leave2remain refused, appeal lodged(urgent advice needed)

[msenuk]

Hello everyone, I'm a newbie here but following some topics for some time when needed to.

My case: My tier2 leave 2 remain expired last year as I couldnt managed to find a sponsor in the meantime. I applied under Tier 1 exceptional talent category. But it got delayed to get any decision (more than 4 months). In the meantime, I got a job offer and my potential employer made proper inquiry to UKBA about possible courses of action(as I authorised them with a letter with application reference number to get updates on my application from UKBA ) . along with other options open to me, UKBA suggested to vary my application to switch from Tier 1 to tier2 . I immediately agreed with my potential employer to go for varying option, and requested them to initiate the CoS issuing process. I also requested to notify UKBA about my decision. The employer being a leading academic institute have other businesses to take care of, slowed down a bit and havent submitted the CoS application to UKBA yet(since they made that correspondence a month ago). And both of us were complacent that UKBA will allow me to vary the application.

BUT, that didnt happen. Just before the recent changes proposed for Tier 1(exception talent )in mid march, I got the refusal letter from UKBA with the provision of right to appeal . I complied immediately and made an appeal through my solicitor.

Can you suggest what are my options now?
Does this refusal and appeal have any implications on issuing a CoS for me?My primary concern is: I dont want to loose my job offer by any means.this will simply be end of career here for me. I fear the appeal process can take long and might deter HR to stick with me.

Given the fact that the potential employer were in touch with UKBA about changes in circumstances and ,therefore, the possibility to vary the application, how desperate should I be to ask HR to pursue this so that UKBA can let me vary the application before the appeal takes place? Im very desperate but hesitant given some logical reasons you may understand.

I found in Tier2 application form(E13 p.51), that I shouldnt lodge a fresh application while any decision through appeal is outstanding. although they also say , this MAY apply to someone , not MUST. But given the fact the tribunal will send my appeal application to UKBA first(check what happens next section at http://www.ukba.homeoffice.gov.uk/visas ... o/appeals/), is there any other measure than the one above I should pursue?

I'm feeling very hopeless, stressed and so are my young family here..Please suggest me what to do?

I look forward to hearing from you very soon.

[manci]

Since you have a solicitor who is hopefully versed in immigration law seek his/her advice.

Provided your refusal was not longer than 28 days ago what I would suggest is to withdraw the appeal and submit a T2 application. Since this application would be made during a period of overstay you will not get a right of appeal if it is refused.

You would need a CoS for a T2 application. Provided the sponsor has an allocation, a CoS can be assigned in a matter of minutes. From what you write I suspect the sponsor doesn't currently have an allocation. Furthermore, CoS allocations are given to sponsors annually, the year being 6 April to 5 April the following year. You need to find out what the prospective sponsor's situation is in this regard.

If you are still withiin the 28 day period from the refusal and it is not possible to have a CoS assigned to you within this period you could submit the T2 application without it and enclose a letter from the prospective sponsor explaining what they are doing to assign a CoS to you and asking UKBA to hold the application pending the availability of the CoS.

If you are outside the 28 day period from the refusal, or if your solicitor who has all your documentation doesn't recommend a T2 application, keep the appeal going, but as new evidence concerning your T1 application cannot be considered hopefully your solicitor will have explained in the appeal the contacts your prospective sponsor had with UKBA about varying the T1 application and the prospective sponsor also provided supporting evidence or a statement confirming this.

[msenuk]

Hi Manci, thanks a lot for the reply. yes, I'm still under 2 weeks from the day I received the decision but the prospective employer's office is closed now for Easter. just a few more query for further clarification and advice:
1. My solicitor agrees with the 1st line of advice: not to withdraw appeal to put T2. Because if UKBA refuse for any reason for T2 again, I have to leave the country without any right to appeal.This also put me in a strange position to update my potential sponsor about this sudden unexpected outcome. Do you know whether my current status has any barring in issuing a CoS for me?

2. about the COS allocation by the prospective sponsor: that might be a case. but shouldn't my case fall under 'unrestricted' allocation given I worked with another sponsor in the UK for 3 years, and am also an UK graduate?

3. I like the idea of lodging a T2 application within 28 days of refusal without a CoS if that is the case. Did you mean to run this in parallel to the appeal?

4. Is there anyway I can pursue my case with UKBA through my potential employer to reconsider the case?Can you see any merit to this or whether there is any such examples you came across before?

5. My solicitor mentioned it in the appeal application that the prospective employer were in touch with UKBA re. varying T1. I still hope that the judge may ask UKBA to allow me to submit a new application. But I simply dont know when the hearing will take place and if this take longer than 2 months, I might be in trouble in keeping my job offer.

