Tier 2 General refusal - wrong SOC code

[nikita10]

we now have decided to re-apply however we are requesting allocation of CoS and just heard that it will take them 8 weeks!
we are not really sure what to do now! please help!

You need to find another sponsor asap or otherwise leave the country within 28 days of your visa expiry date. You will need to apply for entry clearence later. I'm not sure if there is any other way out but please make sure you don't break the law. If you do, you'll have all sorts of troubles with HO UKIV.

I hope all gets sorted for you.

[kobrakai]

hi nikita,
thanks for your reply, in the end we appealed in time to buy some time. and the day after that a new CoS was allocated and now assigned to me with the correct info this time so im ready to re-apply. problem is now i have to withdraw the appeal. but cannot withdraw yet because it has not been registered in their system yet. so at the moment, we are just waiting.

so my current moves are:
1. wait for a confirmation from the tribunal about my appeal
2. write to them to withdraw
3. (i'm guessing they will confirm back that the appeal has been withdrawn)
4. stop working and book premium application appointment
5. apply and get a same day decision.

would you know what the process of withdrawing an appeal like? it looks promising now i think! Thanks for the support and advice!

[hermosa]

Hi,

I would like some help urgently.

I applied to switch from tier 4 to tier 2 on the 21st of January. My tier 4 visa expired on the 23rd of jan. I just received a letter saying my application was refused due to inappropriate salary because my CoS states that my prospective employment most closely corresponds to SOC 2110. It also says that my passport has been retained and a decision to remove me from the UK has also been made. My current BRP which expired on the 23rd has been destroyed as it is invalid.

Turns out my employer put the wrong SOC code even though there is an SOC that directly matches my application. However that is because the home office worker who advised him only provided limited information on the codes. The letter also says I have the right to appeal under the stated grounds which would mean the home office made the mistake. However since it was my employer who put the wrong SOC code, then I don't really have grounds for an appeal. Nonetheless, I have read in other forums where people in similar cases appealed to allow them remain in the UK while they got a new CoS assigned, then withdrew the appeal and reapplied.

I have a number of questions:

1-even if I appeal, in the hopes of reapplying with a new CoS, how can I do that as my current leave has expired, the BRP has been destroyed and I do not have my passports because they retained it and didn't say how to get it

2-Since my current leave has expired, will I be able to reapply from within the UK, since they have said a decision to remove me from the UK has been made

3-If I can reapply within the UK, within the 28 day period, will I be classed as an overstayer and if so what will be the implications of this

4- Alternatively what if my employer was willing to increase my salary to the appropriate level for the 'incorrect' SOC code, what can I do. ie -Will I need to reapply, if my employer informs the HO of this, that in error they put the wrong SOC but is willing to
increase my salary appropriately, therefore meaning I meet the requirements
- If I do need to reapply, can I use the existing CoS and RLMT for which the CoS was attained, as they are still valid,
- will a sponsor's note added saying that my salary will actually be the appropriate salary as opposed to the one initially
put on the CoS suffice with a Cover letter explaining this or saying they erroniously put the wrong salary

FINALLY, in the reapplication what migrant category do I put ie initially it was switching from tier 4 to tier 2, as my tier 4 visa had not yet expired, so in this reapplication, what would it then be. My employer was asking the same question because in creating a new CoS so this then isnt a reason for them to refuse the application.

Please get back to me ASAP, I greatly appreciate the help. Thanks in advance

[manci]

@hermosa
there is no 2110 SOC code.
.
Agree the job and salary with the prospective sponsor. The job must be NQF level 6 and the salary at least the minimum as per code of practice. The sponsor should then assign a new unrestricted CoS to you on the basis of which you can re-apply in-country.
You will be an overstayer from the date of the refusal but up to 28 days overstaying is disregarded for immigration purposes.

I expect you have only been given appeal rights on human rights grounds.

[Cross87]

If it is important for you/ the company that you continue working then you should appeal within the 10 working day period allowed for the appeal. This is because then your PSW leave will continue automatically (under section 3C) until the appeal is decided. If the company accepts that the refusal was because an error of theirs they may pay for a solicitor to draft and submit the appeal but you may decide to diy by filling in and submitting the form. The appeal fee is £80 or £140 depending on whether you opt for a paper or oral hearing.
http://www.tribunals.gov.uk/Immigration ... IAFT_1.pdf

If you don't appeal you will not be allowed to work beyond the 10 working day appeal period. You will then be an overstayer but can still re-apply within 28 days of the date of the refusal decision. If you do that there will be no right of appeal if the re-application is refused for whatever reason.

Note that an appeal can be withdrawn at any time before the hearing but you cannot re-apply unless the appeal is withdrawn (if you submit one).

Your sponsor should assign a new CoS with a NQF level 6 SOC code which matches your job description. This will be valid for 3 months.

Before re-applying you could try contacting the caseworker and explain that a mistake has been made by the sponsor and ask for a reconsideration of your application with the new CoS. This must be supported by a letter from the sponsor admitting the mistake. It may also help to say that you have appealed. Sometimes this works.

