Tier 2 rejected. Help please?

swgirl · Post by **swgirl** » Wed Apr 03, 2013 5:53 am

Hello all,
I had applied for my tier 2 from PSW in December. However, company did not have sponsor licence which we got really quickly and I gave my biometrics. I have now gotten rejected on two grounds:
1) My employer made a mistake and said I work 40 hours a week as opposed to 37.5 which is what I actually work. I am the only migrant employee at work and this is our first application and it was an honest mistake.
2) They did not give me points for English language because they said I was switching from a student visa to a tier 2, which is incorrect. I am switching from tier 1 PSW to tier 2 general.
Not sure what to do right now, my PSW expired in dec and I have now overstayed. I have 9 days to appeal.
What do you suggest is the best course of action? I'm completely clueless and stumped about what to do. I am happy to hire a lawyer should it help.
Any advice would be greatly appreciated.

Post by **manci** » Wed Apr 03, 2013 7:35 am

can you score 10 points for English? Read para 115 onwards in the T2 policy guidance:
http://www.ukba.homeoffice.gov.uk/sitec ... idance.pdf

swgirl · Post by **swgirl** » Wed Apr 03, 2013 8:01 am

Yes I can. I have a UK Masters degree and I have been previously granted leave under Tier 1.

Post by **manci** » Wed Apr 03, 2013 8:53 am

If your T2 application was made before your PSW leave expired you had section 3C leave until the refusal decision, so you have only been overstaying since the refusal decision.

The options from the UK are:

a) appeal

b) get a new CoS from the employer assuming they have a CoS allocation available for you (NB the year change on 6 April) and re-apply within the 28 day window from the refusal decision but note that if this application is also refused you will not get a right to appeal

swgirl · Post by **swgirl** » Wed Apr 03, 2013 9:08 am

I don't think we have a CoS allocation left. I will check but it is unlikely. Do I have to get this done by April 6th? I'm not sure how it works in accordance with the financial year.
If I appeal, what are my chances? Considering that in one instance my employer was wrong and the UKBA were wrong as well?

swgirl · Post by **swgirl** » Wed Apr 03, 2013 9:17 am

I also forgot to mention that they are yet to return my documents and passport. How do I go about reapplying?

Post by **manci** » Wed Apr 03, 2013 9:31 am

swgirl wrote:I don't think we have a CoS allocation left. I will check but it is unlikely. Do I have to get this done by April 6th? I'm not sure how it works in accordance with the financial year.

CoS allocations are for a year only, 6 April to 5 April the following your. Your employer may or may not have applied for an allocation for 2013/14 - you need to check. If they have not applied so far they can apply any time but the sooner the better because of your 28 day window for a re-application.

If I appeal, what are my chances? Considering that in one instance my employer was wrong and the UKBA were wrong as well?

Have you definitely established from the T2 policy guidance that you should have scored 10 points for English and therefore UKBA were wrong in refusing the application on this ground?

Post by **manci** » Wed Apr 03, 2013 9:35 am

swgirl wrote:I also forgot to mention that they are yet to return my documents and passport. How do I go about reapplying?

the same form as you used before:
http://www.ukba.homeoffice.gov.uk/sitec ... nform1.pdf

swgirl · Post by **swgirl** » Wed Apr 03, 2013 10:32 am

Yes, I am 100% sure that I should have gotten points for English language. They said they were not satisfied that I fulfil the conditions because I was on a student visa and not under any of the following categories with Tier 1 listed on it, which was definitely an oversight on their part. I was not on a student visa, like they think, I am on a Tier 1 PSW.
Thank you so much for all your help. I'll keep you posted on how things go. Off to see a lawyer anyway, something tells me I shouldn't be doing this without legal representation.

Post by **manci** » Wed Apr 03, 2013 11:30 am

swgirl wrote:Yes, I am 100% sure that I should have gotten points for English language. They said they were not satisfied that I fulfil the conditions because I was on a student visa and not under any of the following categories with Tier 1 listed on it,
if you are 100% sure that's fine but note that T1General) is not the same as T1(PSW)
which was definitely an oversight on their part. I was not on a student visa, like they think, I am on a Tier 1 PSW.
Thank you so much for all your help. I'll keep you posted on how things go. Off to see a lawyer anyway, something tells me I shouldn't be doing this without legal representation.

swgirl · Post by **swgirl** » Wed Apr 03, 2013 12:27 pm

My reason for refusal states this:
In view of the fact that you were last granted leave to enter the UK as a Student which expired on 10 Dec 2012, the Sec of State is not satisfied that you have, or have last been granted, Entry Clearance, Leave to Enter or Remain in the UK as either: a Tier 1 Migrant. Followed by a lot of other options.