[manci]

Hi Manci, thanks a lot for the reply. yes, I'm still under 2 weeks from the day I received the decision but the prospective employer's office is closed now for Easter. just a few more query for further clarification and advice:
1. My solicitor agrees with the 1st line of advice: not to withdraw appeal to put T2. Because if UKBA refuse for any reason for T2 again, I have to leave the country without any right to appeal.This also put me in a strange position to update my potential sponsor about this sudden unexpected outcome. Do you know whether my current status has any barring in issuing a CoS for me?
no, while your are in the UK the prospective sponsior can assign an unrestricted CoS to you (provided of course that they have an allocation)

2. about the COS allocation by the prospective sponsor: that might be a case. but shouldn't my case fall under 'unrestricted' allocation given I worked with another sponsor in the UK for 3 years, and am also an UK graduate?
yes, it would be an unrestricted CoS allocation. BTW - sponsors don't have restricted CoS allocations, only unrestricted ones.

3. I like the idea of lodging a T2 application within 28 days of refusal without a CoS if that is the case. Did you mean to run this in parallel to the appeal?
no, the appeal would have to be withdrawn in that case, appeal and T2 application cannot run trogether.

4. Is there anyway I can pursue my case with UKBA through my potential employer to reconsider the case? Can you see any merit to this or whether there is any such examples you came across before?
Formal reconsideration is not possible in this case, see http://www.ukba.homeoffice.gov.uk/visas ... econsider/ . However, you and the prospective sponsor could write to UKBA giving the whole background to what UKBA advised about a possible variation of your T! application. and stating that you have appealed. It all depends - if UKBA think that your appeal may succeed, they may withdraw the refusal - there is no way of telling. It would certainly strengthen your case if you had a CoS from the prospecftive employer before writing.

5. My solicitor mentioned it in the appeal application that the prospective employer were in touch with UKBA re. varying T1. I still hope that the judge may ask UKBA to allow me to submit a new application. But I simply dont know when the hearing will take place and if this take longer than 2 months, I might be in trouble in keeping my job offer.

[msenuk]

Hi Manci, many thanks again.
One final Q for the time being(see below).

2. about the COS allocation by the prospective sponsor: that might be a case. but shouldn't my case fall under 'unrestricted' allocation given I worked with another sponsor in the UK for 3 years, and am also an UK graduate?
yes, it would be an unrestricted CoS allocation. BTW - sponsors don't have restricted CoS allocations, only unrestricted ones.

If CoS is unrestricted, how come that can be part of the monthly/annual allocation? Shouldnt this be issued without UKBA permission?

4. Is there anyway I can pursue my case with UKBA through my potential employer to reconsider the case? Can you see any merit to this or whether there is any such examples you came across before?
Formal reconsideration is not possible in this case, see http://www.ukba.homeoffice.gov.uk/visas ... econsider/ . However, you and the prospective sponsor could write to UKBA giving the whole background to what UKBA advised about a possible variation of your T! application. and stating that you have appealed. It all depends - if UKBA think that your appeal may succeed, they may withdraw the refusal - there is no way of telling. It would certainly strengthen your case if you had a CoS from the prospecftive employer before writing.

That is infact a nice suggestion worth trying without loosing any options. I will await getting the CoS first, and then will seek their help in writing to UKBA. I will update and keep these posted here.

5. My solicitor mentioned it in the appeal application that the prospective employer were in touch with UKBA re. varying T1. I still hope that the judge may ask UKBA to allow me to submit a new application. But I simply dont know when the hearing will take place and if this take longer than 2 months, I might be in trouble in keeping my job offer.[/quote][/quote]

[manci]

Hi Manci, many thanks again.
One final Q for the time being(see below).

2. about the COS allocation by the prospective sponsor: that might be a case. but shouldn't my case fall under 'unrestricted' allocation given I worked with another sponsor in the UK for 3 years, and am also an UK graduate?
yes, it would be an unrestricted CoS allocation. BTW - sponsors don't have restricted CoS allocations, only unrestricted ones.

If CoS is unrestricted, how come that can be part of the monthly/annual allocation? Shouldnt this be issued without UKBA permission?
Unrestricted CoS allocations are requested by sponsors for a whole year and if they underestimated their requirement and use them up during the year can request more. Restricted CoS-s have a monthly national quota and must be applied for individually. Restricted CoS applications received by UKBA by the 5th of a month are decided on the 11th of the same month.

