Tier 2 (switching from PSW) refused - what am i doing wrong?

[hashmil]

So I'm switching from Tier 1 PSW to tier 2 general. Had the whole sponsorship registration delay shinanigans. Been there, done that, got the shirt. Was hoping that everything was in place, as i double and triple checked everything down to the NQF requirements. But after all that trouble and pain got a refusal letter with the Appeal forms.

here's what the letter says for main reason for refusal:

"In line with Appendix A and with reference to Appendix J of the Immigration Rules we have, therefore, been unable to award points for Sponsorship. The reasons for the decision are detailed below.

Your Certificate of Sponsorship states that your prospective employment closely corresponds to occupation code 3411 Artists on the UK Border Agency's Codes of PRactice for Sponsors which are also specified under Appendix J of the immigration rules).

This occupation is not on the list of NQF level 6 occupations, as stated in the Codes of Practice.

You do not qualify for the NQF level skill exemptions as laid out in Appendix A of the immigration"



and here's what i found on Appendix A

77E. No points will be awarded for a Certificate of Sponsorship unless:

(a) the job that the Certificate of Sponsorship Checking Service entry records that the person is being sponsored to do appears on:

(i) the list of occupations skilled to National Qualifications Framework level 6 or above, as stated in the codes of practice in Appendix J, or

(ii) one of the following creative sector occupations skilled to National Qualifications Framework level 4 or above:

(1) 3411 Artists,
(2) 3412 Authors, writers,
(3) 3413 Actors, entertainers,
(4) 3414 Dancers and choreographers, or
(5) 3422 Designers, product, clothing-related,

So - WHAT DID I DO WRONG?

[dylan]

Looks like the case worker thought that you don't come under SOC 3411. Does your job description tally with 3411 description?

[hashmil]

Looks like the case worker thought that you don't come under SOC 3411. Does your job description tally with 3411 description?

yes, quite very closely actually. and it doesnt say that they thought that i didnt come under the SOC code. they quite plainly say that it's not NQF 6 therefore have declined. They have forgotten the bit about NQF4-Creative it seems. Or have i missed something completely?

[manci]

1. what is the expiry date of your PSW visa?
2. what is the date of the refusal letter
3. have you been given right of appeal?
4. have you tried contacting the caseworker whose name is on the refusal letter?

[hashmil]

1. what is the expiry date of your PSW visa?
2. what is the date of the refusal letter
3. have you been given right of appeal?
4. have you tried contacting the caseworker whose name is on the refusal letter?

1. PSW expired on the 27th of October 2012
2. Date of refusal letter 19th December 2012
3. Yes i have
4. No i haven't. Only got the letter yesterday. should I?

[manci]

1.
Have you applied before the expiry of your PSW leave on 27 October?
4.
Without having seen the documents it appears that a mistake may have been made by the caseworker. Try to contact the caseworker by phone if there is a direct phone number on the letter and also by email if there is a full name on the letter (firstname.surname@UKBA.gsi.gov.uk). Alternatively try to phone the Immigration Enquiry Bureauu on 0870 606 7766 (difficult to get through).

Check again all the documenst, including the CoS and the copy application form and if you still cannot find a valid reason for the refusal consider lodging an appeal on form IAFT-1 on the grounds that the refusal decision is not in accordance with the Immigration Rules.

The appeal must be received by the First Tier Tribunal no later than 10 business days after the deemed date of the service of the refusal decision (noted in the top right hand corner of the refusal letter). Saturday, Sunday, Bank Holidays and the period 25-31 December are not business days.

I would also write a letter asap to the address on the refusal letter advising that you think a mistake has been made because.....and you plan to lodge an appeal.

Note that your PSW leave is automatically extended while the appeal is under consideration and you can continue to work (you may have to convince your employer of this).

[hashmil]

1.
Have you applied before the expiry of your PSW leave on 27 October?
4.
Without having seen the documents it appears that a mistake may have been made by the caseworker. Try to contact the caseworker by phone if there is a direct phone number on the letter and also by email if there is a full name on the letter (firstname.surname@UKBA.gsi.gov.uk). Alternatively try to phone the Immigration Enquiry Bureauu on 0870 606 7766 (difficult to get through).

Check again all the documenst, including the CoS and the copy application form and if you still cannot find a valid reason for the refusal consider lodging an appeal on form IAFT-1 on the grounds that the refusal decision is not in accordance with the Immigration Rules.