My last leave was not a Student, it did not expire on 10 Dec 2012, it was on 4 Jan 2011 and I have been a Tier 1 migrant after that. I find this very confusing but I am leaning towards a reapplication.

swgirl · Post by **swgirl** » Wed Apr 03, 2013 5:43 pm

Hi Manci,
My lawyer has suggested reapplying. We are putting in a request for the CoS allocation today. Do you have any idea how long it takes to come through?

Post by **manci** » Wed Apr 03, 2013 5:45 pm

Since you just got the refusal letter and will either appeal or re-apply within the allowed time in any case, there is no harm contacting the caseworker immediately, and in parallel with whatever action you will take, by fax and/or email - it has been known that sometimes if a UKBA decision is wrong, based on the rules, they reverse it.

The caseworker's name and fax number should be on the refusal letter. The email address is firstname.surname@UKBA.gsi.gov.uk

1.
get a letter from the employer addressed to UKBA in which they explain that they made a mistake about your working hours and enclose it

2
Regarding English make absolutely sure by reference to the T2 policy guidance that you should have scored 10 points and explain why. If there is any doubt enclose a certified copy of your degree certificate from the UK uni you obtained your degree from.

UKBA made a miistake in assuming that at the time of your application you were on T4 rather than T1 PSW
BUT
that is their mistake and doesn't absolve you from complying with the rules.

Post by **manci** » Wed Apr 03, 2013 6:09 pm

swgirl wrote:Hi Manci,
My lawyer has suggested reapplying. We are putting in a request for the CoS allocation today. Do you have any idea how long it takes to come through?

It varies - ask your employer to call the UKBA employer helpline to try and find out: 0300 123 4699.

Make sure that the request for an increase in CoS allocation is for the year commencing 06/04/2013 and not for the current year as it is not likely that the allocation will come through today or tomorrow.

Your employer should request urgent treatment of their request on the basis that the CoS allocation is for a migrant whose leave expires within the next 2 weeks (=you) and since your passport has been retained by UKBA they should enclose a copy fof your refusal letter as proof.
scoc@ukba.gsi.gov.uk
sponsorlicensing.support@ukba.gsi.gov.uk
SponsorProgress@homeoffice.gsi.gov.uk

swgirl · Post by **swgirl** » Wed Apr 03, 2013 8:34 pm

I have e-mailed the caseworker although there is no fax number given on the letter with a copy of the documents which I said I am happy to send over.

Have also asked the company to request for an urgent treatment of the CoS. I have spoken to the lawyer and they also recommend reapplying as there was a mistake on the company's part despite the UKBA making a mistake and it would be risky to play it on that alone at the appeal.

I know I have 28 days from the date of refusal to reapply. I just hope the CoS allocation come through before -- we will keep chasing up on this. They were very efficient with the sponsor licence process and reverted back to us within days when we requested an urgent treatment.

I have another question -- should I submit the appeal and then withdraw it when the CoS comes through? If it takes more than 28 days? And then submit a fresh application? I understand that it will be out of time and that is immediate grounds for refusal but it is at the caseworker's discretion.

Just trying to figure out a few back-up plans!

You have been incredibly helpful

Post by **manci** » Thu Apr 04, 2013 4:50 pm

swgirl wrote:I have another question -- should I submit the appeal and then withdraw it when the CoS comes through? If it takes more than 28 days? And then submit a fresh application? I understand that it will be out of time and that is immediate grounds for refusal but it is at the caseworker's discretion.

consult your solicitor but in case your direct approach to the caseworker doesn't produce the desired result a belt and braces procedure would be:

If by the time you have to despatch the appeal to reach the tribunal in time the sponsor is not in a position to assign the CoS (because they have not received the requested allocation yet) then send off the appeal.