4. Is there anyway I can pursue my case with UKBA through my potential employer to reconsider the case? Can you see any merit to this or whether there is any such examples you came across before?
Formal reconsideration is not possible in this case, see http://www.ukba.homeoffice.gov.uk/visas ... econsider/ . However, you and the prospective sponsor could write to UKBA giving the whole background to what UKBA advised about a possible variation of your T1 application. and stating that you have appealed. It all depends - if UKBA think that your appeal may succeed, they may withdraw the refusal - there is no way of telling. It would certainly strengthen your case if you had a CoS from the prospecftive employer before writing.
That is infact a nice suggestion worth trying without loosing any options. I will await getting the CoS first, and then will seek their help in writing to UKBA. I will update and keep these posted here.[/color=brown]
also, consult your solicitor about how to draft it for max. effect

5. My solicitor mentioned it in the appeal application that the prospective employer were in touch with UKBA re. varying T1. I still hope that the judge may ask UKBA to allow me to submit a new application. But I simply dont know when the hearing will take place and if this take longer than 2 months, I might be in trouble in keeping my job offer.

[/quote][/quote]

[THIRUPATHI]

Hi Manci, many thanks again.
One final Q for the time being(see below).

2. about the COS allocation by the prospective sponsor: that might be a case. but shouldn't my case fall under 'unrestricted' allocation given I worked with another sponsor in the UK for 3 years, and am also an UK graduate?
yes, it would be an unrestricted CoS allocation. BTW - sponsors don't have restricted CoS allocations, only unrestricted ones.

If CoS is unrestricted, how come that can be part of the monthly/annual allocation? Shouldnt this be issued without UKBA permission?
Unrestricted CoS allocations are requested by sponsors for a whole year and if they underestimated their requirement and use them up during the year can request more. Restricted CoS-s have a monthly national quota and must be applied for individually. Restricted CoS applications received by UKBA by the 5th of a month are decided on the 11th of the same month.

4. Is there anyway I can pursue my case with UKBA through my potential employer to reconsider the case? Can you see any merit to this or whether there is any such examples you came across before?
Formal reconsideration is not possible in this case, see http://www.ukba.homeoffice.gov.uk/visas ... econsider/ . However, you and the prospective sponsor could write to UKBA giving the whole background to what UKBA advised about a possible variation of your T1 application. and stating that you have appealed. It all depends - if UKBA think that your appeal may succeed, they may withdraw the refusal - there is no way of telling. It would certainly strengthen your case if you had a CoS from the prospecftive employer before writing.
That is infact a nice suggestion worth trying without loosing any options. I will await getting the CoS first, and then will seek their help in writing to UKBA. I will update and keep these posted here.[/color=brown]
also, consult your solicitor about how to draft it for max. effect

5. My solicitor mentioned it in the appeal application that the prospective employer were in touch with UKBA re. varying T1. I still hope that the judge may ask UKBA to allow me to submit a new application. But I simply dont know when the hearing will take place and if this take longer than 2 months, I might be in trouble in keeping my job offer.

[/quote]
Hi Manci,

I have similar situation,
My previous visa : PSW
Expiry Date: 13-Dec-2012
Employment Status: Full Time (24k per year at that time)
Applied for Tier 2 General: 26-Nov-2012 (With Unrestricted CoS - 2132- Software Engineer)
Refusal Letter received: 10-Jan-2013
Appeal Lodged: 24-Jan-2013
Court Hearing Date: 21-May-2013

The reason for refusal is salary criteria did not match with Job Title. My company given me wrong Job Title as "Software Engineer" in CoS but i was working as "Graduate Software Engineer" with 24k.

Now i have been promoted as Software Engineer with 31K per year.

I have few questions to ask,
1. Can i withdraw my appeal and make fresh application with new CoS?.
2. If yes, should i use unrestricted CoS or Restricted CoS?

Any help/advise much appreciated. Thanks a lot in advance.

Thiru
[/quote]

[manci]

unfortunately since you are outside the 28 day window (counted from 10 January) a further in-country T2 application would not be possible even if you withdrew the appeal.

If it was the company's mistake to give an incorrect job description, SOC code and salary in the CoS, and had they provided the correct data you would have complied with the requirements, then you could try writing to UKBA explaining the situation, telling them that you have appealed, and enclose a letter from the company confirming the facts and admitting that they had made an error. This may or may not work depending on how UKBA rate your chances at appeal.

If this doesn't work you can make your case at the appeal hearing and if the appeal is not allowed leave the UK, get a restricted CoS from the company (which could involve doing a RLMT beforehand) and apply for entry clearance from abroad.

