plus, Jobcentre online or Universal Jobmatch vacancy reference number.
your Certificate of Sponsorship did not indicate that his sponsor advertised the job he wished to undertake through Jobcentre Plus/Jobcentre Online/Universal Jobmatch, therefore, his application for LTR was refused.
you may apply for an administrative review within 14 days of receiving the decision and paying the appropriate fee.

i am working with same employer,and previous income was 27,000.And now my sponsor changed to 30,000.HO has changed the SOC codes.and my previous code 3131 does not exist.new code 2139 is the most relevant code for my job role.my sponsor doesn't advertise this RLMT.
my sponsor already advertised my role in RLMT on 31 july.
Please let me know my options for this.
Thank you so much in advance.

[geriatrix]

3131 is NQF4
2139 is NQF6
I stand to be corrected but how can a NQF4 level job be same as NQF6 level job? Would this not come under "change of employment" application?

HO has changed the SOC codes.and my previous code 3131 does not exist

The new SOC 2010 code for 3131 remains 3131. See page 104 of Appendix J or page 25 of PBS codes of practice: skilled workers (from 6 April 2015)
The SOC 2000 code for 2139 is 2131. But you were not under 2131 before.

IMHO ...

[kavigummadi]

Thank you for the reply.and what are my options now?ican i re apply?

[geriatrix]

When does your current leave due to expire?

[kavigummadi]

expired on 24 th june.

[geriatrix]

1.When did you receive the refusal decision?
2. Does it mention anything about administrative review / appeal?
3. Now that you know SOC code 3131 exists in the new list, based on the duties that you do in your job what is the most suitable SOC code? 3131 or 2139 or something else?
4. If it is not 3131 anymore, is RLMT being conducted and when does the 28 days period expire?
5. How soon will the employer be able to issue you a CoS, if SOC code remains 3131?
6. How soon will the employer be able to issue you a CoS, if SOC code is not 3131 but something new fr which RLMT is being conducted?

[kavigummadi]

1.When did you receive the refusal decision?

Received on 28th july.
2. Does it mention anything about administrative review / appeal?

Administrative review in 14 days.
3. Now that you know SOC code 3131 exists in the new list, based on the duties that you do in your job what is the most suitable SOC code? 3131 or 2139 or something else?
My Previous code was 3131, and my current job is most suitable to 2139. So can I still apply under code 3131 with 30k(as previous income was 27k) and with out RLMT, as my VISA expired on 24th June 2015?

4. If it is not 3131 anymore, is RLMT being conducted and when does the 28 days period expire?
Now they started RLMT and 27th August will be 28th day.

5. How soon will the employer be able to issue you a CoS, if SOC code remains 3131?
If code remains 3131 they will be able to issue next working day.

6. How soon will the employer be able to issue you a CoS, if SOC code is not 3131 but something new for which RLMT is being conducted?
They will be able to issue Cos on 28th august. As RLMT will finish on 28th August.

Note:- If I go under code 2139, which date do you suggest me to re-apply. As RMLT will finish on 28th August and AR 14day's expires on 10th August ?

[geriatrix]

It is between you and your employer to decide which SOC code to use for the job you do. No one on the forum can advise you on that.

That said,

Given that you have been told that have the right to apply for administrative review, through a refusal letter received 28-July, your section 3C leave will end on 11-Aug-2015. In other words you will become an oversatyer on/after 12-Aug-15 in case you do not make a leave to remain application before that.
From 12-Aug., you have 28 days to make a new leave to remain application (245HD(p)) so that the period of overstay can be ignored when HO considers an out-of-time application.
By my rough calculations, that would be 08-Sep-2015.
If I were you, I will be a little cautious given the precarious situation, and assume that last (deadline) date to be 05-Sep instead of 08-Sep! But that is just me!

Okay,
If you choose to use 3131, then you know you are exempted from RLMT since you will be applying for extension under the same SOC code. This enables you to apply sooner (e.g. - before you become an overstayer on 12-Aug) since your employer can issue you a CoS immediately.

If you choose any code other than 3131, then RLMT is involved! Given that RLMT is underway for 2139 and you know for sure that your employer will be able to issue you a CoS in time for you to apply for leave to remain before 05/08-Sep, then you may apply accordingly.

Your choice.

In the meantime, wait for more suggestions and advice - just in case I have been inaccurate in my suggestions and summation somewhere!

[kavigummadi]

Thank you so much for your reply.
As you said,all of your summations/dates are correct.
I spoke to my sponsor,he said SOC 2139 is most suitable for the role.so,we decided to choose the SOC 2139.
now my questions are...

1.If I make my application on 10th August under SOC 2139, and submit my COS on 29th August(RLMT finish on 28th August) before I complete my biometrics(as we can give biometrics in 15working days). Is UKBA consider my application ? and what about the success ratio ?

