Tough case: T2 extension refusal due to wrong SOC code

[chl_9208]

Please help on my case.

I applied for Tier 2 (general) extension of up to 3 years. The application was refused on 10th December and I have got 14 days to do administrative review.

The reason was the wrong SOC code, but this was the tough bit. I used SOC code 1235 for my original Tier 2 application and passed in Nov 2012. The code is invalid in the new SOC list and a conversion table has converted 1235 to 1255 which was used for the extension application coincidentally by my company lawyer. Both me and my company lawyer knew nothing about the new code of practice on SOC codes and NQF levels and presumed that as they passed my application last time they should not fail me this time using the same (similar) code. Unfortunately 1255 is in NQF level 4 and this is why they failed me.

My job title in the company did not change in 3 years and the SOC code we used for original application was more related to the industry I work in rather than the job itself. I am surprised that they failed me for the extension as the original application happened few months after the new SOC codes were implemented (new SOC codes implemented in June 2012 and my application started October 2012).

I looked at some cases here and found people are generally not suggesting an administrative review as the main idea of it is to pick on the case worker's "mistakes". Some of my friends in a law firm suggested me that I should re-apply using a new code and attach a letter from my employer accepting the mistake they have made.

However, in this case I do not think anyone made a mistake: The case worker failed me based on the new SOC code which was rightly converted from the old one and rightly falls in NQF level 4. My employer simply used the converted SOC code for application. I did not change anything on my job.

Can anyone in this forum suggest what I can do? I have got 5 days to make my decision otherwise I will miss my deadline for administrative review. I am not sure if the deadline for a re-application (28 days). Do I risk myself overstay if I re-apply?

Any immediate help is very much appreciated.

[geriatrix]

Read clause 75 onwards in the Tier 2 policy guidance.

[chl_9208]

Read clause 75 onwards in the Tier 2 policy guidance.

Thank you very much sushdmehta!

I have quoted the clause 75 of the Tier 2 policy guidance as below which I believe is relevant. I noticed that this guidance is published in November 2015, but my application was submitted on 20th October 2015 (although the refusal was issued on the 10th December). Do you think I have got a chance to pass the administrative review?

The job does not need to be at NQF 6 level (or the equivalent in Scotland) if you are already
in the UK and were initially granted leave in one of the categories below:
 Tier 2 (General) or Qualifying Work Permit Holder for a job which appeared on the
shortage occupation list at the time of your grant of leave;

[geriatrix]

I noticed that this guidance is published in November 2015, but my application was submitted on 20th October 2015 (although the refusal was issued on the 10th December).

These provisions haven't changed.
The previous version (published 13/04/2015) states the same things.

[chl_9208]

Thank you again sushdmehta!

This is very helpful. I have done a mock administrative review and found the there are several reason codes they ask me to select. I believe the most relevant one is "failed to apply the Secretary of State's relevant published policy and guidance".

I am feeling a bit nervous doing that as it is basically saying they have not red the policy before making a decision. Can you please advise me if the administration review is the right process to go through and the reason code I want to select is correct?

Sincerely appreciate your help!

[geriatrix]

I now realize I missed writing "onwards" in the my initial response. It should have read "clause 75 onwards" .. amended now.
Yes, it is 78 that applies to you since you are extending leave under the same SOC (albeit under 2010 classification) and same sponsor.

Apologies.

[chl_9208]

I now realize I missed writing "onwards" in the my initial response. It should have read "clause 75 onwards" .. amended now.
Yes, it is 78 that applies to you since you are extending leave under the same SOC (albeit under 2010 classification) and same sponsor.

Apologies.

Thank you very much sushdmehta. I just realised that my company do not have an additional CoS and it took them 3 weeks to get one few months ago. I believe the only choice for me is the Administrative Review. I hope the clause 78 will give me a firm ground going through this process.

Would you suggest me going through the Administrative Review and CoS application (through my company) at the same time just in case they refuse the AR again?

[chl_9208]

Hi sushdmehta. I found the code 1235 in SOC 2000 was on NQF 4 and the converted code 1255 in SOC 2010 is on NQF 4 as well.

The clause 78 of the guidance is saying "No points will be awarded for a Certificate of Sponsorship unless the job does not meet the skills threshold solely because of the reclassification from SOC 2000 to SOC 2010". If the NQF level does not change between SOC 2000 and SOC 2010, will this case be treated as "reclassification"?

Thank you.

[geriatrix]

How were you issued leave in November 2012 as a Tier 2 migrant based on a NQF 4 job? If you were issued leave then, you should be able to extend now provided you are going to be paid SOC stated rate of pay.

[chl_9208]

How were you issued leave in November 2012 as a Tier 2 migrant based on a NQF 4 job? If you were issued leave then, you should be able to extend now provided you are going to be paid SOC stated rate of pay.

Hi sushdmehta,

I don't know why they passed me 3 years ago, but they did fail me this time for the extension. Now I'm in the process of administrative review. Fingers crossed. Will let you know if I get the result.

Thanks,
Li

[chl_9208]

Hi all,

My administrative review has been got rejected. But they admitted that they made a mistake 3 years back.

[Ama16]

Hi,

I have a similar situation.

I was granted Tier 2 with code 3543 - NQF 4 in November 2013. I applied for my extension in December and received a refusal letter yesterday.

First my company has made an admin error and assigned the wrong SOC code 3539 with an incorrect salary.
But on my refusal they have mentioned I need to have NQF6 or above to be qualified to apply. I understand my company has made an admin error but I do not understand why they have mentioned about NQF6 when all im doing is extending my visa.

Please help.