Leave curtailment-Employer not aware-SMS not updated

[Porus]

There is an extremely complex issue and request esteemed experts to share their view on this case pls.
1) Refusal letter received on 25th July for dependents in offshore stating Home office curtailed main migrant's Tier2 General visa on 2nd July 15 on account of migrant incorrectly applied unrestricted CoS Visa from India . The inference is main migrant should have applied rCoS Visa.
2) Main migrant traveled to India on 25th July not knowing about curtailment and has not received any curtailment letter until then and informed the employer straight away.
3) Employer checked the online SMS system and found Visa was still valid and checked with Home office Helpdesk.Helpdesk is stating Visa is still valid and warned employer not to assign rCoS as there will be 12 months Cooling off period for the main migrant to return to UK.
4) Immigration Lawyer is asking 1000 pounds fee stating he will appeal to Tribunal to clear the home office record of the main migrant as the visa is invalid .This will remove the "cooling off" issue when new T2G main application is made with new RCOS in India. Otherwise Entry clearance officer will see the Home office system and find system not updated with visa curtailment and will invoke cooling off reason to reject the fresh T2G application .
Any expert please suggest if cooling off will apply if Employer gives rCoS and T2G main apply out of country within 60 days of curtailment date specified in refusal letter of dependent applications. Please please suggest.

[manci]

this is a difficult situation because:

a) you have a curtailed leave until 2 September BUT a curtailed leave lapses when the migrant leaves the UK, and
b) if you apply for entry clearance with an rCoS the cooling-off period will definitely kick in and you will not be able to return for 12 months.

One possibility is what the solicitor you consulted suggested, i.e. try to sort out the situation in the UK but apart from the £1k fee this is likely to take some time.

You may consider the following RISKY alternative:

Get your sponsor to assign an unrestricted CoS to you on the basis of which you could apply for an extension if you were in the UK. There shouldn't be any problem with the uCoS assuming the sponsor has an available allocation. Then travel to the UK - even if you don't have a return ticket there shouldn't be any problem with the airline as you have a visa or BRP. At the UK border you may or may not be stopped depending on whether the BFO checks the status of your leave on the system.

If you are stopped you would have to make out a case stating that:

1. you didn't have any notification about the curtailment of your leave before you left the UK and only found out about it by chance afterwards;

2.You now have a new unrestricted CoS and will apply for leave to remain asap after you entered the UK

3.the whole issue arose through the HO's error in granting you the initial leave.

It is by no means certain but IMHO it is unlikely that the BFO would refuse you leave to enter. If necessary ask to speak with the Chief BFO.

Keep in mind the risk/possibility that you may not be allowed to enter the UK.

[manci]

this is a difficult situation because:

a) you have a curtailed leave presumably until 2 September BUT a curtailed leave lapses when the migrant leaves the UK, and
b) if you apply for entry clearance with an rCoS the cooling-off period will definitely kick in and you will not be able to return for 12 months.

One possibility is what the solicitor you consulted suggested, i.e. try to sort out the situation in the UK but apart from the £1k fee this is likely to take some time.

You may consider the following RISKY alternative:

Get your sponsor to assign an unrestricted CoS to you on the basis of which you could apply for an extension if you were in the UK. There shouldn't be any problem with the uCoS assuming the sponsor has an available allocation. Then travel to the UK (before 2 September) - even if you don't have a return ticket there shouldn't be any problem with the airline as you have a visa or BRP. At the UK border you may or may not be stopped depending on whether the BFO checks the status of your leave on the system.

If you are stopped you would have to make out a case stating that:

1. you didn't have any notification about the curtailment of your leave before you left the UK and only found out about it by chance afterwards;

2.You now have a new unrestricted CoS and will apply for leave to remain asap after you entered the UK

3.the whole issue arose through the HO's error in granting you the initial leave.

It is by no means certain but IMHO it is unlikely that the BFO would refuse you leave to enter. If necessary ask to speak with the Chief BFO.

Keep in mind the risk/possibility that you may not be allowed to enter the UK.

