RLMT - Discrepancy between Immigration Rules and guidance

[manci]

Can anyone throw light on the apparent discrepacy between the Immigration Rules and the current (04/13) Tier 2 policy guidance with regard to the Resident Labour Market Test?

From the current (April 2013) Immigration Rules, Appendix A:

Resident Labour Market Test exemption applies
Post-Study Work
78B. In order for a Resident Labour Market Test exemption to apply for post-study work:
(a) the applicant must be applying for leave to remain,
(b) the applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain as:
(1) a Tier 1 (Post-Study Work) Migrant,
........................
(4) a Tier 4 Migrant,

This April 2013 change in the Immigration Rules doesn't seem to be reflected in the Tier 2 policy guidnace 04/13, paras 91 and 92, which still state that current leave to remain is required for the RLMT exemption to apply when switching from Tier 1 PSW or Tier 4 to Tier 2 General.

[vinny]

The Immigration rules takes precedence over guidance.

[mthila]

My application for Tier 2 visa was refused initially and by the time I submitted my 2nd application, I didn't have leave to remain in the UK, but I previously had visa as Tier 4 Gen student.

When I went to PEO with my 2nd application, I carried a cover letter which had the following statement which explained that I am excepted from the RLMT..

• I score 30 points for a Certificate of Sponsorship issued by my sponsor, Goodwin PLC, to work as a Computer Programmer. (Please note that I meet the requirements of paragraph 78B of Appendix A so am exempted from the Resident Labour Market Test.)

UKBA accepted this and granted me the visa without having the RLMT completed.

NB: in the sponsorship certificate, you should mention that the RLMT is met (i.e. "tick the box") and underneath, we should explain that I have / had visa as such category and therefore I am exempted from the RLMT