I just wanted to confirm that this process works when your visa has expired . My Tier 4 visa expired on the 30th January, and I applied for my Tier 2 General on that day. I just received the refusal today on the basis of wrong information on my CoS (5 years instead of 3 years) , dated yesterday. Am I still eligible to reapply if I can get a new CoS?

Also, as Hermosa asked, do the RLMT and Tier 4 exemptions still apply to us? Finally, is there anywhere in the law that I can find these pieces of information?

Many thanks!

[manci]

If it is important for you/ the company that you continue working then you should appeal within the 10 working day period allowed for the appeal. This is because then your PSW leave will continue automatically (under section 3C) until the appeal is decided. If the company accepts that the refusal was because an error of theirs they may pay for a solicitor to draft and submit the appeal but you may decide to diy by filling in and submitting the form. The appeal fee is £80 or £140 depending on whether you opt for a paper or oral hearing.
http://www.tribunals.gov.uk/Immigration ... IAFT_1.pdf

If you don't appeal you will not be allowed to work beyond the 10 working day appeal period. You will then be an overstayer but can still re-apply within 28 days of the date of the refusal decision. If you do that there will be no right of appeal if the re-application is refused for whatever reason.

Note that an appeal can be withdrawn at any time before the hearing but you cannot re-apply unless the appeal is withdrawn (if you submit one).

Your sponsor should assign a new CoS with a NQF level 6 SOC code which matches your job description. This will be valid for 3 months.

Before re-applying you could try contacting the caseworker and explain that a mistake has been made by the sponsor and ask for a reconsideration of your application with the new CoS. This must be supported by a letter from the sponsor admitting the mistake. It may also help to say that you have appealed. Sometimes this works.

I just wanted to confirm that this process works when your visa has expired . My Tier 4 visa expired on the 30th January, and I applied for my Tier 2 General on that day. I just received the refusal today on the basis of wrong information on my CoS (5 years instead of 3 years) , dated yesterday. Am I still eligible to reapply if I can get a new CoS?
I expect you didn't get a right to appeal (except on human rights grounds). You can re-apply within 28 days of the refusal with a new CoS.

Also, as Hermosa asked, do the RLMT and Tier 4 exemptions still apply to us?
if your last leave was T4 then yes, the RLMT exemption applies.

Finally, is there anywhere in the law that I can find these pieces of information?
Tier 2 policy guidance
https://www.gov.uk/government/uploads/s ... 3_2015.pdf
Many thanks!

[rd535]

Hi all,
I am in a similar type of problem. If anyone can advise me a right way??

I am a computer science graduate student,and I applied for Tier 2 visa a month ago through a company . But my visa got rejected stating that the salary doesn't match the requirements. I suggested the company to get COS for Web Design and Development Professionals, but the company or the solicitors mistakenly got COS in IT Specialist Manager and I wasn't shown the document properly. They just put the salary 23000 pounds,whereas the requirement was 25000 pounds. As I still have 6 months visa left,I am not allowed to appeal.
In this case now,I would like to know if anything can be done?? Will the home office issue a new COS again in my name with the position Web Design and Development Professionals and minimum salary as 20,500 pounds?
Really need a good advise on what to do, as I am already in loss due to the visa fee and lawyer fee,and got nothing.
Many Thanks.

[Cross87]

If it is important for you/ the company that you continue working then you should appeal within the 10 working day period allowed for the appeal. This is because then your PSW leave will continue automatically (under section 3C) until the appeal is decided. If the company accepts that the refusal was because an error of theirs they may pay for a solicitor to draft and submit the appeal but you may decide to diy by filling in and submitting the form. The appeal fee is £80 or £140 depending on whether you opt for a paper or oral hearing.
http://www.tribunals.gov.uk/Immigration ... IAFT_1.pdf

If you don't appeal you will not be allowed to work beyond the 10 working day appeal period. You will then be an overstayer but can still re-apply within 28 days of the date of the refusal decision. If you do that there will be no right of appeal if the re-application is refused for whatever reason.

Note that an appeal can be withdrawn at any time before the hearing but you cannot re-apply unless the appeal is withdrawn (if you submit one).

Your sponsor should assign a new CoS with a NQF level 6 SOC code which matches your job description. This will be valid for 3 months.

Before re-applying you could try contacting the caseworker and explain that a mistake has been made by the sponsor and ask for a reconsideration of your application with the new CoS. This must be supported by a letter from the sponsor admitting the mistake. It may also help to say that you have appealed. Sometimes this works.

I just wanted to confirm that this process works when your visa has expired . My Tier 4 visa expired on the 30th January, and I applied for my Tier 2 General on that day. I just received the refusal today on the basis of wrong information on my CoS (5 years instead of 3 years) , dated yesterday. Am I still eligible to reapply if I can get a new CoS?
I expect you didn't get a right to appeal (except on human rights grounds). You can re-apply within 28 days of the refusal with a new CoS.

Also, as Hermosa asked, do the RLMT and Tier 4 exemptions still apply to us?
if your last leave was T4 then yes, the RLMT exemption applies.