[Porus]

Hi manci,
Thanks for your kind and lovely help . Risky option is too scary and may not be suitable in our case even though the luggages +books etc left in Uk .Meanwhile the employer has got a response from Home office saying that cooling off applies unfortunately and advised employer not to issue rCoS. Employer is now terminating the employment and waiting for the migrant to join them in a year. I am going with the option solicitor has suggested but i would request your expert view on the below.
1) Appeal to Immigration judge asking for mercy where the mistake is shared a) Migrant applied from India rather than UK b) British High Commission granted the Visa incorrectly. If the British high commission has done their job correctly then the migrant has the chance to reapply without cooling off period with new rCoS from employer.
2) Solicitor says there is only 50% chance of success and it can take 2/3 months .

My question is if there is any humanitarian law which can be invoked where if mistake is shared then the penalty cannot be unilaterally levied on the applicant and hence some leniency can be given?.

[geriatrix]

Why do you think BHC did not do their job correctly? Are you or your solicitor sure that BHCs are privy to the detailed information regarding a CoS (e.g. - whether the 10 digit alphanumeric code refers to a rCoS or uCoS)?

UKV&I seems to put the entire onus of such a mistake (assigning uCoS to a migrant needing rCoS) on to the sponsor.

If you assign an unrestricted CoS to a migrant for a restricted job, we will immediately revoke your sponsor licence.

Who knows which CoS must be created for the propsective employee? The sponsor.
Who creates the CoS? The sponsor.
Who assigns the CoS? The sponsor.

So, unless you or your solicitor know for sure that BHC made an error in granting a visa because they know the difference between rCoS and uCoS, and were aware that the CoS being used for the visa application was uCoS whereas a rCoS was to be used, the blame cannot be pushed on to the BHC.

[Porus]

Thanks Sushdmehta for your valuable inputs. BHC letter to Solicitor through Judicial Review states "Unfortunately the company sponsoring migrant had issued CoS for the migrant's employment incorrectly which was not picked up by the Home Office. At the time of the migrant's application the CoS was not valid. This was missed and the migrant was inadvertently issued visa incorrectly". When the above letter was sent to the employer who requested advice from Home office, the Helpdesk(Homeoffice) stated that
"The CoS will not and indeed cannot be changed. The Sponsor Licensing Unit have notified the Visa Application Centre of their error in granting Migrant's leave. As a result they may allow the migrant's family to apply as dependents". 1 month passed and Refusal letter for dependents state main migrant visa has been curtailed by Home office on the contrary to previous mails from BHC/Home office.

Now employer is stating the CoS was valid (Tier 2 -General -Change of Employment) was given to migrant as migrant was working with the employer with TIer 2 ICT short term dependent visa. The mistake employer is citing is that the migrant went out of country and applied visa rather than in UK after receiving the CoS. Now Home office (business Helpdesk) mail states that cooling off period applies and nothing can be done. Now my query is all along from this forum experts were stating when a migrant with Tier ICT dependent visa was employed in a company and company gives a sponsorship CoS , it would be rCoS where employee goes out of country and apply.
Now what is right and what was the original mistake and by whom ?. I need some expert answers pls.. The damage is for the migrant who suffers cooling off period.

[geriatrix]

Now employer is stating the CoS was valid (Tier 2 -General -Change of Employment) was given to migrant as migrant was working with the employer with TIer 2 ICT short term dependent visa. The mistake employer is citing is that the migrant went out of country and applied visa rather than in UK after receiving the CoS.

Well, the employer is wrong.

AIUI:

A Tier 2 "dependant" cannot switch to Tier 2 (General) and must leave UK to apply for entry clearance as a Tier 2 (General) migrant. Therefore only a rCoS must be issued. The only exception to that is a Tier 4 dependant who is allowed to switch to Tier 2 (General) but still needs a rCoS. See 245HD(b).

The fact that the "dependant" was already employed with the employer doesn't change anything because the immigration rules do not allow a Tier 2 dependant to switch to Tier 2 (General).

