Please Help - Tier 2 General Rejected

[KPSP]

Hi Friends,

One of my friend has recently applied for Tier 2 General VISA from India and unfortunately it has been rejected.

VISAs:
His Tier 2 ICT (Short Term Staff) expired in May 2014
Entered UK on Tier 2 ICT (Short Term Staff) dependent VISA in September 2014
Left UK in February 2015.
Applied for Tier 2 General in June 2015 (After his cooling period on Tier 2 ICT VISA expired)

The VISA was rejected on the basis of cooling period and the case worker has also accounted the dependent VISA period also, stating that he left UK only in Feb 2015 which doesn't fulfill the 12 months cooling period.

Reject Reason Quoted:
Please note that if you have had a grant of leave for entry clearance, leave to enter or
remain as a Tier 2 Migrant at any time during the 12 months immediately before your date of
application, unless you were only being sponsored in Tier 2 (as recorded by the Certificate
of Sponsorship) for a period of three months or less, you will not be able to apply for further
leave under Tier 2 unless one of the following applies:
i. you were not in the UK with leave as a Tier 2 Migrant at any time during the above 12-
month period immediately before your date of application and you can provide evidence
to show this has been met as set out in paragraph 74 below, or
ii. the salary for the job that the Certificate of Sponsorship Checking Service shows you
are being sponsored to do (including any allowances listed as acceptable for this
purpose in paragraph 75 of Appendix A of the Immigration Rules) is £155,300 or
higher.

I believe cooling period applies for main applicant's VISA and not for dependent VISA's. If yes, could you please help me in directing towards the relevant link which states so.

Thanks,
KP

[geriatrix]

245HB(g)

[KPSP]

Hi Sushdmehta,

Thanks for your quick reply!!!

Forgot to mention earlier - The case worker has mentioned the same section in his reject reason.(245HB (g))
So can we also file for a review using the same section saying that the dependent VISA doesn't come under Tier 2 Migrant?

Please correct me if my understanding is wrong.

Thanks

[physicskate]

Hi Sushdmehta,

Thanks for your quick reply!!!

Forgot to mention earlier - The case worker has mentioned the same section in his reject reason.(245HB (g))
So can we also file for a review using the same section saying that the dependent VISA doesn't come under Tier 2 Migrant?

Please correct me if my understanding is wrong.

Thanks

Did he apply after the 12 months from his MAY 2014 had been completed?

Was he on a PBS dependent visa immediately before his application?

[geriatrix]

There is no mention of "dependant" in 245HB(g).

[geriatrix]

Did he apply after the 12 months from his MAY 2014 had been completed?

Was he on a PBS dependent visa immediately before his application?

VISAs:
His Tier 2 ICT (Short Term Staff) expired in May 2014
Entered UK on Tier 2 ICT (Short Term Staff) dependent VISA in September 2014
Left UK in February 2015.
Applied for Tier 2 General in June 2015 (After his cooling period on Tier 2 ICT VISA expired)

[physicskate]

Did he apply after the 12 months from his MAY 2014 had been completed?

Was he on a PBS dependent visa immediately before his application?

VISAs:
His Tier 2 ICT (Short Term Staff) expired in May 2014
Entered UK on Tier 2 ICT (Short Term Staff) dependent VISA in September 2014
Left UK in February 2015.
Applied for Tier 2 General in June 2015 (After his cooling period on Tier 2 ICT VISA expired)

I was just making sure with the OP that the details are correct... cause often we get more detail which reveals more to the case! I had missed the 'dependent' bit in my first reading and just wanted to double check.

If this is all correct, you should totally appeal the decision or ask for reconsideration from the ECO citing the reference you have given us.

[KPSP]

Thanks a lot for the information.
I will pass on the same to my friend.

[KPSP]

Hi All,

A quick update, my friend's review was also rejected stating that both main applicant and dependent come under the word "migrant".

So what so ever the VISA category is cooling off period applies to both main applicant and dependent. Might be a debatable topic ?

Thanks

[geriatrix]

The immigration rules governing (spouse / partner) PBS dependant are covered under 319A - 319E of the immigration rules, where there is no mention of "cooling-off" period (either for the dependant or for the principal migrant solely due to dependant's stay in UK). Likewise, PBS Dependant policy guidance does not mention anything about cooling-off period (neither for the dependant and nor for the principal migrant solely due to the dependant's stay in the UK).

Also, 319AA clearly states:

319AA. In paragraphs 319A to 319K and Appendix E, 'Relevant Points Based System Migrant' means a migrant granted to leave as a Tier 1 Migrant, a Tier 2 Migrant, a Tier 4 (General) Student or a Tier 5 (Temporary Worker) Migrant.

A dependant's leave is not subject to "point-based" criteria, unlike the principal migrant whose leave application is assessed on "point-based" criteria, soa dependant cannot be termed as a "PBS migrant"!!

The endorsement on a Tier 2 dependant's entry clearance or leave to remain is "Tier 2 partner" and not "Tier 2 migrant".


The decision is wrong, on multiple grounds.


Apply for a second administrative review, if given the right.
Complain to Entry Clearance Manager at the High Commission that dealt with the application.
Complain to UKV&I in the UK.