Help with visa refusal in country

[hopeless_sit]

Please help me if you can, i am so confused. My visa for extension of domestic worker has been refused. i was one of the lucky ones that is judged under pre-2012 rules and as such can apply for extension. The reason for refusal was that my employer was not paying minimum wage. (out by 60 p per hour according to minimum wage website). However my employer was giving me lots of other perks such as free telephone, food, allowance for clothes etc.
My visa has been refused and I understand why as according to NMW rules i am not being paid enough. However what shall i do next as i have been given an option for administrative review, which i think i will fail. My employer has suggested ammending the contract to meet NMW and launching new application. My application that was refused was filed before my visa ran out but at this moment in time my visa has expired (second week of may) however refusal letter was received 8 days ago.

I would really appreciate if someone can guide me to the right way.

many thanks for reading my plight.

[noajthan]

AR is generally to right wrongs committed by HO; it appear in this case HO has followed the rules and employer did not meet requirements for grant of your visa.

Its not clear if employer can simply give you a well-deserved payrise and apply again or whether she's blown it and its now too late for that (as your visa has expired).

[vinny]

Domestic workers should be paid at least the NMW. For NMW rates, see related link: GOV.UK - National minimum wage rates.

Employers of domestic workers must provide a statement confirming that the work to be carried out in the UK does not meet the terms of paragraph 57 of the National Minimum Wage Regulations 2015. This section provides an exemption from the NMW for those living as part of the family.

All domestic workers must have a contract using the template provided in appendix 7. This contract was revised in April 2015 and must be completed in full for all applications for leave to enter and leave to remain.

You must check that the salary arrangements meet the requirements of the National Minimum Wage Regulations. These rates are amended, usually annually, so you must make sure that you are using the correct rates. There is a calculator at the related link GOV.UK - National minimum wage - that can be used to check whether salaries meet the relevant rate. You must make sure that salaries quoted in monthly (or other) time periods are prorated to a weekly sum. The calculation for this would be to take a monthly sum, multiply it by 12, and divide by 52.

Please note that that the only amount that may be offset against the NMW is an accommodation offset. The amount is specified in related link GOV.UK - National minimum wage: accommodation. Allowances for items such as food, travel, phone calls, and so on, cannot be offset against the NMW entitlement.

Where you are not satisfied that the NMW entitlement is met, the application should be refused.

See also IA317172014 [2015] UKAITUR IA317172014 (17 March 2015).

[vinny]

159G. The requirements for indefinite leave to remain as a domestic worker in a private household are that the applicant:
(i)entered the United Kingdom with a valid entry clearance as a domestic worker in a private household under the Rules in place before 6 April 2012; and
(ii)has spent a continuous period of 5 years lawfully in the United Kingdom employed in this capacity; and
(iii)has met the requirements of paragraph 159A (vi) and (vii) throughout the 5 year period; and
(iv)continues to be required for employment as a domestic worker in a private household as certified by the current employer; and
(v)has demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL;and
(vi)does not fall for refusal under the general grounds for refusal; and
(vii)must not be in the UK in breach of immigration laws except that any period of overstaying for a period of 28 days or less will be disregarded; and
(viii)provides the specified documents in paragraph 159G-SD to evidence the reason for the absences set out in paragraph 128A.

159G-SD Specified documents

The specified documents referred to in paragraph 159G(viii) are:
(a)A letter from the employer detailing the purpose and period of absences in connection with the employment, including periods of annual leave.
(b)Where the absence was due to a serious or compelling reason, a personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents in relation to those reasons - e.g. medical certificates, birth/death certificates, information about the reasons which led to the absence from the UK.

where

(v) has agreed in writing terms and conditions of employment in the UK with the employer, including specifically that the applicant will be paid in accordance with the National Minimum Wage Act 1998 and any Regulations made under it, and provides evidence of this in the form set out in Appendix 7 with the entry clearance application; and

(va) satisfies the Entry Clearance Officer or Immigration Officer that, throughout their employment in the UK, the employer intends to pay them at least the National Minimum Wage rate to which they are entitled by the law in force at the relevant time; and
(vb) provides a written and signed statement from the employer confirming that the applicant is an employee and the work that will be carried out by the applicant will not constitute work within the meaning of paragraph 57 of the National Minimum Wage Regulations 2015 (as amended from time to time);

(vi) does not intend to take employment except as a domestic worker in a private household; and
(vii)can maintain and accommodate him or herself adequately without recourse to public funds;

Surprisingly, there doesn't seem to be a NMW requirement in 159G? Wonder why 159A(v) was intentionally left out in 159G(iii) or is it already covered in 159G(ii)?

Seems very odd.

However, NMW is required for extensions under 159EA(iii).

[Zoonosis]

Hello, following this with interest as in similar situation.
Please advise if you were successful in getting your visa renewed?