The appeal must be received by the First Tier Tribunal no later than 10 business days after the deemed date of the service of the refusal decision (noted in the top right hand corner of the refusal letter). Saturday, Sunday, Bank Holidays and the period 25-31 December are not business days.

I would also write a letter asap to the address on the refusal letter advising that you think a mistake has been made because.....and you plan to lodge an appeal.

Note that your PSW leave is automatically extended while the appeal is under consideration and you can continue to work (you may have to convince your employer of this).

Hi manci, thanks.

and yes, i posted it before the expiry. even on the refusal letter they have stated that the date received is before expiry. and you are right, they have also said that my previous right to remain extends if i appeal. (i guess i don't have to do any convincing to my employer, as they are in no position to let me go. it may sound weird, but they were looking for more than a year to find someone like me, and from the time the sponsorship got delayed they have been looking to get a backup - and still can't seem to find any! for them this is a "shortage" occupation, even though it's not listed on the UKBA)

there is no direct phone number, but a full name - so i could email them.

and yeah, i will be double and triple checking every document again.

should i get a lawyer or something with regard to the appeal?

[manci]

In addition to emailing try also 0870 606 7766 (and be prepared for a long wait).

If you are writing a letter also fax it to 0114 207 5865

Download IAFT-1 and the guidance notes to see what is involved in an appeal.

Only you can decide if you want to engage an advisor. It depends on whether you wish a fresh eye to go through the documents, whether the case is as straightforward as it appears to be, whether you feel confident doing the appeal yourself and whether UKBA respond before the appeal has to be despatched.

[Greenie]

1.


The appeal must be received by the First Tier Tribunal no later than 10 business days after the deemed date of the service of the refusal decision (noted in the top right hand corner of the refusal letter). Saturday, Sunday, Bank Holidays and the period 25-31 December are not business days.

27. 28 and 31 Dec are business days.

[manci]

http://hmctsformfinder.justice.gov.uk/c ... 11-eng.pdf
A business day is any day other than a Saturday or Sunday, a bank holiday, 25th to 31st December or Good Friday.

[hashmil]

http://hmctsformfinder.justice.gov.uk/c ... 11-eng.pdf
A business day is any day other than a Saturday or Sunday, a bank holiday, 25th to 31st December or Good Friday.

thank god! our offices are shut the whole next week as well!

[Greenie]

http://hmctsformfinder.justice.gov.uk/c ... 11-eng.pdf
A business day is any day other than a Saturday or Sunday, a bank holiday, 25th to 31st December or Good Friday.

sorry you are right, i was thinking of the definition in the immigration rules which is different

[Gagan1986]

Is it not correct if you are switching it from PSW you need to have minimum of NQF Level 6 occupation? So if you are showing it as an Artist, it is not a NQF level 6 job. Pls read below:-

Codes of practice for Tier 2 (General) and Tier 2 (Intra company transfer)

Applicants under Tier 2 (General) or Tier 2 (Intra company transfer) must have an offer of a job at or above NQF level 6 (or the equivalent in Scotland) if they are:

applying from abroad; or
applying to switch into Tier 2 (General) from a different immigration route; or
at S/NVQ level 3 or above if the migrant is already in the UK under Tier 2 (General), Tier 2 (Intra company transfer) or a work permit if that permission to stay was granted under the rules in place on 6 April 2011.

[Jeeves]

There's an exception to that rule for a limited number of jobs, see paragraph 74B of Appendix A of the Immigration Rules:
http://www.ukba.homeoffice.gov.uk/polic ... appendixa/

[hashmil]

Is it not correct if you are switching it from PSW you need to have minimum of NQF Level 6 occupation? So if you are showing it as an Artist, it is not a NQF level 6 job. Pls read below:-

Codes of practice for Tier 2 (General) and Tier 2 (Intra company transfer)

Applicants under Tier 2 (General) or Tier 2 (Intra company transfer) must have an offer of a job at or above NQF level 6 (or the equivalent in Scotland) if they are:

applying from abroad; or
applying to switch into Tier 2 (General) from a different immigration route; or
at S/NVQ level 3 or above if the migrant is already in the UK under Tier 2 (General), Tier 2 (Intra company transfer) or a work permit if that permission to stay was granted under the rules in place on 6 April 2011.

yes, it has to be NQF 6. also there are a limited number of NQF 4 jobs allowed, also known as NQF-4-CREATIVE.. As stated in 74B(a)(ii), 77E(a)(ii) and 81A(a)(ii) in Appendix A of the immigration rules. (this is quoted on the first message on the thread as well). and i think 77E(a)(ii) is relavent to my application, as it follows with the Post Study Work option. Let me know if i'm wrong here!