The option "Tier 2 (General – Changes of Employment)" is to be selected when an existing Tier 2 migrant moves into a new role / role with change in core duties (new SOC), moves from shortage to non-shortage occupation, or promoted to earn £155300.

The correct option that the employer should have selected for the person in question is "Tier 2 (General – New Hires - Restricted)". The person may not be a "new hire" from HR perspective but is a "new hire" from an immigration perspective (from dependant migrant to principal migrant).

From what you posted, I still do not see how BHC is to blame. They have merely stated that sponsor issued the wrong CoS and unfortunately this was not picked by Home Office in time to prevent the migrant and dependants being issued the entry clearance.

[geriatrix]

As for the "cooling-off" period to be ignored, IMHO, courts are the only recourse because UKV&I will keep on insisting that the sponsor is to blame for not knowing which CoS to select for the employee, that the person was in the UK as a Tier2 migrant within the preceding 12 months and therefore cooling-off period will apply.

[Porus]

Hi Sushdmehta, Thanks for your free legal advice which I was seeking and even my current solicitor was not offering. Even we have email proof requesting employer at the start to give rCoS and in return they gave Changes of Employment and in recent verbal inputs the employer shared that they have consulted Home office while assigning CoE CoS. I suspect employer has some mail evidence where Home office has advised incorrectly of CoE CoS . At the moment , the employer is asking the migrant in India if any Home office letter of curtailment has been received as the employer has not been notified till date in SMS system of curtailment.

As the migrant luggages with Books/personal items/certificates are stuck in UK , can we request the employer not to terminate the employment until curtailment info appears in system SMS and thereby the migrant can return to UK using the earlier booked return ticket and pick up stuff and leave?. I think Manci suggested this risky move where if UKBA refused entry then there is a bar to enter UK ever on the grounds that " migrant entered UK with the prior knowledge of curtailment about to happen". Also please suggest will UKBA system will be updated prior to SMS system of curtailment or will it happen all at once across all IT systems .Please please suggest your advice so that the migrant can request the employer .

[geriatrix]

I am not qualified to give legal advice. What I write is my personal opinion of my (limited) understanding of the immigration rules, published guidance(s) and procedures.

1. If sponsor can prove that Home Office advised uCoS, then things might go in their favor in arguing their case with UKV&I or in a court.

2. Did UKV&I have migrant's current UK address in their records to ensure that the letter of curtailment reached the intended recipient. Most of the times migrants use the excuse of not receiving any such letter when in fact they do not inform UKV&I of address changes. Has Home Office issued a letter of curtailment? If so, when was this and when was it posted? Was migrant in UK around that time?

3. Only someone with knowledge of internal procedures can advise you about how and when Home Office systems and databases are updated (e.g. - a former or current Home Office employee). No one here on the forum can, IMHO, and likewise solicitors wouldn't have such information either.

[Porus]

Oh thanks Sushdmehta, So the answer to who made the original mistake is swinging like pendulum from A) Migrant applied from India rather UK B) Employer issued CoE CoS to non T2migrant/T4dependent c) Home Office advised incorrectly and now if I appeal in the court A) might be proved and hence cooling off applies ? ! . Second, the Home office has not sent a curtailment letter yet to latest address in UK nor they have informed the employer till date. Thanks again

[manci]

The HO made a mistake and they admitted it.

Your sponsor made a mistake and they didn't admit it (unlikely story about wrong advice by the HO but all calls to the employer helpline are recorded and can be back-checked).

You are not blameless either as you didn't check what CoS you got. Judging by your previous posts you were aware that PBS dependents have to apply for T2 entry clearance from home country with a rCoS. Specifically, you have been so advised by Jeeves on May 24, 2014 @ 6:16 pm.:
If you're in the UK as a Tier 2 dependant you will need a Restricted Certificate - these are issued once a month on the 11th (deadline for requests is the 5th).
Is this what your employer has asked for?

