My application has been refused...

[WinnieYew]

Hello Everyone,

I'm writing today and hope to find some help urgently.

I'm malaysian and working for a company in London as a Product Designer.

I was on Tier1 until the 17 of august this year. My company offered me a sponsorship, the sponsorship license has been delivered etc.

I sent my application for Tier2 visa sponsored last month , with my visa and my passport. I thought everything was ok until yesterday when I receive a letter from the UKBA.

My application has been refused for the following motive :

"Your applied for a position which is not in the NQF6 level and therefore you do not meet the requirements" and have to leave the country immediately or appeal...

I know perfectly this is not NQF6, it is NQF4 (creative) and I used the SOC CODE 3422 :

3422 Product, clothing and related
designers
NQF 4
(Creative)


and the following applies

In addition, the following table lists those occupations which are skilled to NQF level
4 but not to NQF level 6. Tier 2 applicants can only be sponsored for jobs in these
occupations if:
 the job appears on the Shortage Occupation List, or
 the job is in one of the creative sector occupations marked “NQF 4
(Creative)”,

Can someone help? I will definitely appeal, but would like to know if I've done a mistake?

Many thanks in advance.. I can't leave my family alone in the UK and being deported....
[/b]

[WinnieYew]

I decided to reply to the person would dealt with my application :


Dear xxx xxxxxx,

I am writing today to let you know that I intend to appeal on the case ID xxxxxxxxx or REF xxxxxxx and the refusal of my application for Leave to Remain as Tier 2 General migrant.

Before I submit my appeal, I would like you to review the case and urge you to consider the below informations.

The decision you have made is :

"Your certificate of sponsorship states that your prospective employment most closely corresponds to occupation code 3422 on the UKBA code of practice.
This occupation code is not on the list of NQF Level 6 occupations"

However :


**********

Please find below informations for 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,


AND : http://www.ukba.homeoffice.gov.uk/sitec ... orkers.pdf

Table 3: Occupations skilled to NQF level 4
Tier 2 applicants can only be sponsored for jobs in these occupations if:
the job appears on the Shortage Occupation List, or
the job is in one of the creative sector occupations marked “(Creative)”, or
the applicant is currently in the UK under Tier 2, and has been in Tier 2 since before the changes
made on 14 June 2012 came into force, or
the applicant is currently in the UK under an old immigration category that was replaced by Tier
2, such as work permit holders


**********



The prospective employment as stated is "Product Designer" and therefore fits in the category 3422 (NQF4 Creative).

This position is exempt of NQF6 minimum level requirements and is part of the Creative Sector NQF4.

I would appreciate if you could revise my application asap as per the above information.

Please do let me know upon receipt of this email.

Kind Regards,








Can you let me know if this is correct?

Thanks in advance...
W.

[manci]

From what you write it seems that the HO decision was made in error.

If you appeal within the time allowed for appeals your T1 leave continues (section 3C) and you can continue working.

Send also an email (+ a first class letter) to the HO setting out your case. The email address of the caseworker is: firstname.lastname@ukba.gsi.gov.uk
. If they agree that the decsision was erroneous they may reverse it.

[manci]

Your draft letter is OK although it is not necessary to include quotes from the Immigration Rules - the HO know what the rules are.

The HO may not reply before the short time allowed for submitting appeals runs out. Don't delay submitting the appeal beyond the time allowed. The appeal must be received by the First Tier Tribunal not later than 10 working days after the deemed date of service of the refusal letter (noted on the letter)

[WinnieYew]

From what you write it seems that the HO decision was made in error.

If you appeal within the time allowed for appeals your T1 leave continues (section 3C) and you can continue working.

Send also an email (+ a first class letter) to the HO setting out your case. The email address of the caseworker is: firstname.lastname@ukba.gsi.gov.uk
. If they agree that the decsision was erroneous they may reverse it.

I just tried to email the person but received a bounce back from her email. I suspect she might be an intern or assigned to the team temporarily. Any suggestion ?

[WinnieYew]

Your draft letter is OK although it is not necessary to include quotes from the Immigration Rules - the HO know what the rules are.

The HO may not reply before the short time allowed for submitting appeals runs out. Don't delay submitting the appeal beyond the time allowed. The appeal must be received by the First Tier Tribunal not later than 10 working days after the deemed date of service of the refusal letter (noted on the letter)

Thanks,

I added the immigration rules because I suspect the HO is not fully aware of them, or they wouldn't have made the mistake in the first place

[geriatrix]

Do not forget to submit the appeal within stipulated time.

[WinnieYew]

Do not forget to submit the appeal within stipulated time.

Yes, the letter is dated from the 19th of august but received it only on Friday.

I assume if I submit the appeal online tomorrow it's ok? I then need to send my documents by post to the tribunal? how long do I have between submitting the appeal and send the documents? Do they need to receive the documents within 10 business days or just the appeal ?

[Jeeves]

Some UKBA accounts now end @homeoffice.gsi.gov.uk, so maybe try firstname.lastname@homeoffice.gsi.gov.uk too.

[WinnieYew]

I assume if I submit the appeal online tomorrow it's ok? I then need to send my documents by post to the tribunal? how long do I have between submitting the appeal and send the documents? Do they need to receive the documents within 10 business days or just the appeal ?

Also, is there any particular evidence I need to send them? I can't possibly send them a copy of their own rules no?

