Tier 1 Exceptional Talent Stage 2 Refusal

[anrg]

Hi there,

I had recently applied for my stage 2 main visa which has got refused.

Background: I am currently in the UK as a Tier 2 ICT Partner and had applied and received my Stage 1 Endorsement from Tech Nation. I had then checked whether I can apply from within the UK to switch from Tier 2 ICT Partner to Tier 1 Exceptional and had got conflicting answers from Immigration Lawyers. I wrote to the Tier 1 home office support email and they confirmed that I can apply to switch from within the UK. Basis this I made my Stage 2 application from within the UK.

I have just received a Refusal but really confused on the reasoning.

Issue 1:
Part 1 of refusal email states that I am required to have 75 points under Appendix A (Attributes) and goes on to say you have been awarded 0 points. However the 75 points is for the Endorsement Letter which I had got and attached. I have an option to submit a Administrative Review but it says you cannot attach any new documents. Now, when we had our Biometric the agent said that I had uploaded my Endorsement Letter under the wrong heading and had said that she has changed it to the correct one. I am wondering whether some error occurred and the document did not get attached.

Question1: In this case how do I submit the Endorsement Letter again if the administrative Review guideline states that you cannot attach documents with the Review?

Issue 2:
In latter part of the email it details some requirements and seems to state another reason for refusal. But this is not clear whether it is the reason related to Issue 1 above of 0 points or states that one cannot apply from within the UK to switch from Tier 2 ICT dependent to Tier 1 Exceptional Talent. Exact wording provided below:

"To qualify for leave to remain as a Tier 1 (Exceptional Talent) Migrant, an applicant must meet the requirements listed below. If the applicant meets these requirements, leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
(a)The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
(b)The applicant must have a minimum of 75 points under paragraphs 1 to 6 of Appendix A.
(c)The applicant must have, or have last been granted, entry clearance, leave to enter or remain as:
(i) a Tier 1 Migrant,
(ii) a Tier 2 Migrant,
(iii) as a Tier 5 (Temporary Worker) Migrant, sponsored in the Government Authorised Exchange sub-category in an exchange scheme for sponsored researchers, or
(iv) a Start-up migrant, or
(v) an Innovator.
(d)The applicant must not be in the UK in breach of immigration laws except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded.

You have been refused as you are not able to switch from your current leave which is ‘TIER 2 ICT Long Term Staff Partner – LTE’ to Tier 1 Exceptional Talent Migrant as clearly stated in the above Immigration Rules."

Question 2: Suppose I send a Admin Review and despite clarifications it is still refused. Can I apply for the stage 2 again via fresh application?

Question 3: Does anyone have first hand experience of whether one can apply from within the UK from Tier 2 ICT dependent to Tier 1 Exceptional Talent? And if applying from outside the UK will I need to apply to Switch or as a new Visa?

Thank you!

[CR001]

You cannot apply within the UK. You must apply from your home country. The UKVI website clearly states the categories that can switch within the UK, Tier 2 dependent is NOT one of them. The 'Tier 2' below, refers ONLY to Tier 2 main visa holders and not dependants.

https://www.gov.uk/tier-1-exceptional-t ... -this-visa

Switch to this visa
You can apply to switch to a Tier 1 (Exceptional Talent) visa if you’re already in the UK with any of these visa types:

Tier 1
Tier 2
Tier 5 (Temporary worker - Government Authorised Exchange) on an exchange scheme for sponsored researchers
You can choose how long you want to apply for, up to a maximum of 5 years. You only have to pay the healthcare surcharge for the amount of time you choose to stay.

You must leave the UK and make your application from abroad if you’re in another category.

Q1. Admin review will fails as it is you that made the error and not HO.

Q2. Yes you can apply again, from your home country.

Q3. You can't, as clearly stated in the rules. SWITCH applies ONLY to applications within the UK. From home country, you are applying for a NEW entry clearance visa.

[anrg]

Thank you for such a quick reply. Appreciate it.

Regarding this point in your reply "Q1. Admin review will fails as it is you that made the error and not HO." - The error you are referring to is not attaching the document or that I have applied from within the UK instead of applying for a new visa?
However as stated I had asked, and received, an explicit confirmation from Home Office support that I can apply from within the UK.

New Question:
If I have to apply from outside the UK is it advisable that I first apply only for myself? Or is it advisable that we apply as a family (my wife is the Tier 2 ICT holder + children who are dependent)? We have lot of time left on our ICT so there is no urgency for rest of family.

[CR001]

Regarding this point in your reply "Q1. Admin review will fails as it is you that made the error and not HO." - The error you are referring to is not attaching the document or that I have applied from within the UK instead of applying for a new visa?
However as stated I had asked, and received, an explicit confirmation from Home Office support that I can apply from within the UK.

Your error in terms of applying within the UK. Depends on what exactly you asked and how you phrased it and how clear your query was stating your circumstances. However, the immigration rules are clear on this point anyway and are freely available online.

New Question:
If I have to apply from outside the UK is it advisable that I first apply only for myself? Or is it advisable that we apply as a family (my wife is the Tier 2 ICT holder + children who are dependent)? We have lot of time left on our ICT so there is no urgency for rest of family.

It makes no difference how you choose to do. Your dependants CAN switch within the UK.

[anrg]

Noted. Thanks again. This was very helpful.

Just for info this is the email I received verbatim: "Dear xxxx, Thank you for your e-mail. As a dependant of an applicant who has T2 status you are able to switch to Exceptional talent route whilst remaining in the UK. Kind regards"

[reddyprashantha]

Hello anrg,

Please could you let me know which evidence did you produce for the "contribution outside your immediate occupation" during Stage 1 endorsement ?

Regards,

[anrg]

Just to update this thread. I went to my home country to apply and was successful in getting the visa. However, during the process there were few things that came up where I felt I could have applied for a Review. So if someone has time I would advise to review the decision and then if that doesn't work apply from outside the UK.