Your leave was curtailed on 2 July and you left the UK on 25 July. If the HO had your correct address there is still the unanswered question why you haven't received the curtailment decision letter before you left? Another mistake by the HO? Read about the process they should follow on p101 and p124 onwards:
https://www.gov.uk/government/uploads/s ... 4_0EXT.pdf

Is your solicitor launching the JR to try and overturn the curtailment decision? As s/he said the chances of success are limited. The decision was in accordance with the immigration rules and unless the HO surrender at the pre-action protocol stage it will be a long and expensive process.

There is probably more mileage in exploring what happened with the curtailment letter and if your solicitor can get the HO to admit that they didn't follow the correct procedure, asking them to issue a single-entry visa to enable you to return to the UK before 2 September and apply for a T2 extension with a uCoS.

[Porus]

Hi Manci, Thanks for your detailed advice pulling out my earliest interaction in this forum as well. We had received Changes of Employment CoS document with one specific statement "Does the migrant need to leave and re-enter the UK during the period of approval and (Y) was ticked" . We thought at that time this meant "applying out of country instruction" and now we arent sure what this statement meant. I spoke to the solicitor of your recommendations and he is of the view that Home office will not respond in time and there is no compulsion for them to give single Entry Visa . I insisted solicitor to take up this route anyways as JR for curtailment of main migrant has 3 months timeframe from 2nd July. Also what I can infer from your advice is the original mistake might be employer/Home office/Employee to go with CoE CoS and apply from out of country but the remedial action which you are suggesting is "employer gives uCoS and migrant apply T2G extension from UK" . My solicitor all along has advised the option where employer gives rCoS and migrant leaves the country and apply out of country in addition to that solicitor will argue for "cooling off waiver" . So in the absense of Curtailment letter and what really Home office instruct migrant or employer I will take up the option you have suggested (single entry visa+uCoS T2G application from UK) and if it fails first part or second part then choose JR route for rCoS option if it still was valid .

[Porus]

Hi Manci, Solicitor's caveat as below
"we can petition the Home Office stating that due process has not been followed and the applicant has not been served with curtailment letters, however there is exists no stated remedy that the Home Office will be mandated to grant her the single entry visa in lieu of the same. We would also like to advise you that the Home Office generally states that they aim to respond to complaints within 20 working ways. For the UKVI also they aim to reply within 20 working days, though it could take up to 12 weeks for any investigations.Our professional fees for the same would be 650 pounds and we will continue with JR process (1k pds) work in the background as well." .
Please suggest if HO can be forced to respond within 2nd September through some emergency law invocation which my solicitor is unaware of please?!.

[manci]

the HO cannot be "forced" to do anything, even to abide by the timescales they themselves give for processing complaints or applications. It is more a question of trying to navigate through their labyrinthine systems.

After formulating your case focussing on the HO not following due process w.r.t. the curtailment decision letter as a result of which you are now stuck abroad unable to return (from holiday?) to your job in the UK the following could be tried:

1
contact UKVI in Sheffield directly requesting urgent treatment of the matter in view of the circumstances
by fax: +44 (0) 114 207 5851/2906//5865/5869
and also send the fax by post to:
UKVI
Home Office
P O Box 3468
Sheffield S3 8WA
2
the following "backdoor" could also be tried. There has been a case reported on the forum when the member emailed MAC and they passed the matter to the HO. For what MAC is see:
https://www.gov.uk/government/organisat ... -committee
Their email address is: MAC@homeoffice.gsi.gov.uk
3
at the same time you may also apply to the Chief ECO at the BHC for a single-entry visa explaining the circumstances incl. that you wouldn't have left the UK had you received the curtailment decision letter according to the HO's published procedure.

