Tier 2 ICT refused under rules of Tier 2 General

[Vickyqi]

Hi,
I am a Hong Kong citizen who's now in New York on 6-month US Business B1 visa, where I applied for tier 2 ICT Long Term Staff Migrant. All 70 points for CoS, Salary, Maintenance and Language are awarded, the refusal is based on the "requirement under 245HB of the Immigration Rules". The ECO comments reads:

"One of the criteria for entry into the UK as a Tier 2 Long Term Staff Migrant is that you must demonstrate to the Entry Clearance Officer that you have the authority to be living in the country of application in accordance with its immigration laws and that when you were given authority to live in that country or territory you were given authority to live in that country or territory for a period of more than 6 months. You are a Hong Kong national and I noted that you entered the US on a B1 US business visit visa with lieave to remain in the US for 6 months until 17/06/16, a period of 6 months. Since you do not have permission to reside in the USA fo more than 6 months, you do not meet the requirements of paragraph 28(b)(ii), and I therefore refused your application."


Firstly section 245HB is under category Tier 2 General, I don't understand why it is applied here for application on ICT. Secondly I cannot locate the above mentioned 6 months rule under para 28(b)(i), 245HB in the immigration rules posted on UKBA website. We were advised that we could apply in US and no need to go back to HK, this rule seemed to just pop out out of nowhere right before the end of year holiday season, where we applied for Priority Visa Service to process within 7 days.

Please help. Am I missing out this rule? If I am correct, then we should have enough grounds for admin review. Honestly I find this outcome absurd as applying from US or HK shouldn't make any difference since all 70 points have been granted, ICT Long Term Staff is not cheap and applying twice due to this rule not stated explicitly available online is a sheer unjust.

[geriatrix]

Yes, quoting 245HB was wrong, for your application it should have been 245GB. But that's not the problem - the issue is that you couldn't have applied for EC from the US given the fact that you are in US on a (business) visitor visa.
Read ECB05: where to apply, the policy

There is no 28(b)(i) rule!

Subject to paragraph 28A, any other application must be made to the post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant.

You don't "live" in the US but are "on a visit".


You were ill-advised.

[Vickyqi]

Thanks so much for pointing out the issue under 28A. Does this mean I should go back to HK and reapply from there? This doesn't make sense if it is the same qualification, but a sheer waste of application fee. Did you get 28A from the website ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules?

My stay in US costs the business money. Do you think it's worth going through Admin Review that takes 28 days? Or will they just tell me to go back to HK to re-apply again? I cannot believe this waste of money and time will even be allowed...

[geriatrix]

You wasted time and money on your own volition. Call it ignorance or stupidity, your choice!

I have quoted the relevant immigrtion rule (and provided you link to both the rule and the (associated) policy instruction) that clearly states that you are not allowed to do what you did. And this (rule and policy) has been in existence for atleast a decade, if not more!