2.If I make my application under SOC 2139 on 29th August after RLMT, my stay comes under over stay ? Is UKBA consider my application ? and what about the success ration ?

Note:- from the above 2 scenarios which one do you prefer ?

Thank you.

[geriatrix]

1. No comments.
2. In my previous response, I have provided you the immigration rule (and link) that talks about the 28 days that one gets to apply for leave to remain even after becoming an overstayer. When something is allowed under immigration rules, the chances of success is 100%, provided you meet the immigration rules.

[kavigummadi]

Thank you so much sushdmehta,
your suggestions are really helpful.thanks much.we decided to apply after RLMT.

[geriatrix]

Just make sure that the application is accurate in "every" respect. For any application submitted after 11-Aug., there will no administrative review / appeal right, if refused.

All the best.

[kavigummadi]

Hi,

Good afternoon, thank you for your valuable advices. I have one more doubt regarding my AR.

If I go for AR on 11th August, to legalise my stay in UK still can I re-apply after RLMT on 29th August irrespective of my AR result ?

Thank you.

[geriatrix]

If you apply for AR within the 14 days period, then your current leave will remain extant because of section 3C. But while the AR is under process you will not be able to make a new application because when covered by section 3C one is not allowed to make a new application.

To make a new application, you will either have to withdraw the AR or wait for the decision on AR to be reached (and communicated to you).

[kavigummadi]

Hi,

Good morning, if I get negative result in my AR(which is obvious as I don't have proper RMLT) still am I able to re-apply on 29th August with proper RMLT ?

Thank you.

[FaeLLe]

Hi,

Good morning, if I get negative result in my AR(which is obvious as I don't have proper RMLT) still am I able to re-apply on 29th August with proper RMLT ?

Thank you.

I believe you would be considered as having no valid leave to remain once AR fails.
However, you then have a 28 day permitted period to be out of a visa while not breaking your residency period so just make sure you apply before this period.

[kavigummadi]

Hi.good morning,
Sorry for too many questions.please help me out in this situation to proceed further.
we received a refusal letter on 28th july,then we applied for AR on 10th august.Today (21st august)we received a letter from HO.They are saying we applied for AR after the time line.(14 calendar days).but we have applied within the time limit.How HO will calculate the days?from the day we received the letter or from next day??even though,we have not crossed the time limit.
please explain me how they calculated the days ?and if they are wrong(Hopefully they are),what are my options to do next??

They asked to leave the country within 7 days or inform them in 14 days to remain in the country.But they have not mentioned anything about fresh application.Can I still make a fresh application??my documents will be ready by 29th august.They sent all our originals except passports.
Your advice would be really helpful.Thank you so much.

[geriatrix]

Why did you leave AR request to the last moment?

What is the time limit for applying for administrative review?
For in country decisions, 14 calendar days from the date the applicant receives the notice or biometric residence permit (BRP) (7 calendar days if they are detained.)

Paragraph 34R: time limit
An in country request for administrative review of an eligible in country or border decision must be made within 14 calendar days after the date on which the person received the decision, for migrants who are not detained, or for those in immigration detention, 7 calendar days after the date on which they received the decision.

How was the refusal letter delivered? Normal post or recorded? Do you have the envelope in which the refusal letter came? What is the date on the post mark? Do you have proof of posting the administrative review form?

[kavigummadi]

hi,
*How was the refusal letter delivered?
Delivered through royal mail signed for.post man came on 27th july,but we were not there to sign and receive the letter.28th morning my husband collected from collection point.so we calculated from 28th july.
*Do you have the envelope in which the refusal letter came?
yes i still have the letter with me.
*What is the date on the post mark?
27th july,but we signed and received on 28th july.we have one proof for this.(we requested local MP for speed process,as my father in law passed away 5 days before we go to premium service.)now MP also received a mail from Home office.Home office clearly mentioned (28th july)the date when we signed and received. And we received the same mail from MP.
Do you have proof of posting the administrative review form?
we applied online on 10th august.and I have the AR form print out.

we applied last day of AR.Because we don't have clear idea whether to go for AR or fresh application.Now our sponsor said,he will be able to issue the new COS with RLMT on 28th august which is next friday.
Is it ok to wait 1 week and make fresh application with proper documents???
Thank you so much.

[manci]

They asked to leave the country within 7 days or inform them in 14 days to remain in the country.

could you please quote the exact wording.

What is the date on the post mark?
27th july,but we signed and received on 28th july.

the postmark on the UKVI letter couldn't have been 27 July if delivery was attempted on 27 July. What was the date of the letter and what was the postmark on the envelope?