[manci]

I just tried to email the person but received a bounce back from her email. I suspect she might be an intern or assigned to the team temporarily. Any suggestion ?

a) try emailing again using the email address Jeeves suggested firstname.lastname@homeoffice.gsi.gov.uk

b) send a fax, there may be a fax number on the refusal letter. If not. use 0114 207 5865

c) first class letter

[manci]

I assume if I submit the appeal online tomorrow it's ok? I then need to send my documents by post to the tribunal? how long do I have between submitting the appeal and send the documents? Do they need to receive the documents within 10 business days or just the appeal ?

Also, is there any particular evidence I need to send them? I can't possibly send them a copy of their own rules no?

http://www.justice.gov.uk/tribunals/imm ... um/appeals

[WinnieYew]

Thanks Manci, I'll follow the procedure.

I did try to email both email addresses you guys gave me but return a bounce back each time.

I also sent a fax to the number you gave me, hopefully will help.

I will send a letter Tuesday and will submit the appeal tomorrow morning.

In the meantime, if you have a contact I could send the email to at the HO, I would appreciate, even someone who can forward my email to the person who dealt with my case.

Winnie.

[WinnieYew]

Hi,

One last thing.

Can you please read the below and let me know if I understood the refusal decision?

The secretary of state is not satisfied that the job you are being sponsored for meets the minimum required skill level as defined in Appendix A and the Codes Of Practice

In Line with Appendix A we have therefore been unable to award points for Sponsorship.

The reason for this decision is detailed below :

Your certificate of sponsorship states that your prospective employment most closely corresponds to occupation 3422 on the UK Border Agency's code of practice for sponsors.

The occupation code is not on the list of NQF level 6 occupations as stated in the Codes of Practice

You do not qualify for the NQF 6 Level skill exemptions as laid out in Appendix A of the immigration rules.

The skill job you are being sponsored should be at least NQF 6 Level.




I have been rewarded points for Salary though....


Please confirm from your knowledge that the HO think that 3422 is not NQF6 and Sponsorship can only be given to NQF6? My previous arguments are rights, aren't they?

Thank you very much.
Winnie.

[hashmil]

I just tried to email the person but received a bounce back from her email. I suspect she might be an intern or assigned to the team temporarily. Any suggestion ?

a) try emailing again using the email address Jeeves suggested firstname.lastname@homeoffice.gsi.gov.uk

b) send a fax, there may be a fax number on the refusal letter. If not. use 0114 207 5865

c) first class letter

This is what i suggest you doing. Contact them directly, as this is a mistake on their behalf.

I would recommend you NOT to send an appeal. Why? - because i went through this same thing. My code was a NQF4-Creative job as well. and they refused it giving the same reasons. I sent for the appeal, but only contacted them afterwards and pointed out they made a mistake. They acknowledged it and wanted to reverse the decision. But because i had submitted the appeal they took about 2 months to just recall the appeal before they could do anything with it.

so yeah, simply email to the person who made the decision. contrary to popular belief they are quite nice friendly people most of the time (or at least the person who i was in contact with was - she even emailed me almost every day giving me updates on what was going on).

EDIT - on second thoughts, if you are running out of time, and they are not responding to direct emails - then the better option will be to go for the appeal. but would recommend to wait as long as you can until you can get in touch with them before submitting an appeal. this is purely because recalling the appeal later on if necessary (which the UKBA do it on your behalf if they made a mistake) could be a bit of a nightmare.

EDIT 2 - WinnieYew- i am PM'ing you the email address of the case worker who handled my application. try emailing her as a way to get through to your case worker.

[geriatrix]

If the OP does not appeal and the OP is unable to email the caseworker or the email elicit no response or UKBA refuses to change the decision, the OP will become an overstayer in the UK from the day after the deadline for appeal submission. There goes the prospect of ILR down the drain!!

So, please don't go about making suggestions without taking into account all the variables in play.

[hashmil]

If the OP does not appeal and the OP is unable to email the caseworker or the email elicit no response or UKBA refuses to change the decision, the OP will become an overstayer in the UK from the day after the deadline for appeal submission. There goes the prospect of ILR down the drain!!

So, please don't go about making suggestions without taking into account all the variables in play.

I do agree, which is precisely why i added the "EDIT" bit afterwards. As you said the risk is not worth taking

[WinnieYew]

They asked me not to appeal and they said they review the case as we speak as they managed to find out they may have made a mistake.

I can't understand how they can ask me not to appeal.

Can I take the email of the UKBA officer as official not to appeal?

This is crucial....

[hashmil]

Here's the reference thread to what i had to go through.

http://www.immigrationboards.com/viewtopic.php?t=121317

Also - if they asked not to appeal, this means they are considering reversing the decision. Pretty much what happened with me - though i had already sent my appeal before they could reply to me.

[manci]

Can I take the email of the UKBA officer as official not to appeal?

No, you should not. If you don't receive official confirmation before the deadline for submitting the appeal that they withdrew the refusal decision and allowed your application for a grant of leave then submit the appeal. Refer to Sushdmehta's post (above).

If they withdraw the refusal decision after you submitted the appeal claim the appeal fee from the HO.

[WinnieYew]

Thanks Manci,

I've been told if there is an appeal submitted they won't be able to review the case internally and might have to wait for Months...


What can't this be less complicated?...

[WinnieYew]

Hi,

Quick update.

My case has been reviewed, but they do not want to disclose the decision by phone or email. I have been sent another letter by post and a tracking number, I'm waiting for delivery tomorrow or Saturday.

I still have until Tuesday to place the appeal so Will wait a little bit, but been told If I want to appeal it will be on the new reference number if needed.

I just hope the reviewed decision is a good news.....

Thanks.