[Porus]

Hi Manci,
The lawyer is awaiting response from UKVI and Home office on requesting exceptions for the migrant as curtailment process has not been adhered strictly . Second migrant wrote a letter to PM office immediately after reaching India while learning about the curtailment the following mail was received yesterday after 22 days. "DECISION SUMMARY The decision has been made to curtail your leave so that it now expires on 31 August 2015 On 01 September 2014 you were granted leave to enter the United Kingdom until 30 September 2017 as a Tier 2 (General) migrant but this leave was granted on the basis on an unrestricted COS which was issued by xxxxx employer with the expectation that you would submit a visa application from within the UK. As the visa application was submitted outside of the UK this type of unrestricted COS was invalid and your leave should have been refused. Your leave was granted in error. You accordingly no longer meet the requirements of the Immigration Rules under which your leave to enter was granted. It is not considered that the circumstances in your case are such that discretion should be exercised in your favour. The Secretary of State therefore curtails your leave to enter the United Kingdom under paragraph 323(ii) of the Immigration Rules so as to expire on 31 August 2015. Before your current leave to enter or remain expires you must either leave the United Kingdom or submit a fresh application for leave to remain. If you leave the Common Travel Area (the UK, the Channel Islands, the Isle of Man and the Republic of Ireland) your leave to enter or remain will lapse under Article 13(3) of the Immigration (Leave to Enter and Remain) Order 2000 and you may require a visa to enter the UK."
My question is now they are saying Unrestricted Cos to a Tier 2 ICT dependent is valid contradicting immigration rules where rCoS has to be given ?. Here Home office supports the employer saying migrant should have applied from UK using uCoS while her visa at that time was Tier 2 ICT dependent ?.

[geriatrix]

Letter to PM office!!

My question is now they are saying Unrestricted Cos to a Tier 2 ICT dependent is valid contradicting immigration rules where rCoS has to be given ?. Here Home office supports the employer saying migrant should have applied from UK using uCoS while her visa at that time was Tier 2 ICT dependent ?.

The letter states that the expectation was to make an application from within the UK using a uCoS, which is absolutely correct because uCoS can only be used for leave to remain application but the applicant used it for entry clearance. They have not made any reference in the letter to who the applicant was (a PBS dependant, main migrant, Tier 1 migrant, Tier 4 migrant, or someone else) and whether such applicant could have applied for leave from within the UK using a uCoS. That is an inference that you are arriving at, without basis.

And why does your solicitor think that the curtailment process has not been adhered to?

[manci]

And why does your solicitor think that the curtailment process has not been adhered to?

Provided there was no change of address I think the only straw that could be clutched at is this (from my earlier post):

Your leave was curtailed on 2 July and you left the UK on 25 July. If the HO had your correct address there is still the unanswered question why you haven't received the curtailment decision letter before you left? Another mistake by the HO? Read about the process they should follow on p101 and p124 onwards:
https://www.gov.uk/government/uploads/s ... 4_0EXT.pdf

...

[Porus]

Hi Manci, Actually PMO office redirected to HO heldesk who have sent a copy of curtailment letter which was dated 2nd july and 31st august 2015 as the end date which I am wondering why they havent sent in email on 3rd in addition to post if they have indeed sent it at all. Second even if the migrant has not travelled out of country and because of the arrival of curtailment letter before that , the recommendation from the letter is to get an another visa using uCoS in UK . Will HO approve at that time with uCoS contradicting the original rule that migrant shd get rCoS and do entry clearance.

[Porus]

Hi Manci, Please suggest. No body is clearly telling what is the right thing to do . The Home office curtailment letter says " What this means for you. You now have until this date to either make arrangements to leave the United Kingdom or submit an application for further leave to remain. " . So Home office says the migrant can apply for further leave to remain obviously with uCoS issued by an employer. So isnt this contradicting where the curtailed visa also has uCoS and the only issue is that it was approved by Delhi/Home office rather than just HO. Local MP has written a letter again ,MAC has been requested to help , PMO office has been approached for help, Solicitor has sent a complaint letter to Home office and the painful part is SMS system is not updated yet of curtailment and as per property agent , no curtailment letter been received in the UK address. Please suggest.

[manci]

when the HO issued the curtailment letter they weren't aware that you would be leaving the UK during the 60 day curtailment period.

You have lots of people helping you who know the details of your case and have the documents to put forward in support of it - hope that they will achieve a good outcome