[vinay1986]

Hi guys, I just wanted to update you all that my company has just been added to the list of sponsor. It took like a week and we have been assigned an A Rating.

[hashmil]

Quick update - i have posted my Appeal today, hopefully should work out ok!

does any one know how long appeals usually take?

[hashmil]

I had emailed to the person who had refused my application. She finally got back to me. Here is what she said:

"Please can you send your Passport back into me for reconsideration."

and the address to post it to.

BUT - the UKBA has retained my passport, and i have already posted my appeal (had to do it before the 10 day deadline!).

so what the hell do i do now?

[hashmil]

I wrote back, and now they have replied saying that they have found my passport. and will be reconsidering my application again. and will have to recall my appeal (ukba will let me know when to do this)

[manci]

I wrote back, and now they have replied saying that they have found my passport. and will be reconsidering my application again. and will have to recall my appeal (ukba will let me know when to do this)

if UKBA admit their mistake ask them to reimburse the appeal fee

[hashmil]

I wrote back, and now they have replied saying that they have found my passport. and will be reconsidering my application again. and will have to recall my appeal (ukba will let me know when to do this)

if UKBA admit their mistake ask them to reimburse the appeal fee

thanks manci, but to be honest i don't care about the money - as long as i get my visa! the appeal was only £80. don't want them to get annoyed.

[hashmil]

I wrote back, and now they have replied saying that they have found my passport. and will be reconsidering my application again. and will have to recall my appeal (ukba will let me know when to do this)

if UKBA admit their mistake ask them to reimburse the appeal fee

so, the person who handled my case... she just called me! explained to me that they can't do anything with the application yet because i have submitted the appeal. (even though she wanted to get it done today). So they are waiting till my appeal comes on the system, and let me know so that i can withdraw it, or see if they can do anything about it from their end. said will take about a week.

and she also mentioned about the fee i had paid. (i didn't ask. she brought this up). said that i wont be able to make a refund from the first-tier tribunal, but this wasn't my fault (i guess this was them admitting it was their fault?).

best part - she said she wasn't in office. so she called from home/somewhere else to specifically let me know about this?

[ncisgreat]

How do i contact case worker i can see only the name. I cant find email id on my appeal page

[Greenie]

I wrote back, and now they have replied saying that they have found my passport. and will be reconsidering my application again. and will have to recall my appeal (ukba will let me know when to do this)

if UKBA admit their mistake ask them to reimburse the appeal fee

so, the person who handled my case... she just called me! explained to me that they can't do anything with the application yet because i have submitted the appeal. (even though she wanted to get it done today). So they are waiting till my appeal comes on the system, and let me know so that i can withdraw it, or see if they can do anything about it from their end. said will take about a week.

and she also mentioned about the fee i had paid. (i didn't ask. she brought this up). said that i wont be able to make a refund from the first-tier tribunal, but this wasn't my fault (i guess this was them admitting it was their fault?).

best part - she said she wasn't in office. so she called from home/somewhere else to specifically let me know about this?

it is not up to you to withdraw the appeal and you shouldn't do this. Ukba should withdraw the decision, and notify the tribunal, that is the correct procedure. If you withdraw the appeal and then they remake the decision but refuse it on different grounds then you may be left without the right to appeal.

[hashmil]

I wrote back, and now they have replied saying that they have found my passport. and will be reconsidering my application again. and will have to recall my appeal (ukba will let me know when to do this)

if UKBA admit their mistake ask them to reimburse the appeal fee

so, the person who handled my case... she just called me! explained to me that they can't do anything with the application yet because i have submitted the appeal. (even though she wanted to get it done today). So they are waiting till my appeal comes on the system, and let me know so that i can withdraw it, or see if they can do anything about it from their end. said will take about a week.

and she also mentioned about the fee i had paid. (i didn't ask. she brought this up). said that i wont be able to make a refund from the first-tier tribunal, but this wasn't my fault (i guess this was them admitting it was their fault?).

best part - she said she wasn't in office. so she called from home/somewhere else to specifically let me know about this?

it is not up to you to withdraw the appeal and you shouldn't do this. Ukba should withdraw the decision, and notify the tribunal, that is the correct procedure. If you withdraw the appeal and then they remake the decision but refuse it on different grounds then you may be left without the right to appeal.

Thanks Greenie, yeah i think this is the case. Got it more clarified today, and i think they are handling it all from their end. They have asked me to not do anything, and if they need my assistance that they will let me know.