Finally, is there anywhere in the law that I can find these pieces of information?
Tier 2 policy guidance
https://www.gov.uk/government/uploads/s ... 3_2015.pdf
Many thanks!

Thanks again, Manci. I actually have a right to appeal, under Section 82(1) - right to appeal, general. I also spoke to an advisor at the UKVI who said that I do not have leave to remain. Will this affect my new application? He also said that I can apply for an Out-of-Time application immediately. This is confusing, as I saw you explain in a previous post that you should not make a fresh application during this appeal period. My employer is preparing my new CoS as I type. Is there anything I should consider before applying?

[manci]

get a copy of the CoS and check the SOC code (the job should be NQF level 6), check that the job description is in line with the SOC code and that the salary is at least the minimum (for a 39 hour week) according the code of practice

[Cross87]

get a copy of the CoS and check the SOC code (the job should be NQF level 6), check that the job description is in line with the SOC code and that the salary is at least the minimum (for a 39 hour week) according the code of practice

Thank you again, Manci. I have the CoS now and all the information is correct. But I am even more confused. I haven't started work yet, and I am not sure if I should appeal or make a fresh application. I am also worried about the RLMT exemption, as another advisor told me today that my former leave has no bearing on my new application. My refusal is dated effective 2nd March, so under the 28 day rule I should have until the 30th of March. I also find it faster to make a fresh application, but I am afraid it will be rejected on the grounds of my Tier 4 visa no longer being valid. Please help!

[manci]

get a copy of the CoS and check the SOC code (the job should be NQF level 6), check that the job description is in line with the SOC code and that the salary is at least the minimum (for a 39 hour week) according the code of practice

Thank you again, Manci. I have the CoS now and all the information is correct. But I am even more confused. I haven't started work yet, and I am not sure if I should appeal or make a fresh application. I am also worried about the RLMT exemption, as another advisor told me today that my former leave has no bearing on my new application. My refusal is dated effective 2nd March, so under the 28 day rule I should have until the 30th of March. I also find it faster to make a fresh application, but I am afraid it will be rejected on the grounds of my Tier 4 visa no longer being valid. Please help!

if your last leave was T4 you are exempt from the RLMT, read para 99 of the T2 policy guidance. You are eligible to re-apply within 28 days of the refusal but are not allowed to work until you get the new leave.

[Cross87]

get a copy of the CoS and check the SOC code (the job should be NQF level 6), check that the job description is in line with the SOC code and that the salary is at least the minimum (for a 39 hour week) according the code of practice

Thank you again, Manci. I have the CoS now and all the information is correct. But I am even more confused. I haven't started work yet, and I am not sure if I should appeal or make a fresh application. I am also worried about the RLMT exemption, as another advisor told me today that my former leave has no bearing on my new application. My refusal is dated effective 2nd March, so under the 28 day rule I should have until the 30th of March. I also find it faster to make a fresh application, but I am afraid it will be rejected on the grounds of my Tier 4 visa no longer being valid. Please help!

if your last leave was T4 you are exempt from the RLMT, read para 99 of the T2 policy guidance. You are eligible to re-apply within 28 days of the refusal but are not allowed to work until you get the new leave.

Thank you. One last question please: My passport was retained by the UKVI, and I'm wondering how exactly I'm supposed to submit my new application without a passport. Should I write and attach a cover letter stating this, or how exactly do I proceed? I've been scouring the forum for information, but I haven't been able to see how anyone who reapplied actually handled this.

[manci]

the application form Part C has tick boxes for the location of the passport if it is not enclosed. One of the boxes is:
"elsewhere in the Home Office"
https://www.gov.uk/government/uploads/s ... _04-14.pdf

[Cross87]

the application form Part C has tick boxes for the location of the passport if it is not enclosed. One of the boxes is:
"elsewhere in the Home Office"
https://www.gov.uk/government/uploads/s ... _04-14.pdf

Thanks a lot, Manci. I have gotten my Tier 2 Permit! Your advice was extremely helpful. Keep doing what you do. Karma will definitely bring you a lot of good luck.

[magelenn]

Dear all, I'm in the same situation, I applied for Tier 2 (general) extension on the 4 of March 2015 and on the 24th got a refusal as my Code of Practice job 1132 didn't match with the minimum £42K salary, as I was on £35K, my employer confirmed to raise it to £42K but the new CoS was allocated with a condition that it can be assigned only after the 6th of April, which due to the new rules raises my 39hrs wage to £47,900 which my employer confirmed as I am essential for the business ( as a Sales Director I bring most of the profits in). Will UKVI need explanation for such a jump in salary from original £35K to £47,900?

Since my first application UKVI kept all my documents and with a refusal letter only sent my passports, is that a normal practice? My leave expires on 29th of April 2015 and I didn't ask for docs since I planned to re-apply.

I am re-applying with new CoS tomorrow only with online application print outs and passports, reminding that all my originals are with them, do you think that is fine?

And final question please, do you think I will I be judged against the 2014 rules due to my original application and the fact they have my documents or against the new rules since I got a new CoS assigned & applied after the 6th of April?

Thank you so much for all your help and time,
Maggie