If after you sent off the appeal but before the end of the 28 day window the sponsor is in a position to assign the CoS to you then withdraw the appeal and re-apply.

If after you sent off the appeal but before the end of the 28 day window the sponsor is still not in a position to assign the CoS to you (unlikely, especially if urgent treatment has been requested) then either take your chances at the appeal or leave the UK and apply for entry clearance from abroad with a restricted CoS (which will probably require RLMT)

swgirl · Post by **swgirl** » Thu Apr 04, 2013 6:06 pm

Hi Manci,

Thank you for that. The UKBA approved the request today itself but when my employer tries to confirm the CoS it states that you don't have the allocation despite a confirmation e-mail from them saying it has been approved and the account has been updated with the new allocation.

I guess this is a glitch from their side!

Post by **manci** » Thu Apr 04, 2013 7:45 pm

be patient - if the allocation doesn't show on the SMS tomorrow ask your employer to phone the employer helpline 0300 123 4699

Is the allocation for 2013/14?

If you decide to re-apply pay attention to the new codes of practice based on SOC2010. They come into effect on 6 April (there are new SOC codes, skill levels, minimum salaries, weekly hours, etc.):
http://www.ukba.homeoffice.gov.uk/sitec ... orkers.pdf

If possible, ask to see and check the data you employer puts into the SMS before assigning the CoS. As you know, if the re-application is refused for any reason you will not get a right to appeal and will not be able to re-apply in-country.

swgirl · Post by **swgirl** » Thu Apr 04, 2013 7:53 pm

I did check with them -- there was no option to pick the year as 2013/2014 anywhere on the system so we assumed it was for the coming year. But can't tell with the HO. Do you know if there is another contact number? All lines on that just lead to automated systems. I will definitely check this up with them tomorrow but we have written to them with a copy of their email which states that we had been allocated the CoS and it should have been on our system.

swgirl · Post by **swgirl** » Fri Apr 05, 2013 11:02 am

Hi Manci -- They got back to us and said the allocation will appear only tomorrow so the new rules will apply.
Will be revising my job accordingly too.
Fingers crossed for the reapplication!

ncisgreat · Post by **ncisgreat** » Sat Apr 06, 2013 1:09 am

manci wrote:If your T2 application was made before your PSW leave expired you had section 3C leave until the refusal decision, so you have only been overstaying since the refusal decision.

The options from the UK are:

a) appeal

b) get a new CoS from the employer assuming they have a CoS allocation available for you (NB the year change on 6 April) and re-apply within the 28 day window from the refusal decision but note that if this application is also refused you will not get a right to appeal

She cant reapply if her visa has expired.. 28 days is counted from the day visa has expired not the refusal date

ncisgreat · Post by **ncisgreat** » Sat Apr 06, 2013 1:17 am

swgirl wrote:I also forgot to mention that they are yet to return my documents and passport. How do I go about reapplying?

If your visa has expired and its already more than 28 days normally you cant make fresh application. Some people have managed to do that but if incase rejected you wont have appeal right

I will suggest for appeal... Winning chances is 50-50 or may be more but not less
Because its not your mistake judge may allow your appeal on the basis of fairness.

Post by **vinny** » Sat Apr 06, 2013 1:32 am

ncisgreat wrote:She cant reapply if her visa has expired.. 28 days is counted from the day visa has expired not the refusal date

Leave is "treated as continuing" until Section 3C lapses or until the appeal is finally determined.

ncisgreat · Post by **ncisgreat** » Sat Apr 06, 2013 9:03 am

vinny wrote:
ncisgreat wrote:She cant reapply if her visa has expired.. 28 days is counted from the day visa has expired not the refusal date
Leave is "treated as continuing" until Section 3C lapses or until the appeal is finally determined.

You cant make new application if your leave is under section 3c.
Withdrawing appeal and well explaining your situation ukba may accept new application but its not under their rules. If they reject application the option would be leaving the country only

Post by **vinny** » Sat Apr 06, 2013 9:07 am

ncisgreat wrote:You cant make new application if your leave is under section 3c.

That's correct. However as leave continues under Section 3C, then the 28 days overstay limit hasn't started yet?

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Tier 2 rejected. Help please?

Tier 2 rejected. Help please?