[SimiP]

[quote=

Court Hearing Date: 21-May-2013

The reason for refusal is salary criteria did not match with Job Title. My company given me wrong Job Title as "Software Engineer" in CoS but i was working as "Graduate Software Engineer" with 24k.

Now i have been promoted as Software Engineer with 31K per year.

I have few questions to ask,
1. Can i withdraw my appeal and make fresh application with new CoS?.
2. If yes, should i use unrestricted CoS or Restricted CoS?

[/quote][/quote]

Hi,
could you please let me know if we need to submit any documents before going for the hearing???

[THIRUPATHI]

unfortunately since you are outside the 28 day window (counted from 10 January) a further in-country T2 application would not be possible even if you withdrew the appeal.

If it was the company's mistake to give an incorrect job description, SOC code and salary in the CoS, and had they provided the correct data you would have complied with the requirements, then you could try writing to UKBA explaining the situation, telling them that you have appealed, and enclose a letter from the company confirming the facts and admitting that they had made an error. This may or may not work depending on how UKBA rate your chances at appeal.

If this doesn't work you can make your case at the appeal hearing and if the appeal is not allowed leave the UK, get a restricted CoS from the company (which could involve doing a RLMT beforehand) and apply for entry clearance from abroad.

Thanks for your reply.
One more question. Can i able to make a fresh application if my appeal get refused in court?.

[manci]

unfortunately since you are outside the 28 day window (counted from 10 January) a further in-country T2 application would not be possible even if you withdrew the appeal.

If it was the company's mistake to give an incorrect job description, SOC code and salary in the CoS, and had they provided the correct data you would have complied with the requirements, then you could try writing to UKBA explaining the situation, telling them that you have appealed, and enclose a letter from the company confirming the facts and admitting that they had made an error. This may or may not work depending on how UKBA rate your chances at appeal.

If this doesn't work you can make your case at the appeal hearing and if the appeal is not allowed leave the UK, get a restricted CoS from the company (which could involve doing a RLMT beforehand) and apply for entry clearance from abroad.

Thanks for your reply.
One more question. Can i able to make a fresh application if my appeal get refused in court? not unless the judge allows it

[THIRUPATHI]

unfortunately since you are outside the 28 day window (counted from 10 January) a further in-country T2 application would not be possible even if you withdrew the appeal.

If it was the company's mistake to give an incorrect job description, SOC code and salary in the CoS, and had they provided the correct data you would have complied with the requirements, then you could try writing to UKBA explaining the situation, telling them that you have appealed, and enclose a letter from the company confirming the facts and admitting that they had made an error. This may or may not work depending on how UKBA rate your chances at appeal.

If this doesn't work you can make your case at the appeal hearing and if the appeal is not allowed leave the UK, get a restricted CoS from the company (which could involve doing a RLMT beforehand) and apply for entry clearance from abroad.

Thanks for your reply.
One more question. Can i able to make a fresh application if my appeal get refused in court? not unless the judge allows it

Thanks a lot for quick response.
I have all the supporting documents and my company given me letter saying, that was their mistake in CoS.
Do you think will i get success in court hearing with all the supporting docs?.
Did you know anyone in the past won in the similar case?
Can you suggest me any particular documents i should be taking ex. Company letter or new CoS (if required.).?

[manci]

unfortunately since you are outside the 28 day window (counted from 10 January) a further in-country T2 application would not be possible even if you withdrew the appeal.

If it was the company's mistake to give an incorrect job description, SOC code and salary in the CoS, and had they provided the correct data you would have complied with the requirements, then you could try writing to UKBA explaining the situation, telling them that you have appealed, and enclose a letter from the company confirming the facts and admitting that they had made an error. This may or may not work depending on how UKBA rate your chances at appeal.

If this doesn't work you can make your case at the appeal hearing and if the appeal is not allowed leave the UK, get a restricted CoS from the company (which could involve doing a RLMT beforehand) and apply for entry clearance from abroad.

Thanks for your reply.
One more question. Can i able to make a fresh application if my appeal get refused in court? not unless the judge allows it

Thanks a lot for quick response.
I have all the supporting documents and my company given me letter saying, that was their mistake in CoS.
Do you think will i get success in court hearing with all the supporting docs?.
Did you know anyone in the past won in the similar case?
Can you suggest me any particular documents i should be taking ex. Company letter or new CoS (if required.).?
If it was the company's mistake to give an incorrect job description, SOC code and salary in the CoS, and had they provided the correct data you would have complied with the requirements, then you could try writing to UKBA explaining the situation, telling them that you have appealed, and enclose a letter from the company confirming the facts and admitting that they had made an error. This may or may not work depending on how UKBA rate your chances at appeal.