IMHO
1. The reason for rejecting the request for AR was probably that UKVI thought that you received their letter on 27 July.

from the Immigration Rules:

34R. (1) The application must be made:
(a) where the applicant is in the UK and not detained, no more than 14 calendar days after receipt by the applicant of the notice of the eligible decision;

(4) For the purposes of this paragraph, the notice of the eligible decision, notice of the outcome of the previous administrative review or biometric immigration document is deemed to have been received, unless the contrary is shown:
(a) where it is sent by post to an address in the UK, on the second working day after the day on which it was posted;

[manci]

sorry, my previous reply wasn't finished before I accidentally posted it. Ignore the previous post, this is my reply:

They asked to leave the country within 7 days or inform them in 14 days to remain in the country.

could you please quote the exact wording.

What is the date on the post mark?
27th july,but we signed and received on 28th july.

the postmark on the UKVI letter couldn't have been 27 July if delivery was attempted on 27 July. What was the date of the letter and what was the postmark on the envelope?

The reason for rejecting the request for AR was probably that UKVI thought that you received the letter on 27 July.

from the Immigration Rules:

34R. (1) (a) The application must be made:
where the applicant is in the UK and not detained, no more than 14 calendar days after receipt by the applicant of the notice of the eligible decision;

(4) For the purposes of this paragraph, the notice of the eligible decision, notice of the outcome of the previous administrative review or biometric immigration document is deemed to have been received, unless the contrary is shown:
(a) where it is sent by post to an address in the UK, on the second working day after the day on which it was posted;

Note that 27 July was a Monday. As you have evidence that you only received the letter on 28 July (see the underlined text above) I think you can challenge the refusal to consider the request for AR.

If you don't challenge the refusal UKVI will consider that your request for AR was invalid (as indeed they do so now) which means that it wasn't made at all. In this case the 28 day period of overstay which doesn't have immigration consequences will be counted from 28 July and you would have to make any fresh application during this period.

[kavigummadi]

Hi
Here is the exact wording mentioned in the letter.
"If you have any reason to stay in the UK that you have not already told us about,you must tell us now or at the latest within 14 days of receiving this letter using the application forms on our website:
gov.uk/ukvi.You should seek legal advice as soon as possible if you are intending to stay in the UK.

If you wish to seek legal advice you must do so now.You will not be removed for the first seven calendar days after you receive this notice*.Following the end of this seven day period,and for up to three months from the date of this notice,you may be removed without further notice.
*If you received this notice by post,you are counted as receiving it two working days it was posted".


Date of the letter was 24th July (Friday).There is no post mark on the envelope.(sorry I was wrong in the previous post.i have seen the wrong date).We have Royal Mail delivery note which is on 28th for proof.

1)As you said I would like challenge the refusal to consider the AR. What exactly I must do( I mean the procedure)?
2)My documents will be ready only by 28th august.I can submit my application on 28th.Can I wait until Friday to make fresh application?
Thank You so much.

[geriatrix]

Okay, AIUI (and I stand to be corrected), from Home Office point of view the receipt date was 27th-July. That no one was there to receive it may not be viewed by them as their fault.

Anyways, be it the 27th or the 28th, you applied for AR on the 14th or the 13th day respectively. So either way it should not be considered an out-of-time request for AR.

Respond to them with the above reasoning, and a copy of the proof of receipt on 28th or attempted delivery on 27th.
Please respond ASAP!
If they have included a form / document that you must use to respond, use that.
If they given you a link to some webpage to fill in to respond, use that.
Else, write a letter and post to it the name and address of the sender of this letter you have received.

If you don't challenge the refusal UKVI will consider that your request for AR was invalid (as indeed they do so now) which means that it wasn't made at all. In this case the 28 day period of overstay which doesn't have immigration consequences will be counted from 28 July and you would have to make any fresh application during this period.

Section 3C leave will be deemed to have ended only after 14 calendar days of receipt of refusal letter givig the right or administrative review.

If an applicant does not make a request for administrative review following an eligible refusal decision, their 3C leave ends on the last day on which they could have made an in-time application.

So even if AR is not accepted as in-time by Home Office, section 3C leave would be deemed to have ended on 10th/11th Aug (depending on where receipt is 27th/28th Jul). Overstayer from the next day (11th/12th Aug).

[manci]

]So even if AR is not accepted as in-time by Home Office, section 3C leave would be deemed to have ended on 10th/11th Aug (depending on where receipt is 27th/28th Jul). Overstayer from the next day (11th/12th Aug).

yes, that is correct, the 28 days are not counted from 27/28 July, as I wrote in my previous post, but from 11/12 August.

BTW- if the letter was dated Friday 24 July then the "deemed" delivery date was Tuesday 28 July, not Monday 27 July. The HO don't count Saturday as a working day, see their reply to a FOI request:
https://www.whatdotheyknow.com/request/working_days

[manci]

the envelope in which the letter came should have the signed-for ref. no of the item. You can also obtain confirmation of the delivery date from:
https://www.royalmail.com/track-your-item