Affect on new rules on a case under appeal

[pricesoft]

Hi Guys,

I have got a fairly unique situation where I am currently staying and working in the UK under section 3d as I have an in-country appeal pending for a UKBA Tier 2 refusal decision made back in August last year. I was previously on a Post Study Work Visa. I have been working for my employer for almost 3 years now.

What I would like to know is whether for the case of issuing a COS from the 6th of April, my sponsor can issue an "unrestricted" COS for me. Is there any chance that my application can considered as an 'in-country' application? I'm just so tired about the whole situation and I feel unlucky. Unlike what we now expect to be the case from the 6th of April, my sponsor didn't have the luxury/advantage of an "unrestricted" COS when my in-country Tier 2 application was originally made in July last year.

I appreciate all your help, advice and guide on this guys.

[geriatrix]

Even if you are issued an "unrestricted" CoS by the employer, can you make a new application for leave to remain, while under section 3C leave with an appeal pending? AIUI, this (new application) may not be possible.

This said, could be possible if judge orders UKBA to reconsider the leave to remain application and allows use of a new CoS for reconsideration.


regards

[pricesoft]

Thanks sushdmehta. I also see you have may have moved my post so that it is a new topic.

I agree with you that it could be possible for a judge to order the UKBA to reconsider the application and allow use of a new CoS. Unfortunately in my case (I didn't clarify this in my original post), the tribunal has already heard my case in november last year and they dismissed my appeal, on quite frankly unfair grounds. We are now at the point of deciding whether to apply for permission to appeal to the upper tribunal - which I think we are going to do eventually. The wait for the decision on this will likely take us well into April or even May.

What do you think my options are? If we withdraw the appeal in april and then decide to put in a new tier 2 application like I suggested earlier with an "unrestricted" or even "restricted" CoS, will the validity of my application be subject to discretion being exercised by the UKBA?

The more I explore this, the clearer it becomes that my situation, especially with respect to the new rules is unique and isn't black or white.

Thanks again for the advice.

[VisaFrenzy]

Mike,

Here we go again, the whole situation is more entangled as it is. I really hope it works out for you. I think you know how I recognized you - "the hint is in the username".

It is not black and white at all. My question is

If I was a european (Romanian, Bulgarian or Polish) working in factory and claiming benefits that would have been ok but being a person with skilled (if not high skilled) and paying taxes and not being able to claim benefits than it is not ok. How fair is this??? Can't understand what immigration control is this?

Home Office lumps all IT jobs as one non shortage category; we both know that working in IT in a call centre in Orange is different to Web Applications Development which is highly skilled core specialist skills.

To make matters worse, guess what, hope you are holding on to your seat, I have been denied the visa I applied for as well and leaving UK coming March. I really do hope that restricted COS would work out for you although I am reading literature around it to find out more about it.

PS - if you are not Mike, my bad - you already know who I am.

[wanted66]

Mike,

Here we go again, the whole situation is more entangled as it is. I really hope it works out for you. I think you know how I recognized you - "the hint is in the username".

It is not black and white at all. My question is

If I was a european (Romanian, Bulgarian or Polish) working in factory and claiming benefits that would have been ok but being a person with skilled (if not high skilled) and paying taxes and not being able to claim benefits than it is not ok. How fair is this??? Can't understand what immigration control is this?

Home Office lumps all IT jobs as one non shortage category; we both know that working in IT in a call centre in Orange is different to Web Applications Development which is highly skilled core specialist skills.

To make matters worse, guess what, hope you are holding on to your seat, I have been denied the visa I applied for as well and leaving UK coming March. I really do hope that restricted COS would work out for you although I am reading literature around it to find out more about it.

PS - if you are not Mike, my bad - you already know who I am.

I had a similar question before because most likely I will face the grim reality of being kicked out soon. Lets not forget the fact that lot of people have "ABUSED" the student and work permit path for their own benefits and left us "Skilled people" swimming in the sea without a life jacket.

However I strongly feel its the Home Office and Govts Responsibility to go after these people. UK needs skilled people and a worker from Poland can't deficiently code like me NOT EVEN close..

They clearly know no graduate ever gets paid 40K in his first few years with a company and and yet they set high salary limits. This is done with only one thing is mind and its very CLEAR.

I was raged at some point but I have come to peace with myself as you either fight the system or just leave and hope things workout for you.

I hope things work out for you mate

[VisaFrenzy]

Tier 2 (ICT)
Whilst this category will fall under the ‘unrestricted’ CoS allocations, there are restrictions for qualifying as an ICT migrant. Firstly, jobs must be on the Graduate Occupation list. Secondly, each applicant must have a minimum salary of £24,000 and applicants paid between £24,000 - £40,000 will be granted a maximum duration of one year. They will then be required to leave the UK for a ‘cooling off period’ of one year.

Applicants paid more than £40,000 will be permitted three years on entry clearance and will be permitted to extend for a further two years. Following the full five years, they will also be required to leave the UK for a ‘cooling off period’ of one year. Salaries may include allowances but accommodation remains capped at the current levels.

The most prominent change for this category is that no ICT applicants will be able to switch into Tier 2 (General) from 6 April. This does not apply to ICTs already in the UK before April 6 2011.

Reference - http://hcr.co.uk/?page=BlogandNews&article=128

Scroll to bottom of the page and read for ICT

Folks this has come to light - what do you make of it ??

[wanted66]

Tier 2 (ICT)
Whilst this category will fall under the ‘unrestricted’ CoS allocations, there are restrictions for qualifying as an ICT migrant. Firstly, jobs must be on the Graduate Occupation list. Secondly, each applicant must have a minimum salary of £24,000 and applicants paid between £24,000 - £40,000 will be granted a maximum duration of one year. They will then be required to leave the UK for a ‘cooling off period’ of one year.

Applicants paid more than £40,000 will be permitted three years on entry clearance and will be permitted to extend for a further two years. Following the full five years, they will also be required to leave the UK for a ‘cooling off period’ of one year. Salaries may include allowances but accommodation remains capped at the current levels.

The most prominent change for this category is that no ICT applicants will be able to switch into Tier 2 (General) from 6 April. This does not apply to ICTs already in the UK before April 6 2011.

Reference - http://hcr.co.uk/?page=BlogandNews&article=128

Scroll to bottom of the page and read for ICT

Folks this has come to light - what do you make of it ??

How reliable is this source mate ?

Ill be gutted if this is true. Anyway its better to wait for the official confirmation.

[VisaFrenzy]

Hi,

Thanks for replying. You are right nothing can be trusted at the moment, I think it is best to wait for further updates. Mate, can I honestly recommend you something. Get a immigration lawyer and discuss with them. It doesnot cost much either for a basic consultation. At least it is better than finding out information on your own which might not be correct.

Hope you agree.

PS- that information I found when doing a web search.

[geriatrix]

If we withdraw the appeal in april and then decide to put in a new tier 2 application like I suggested earlier with an "unrestricted" or even "restricted" CoS, will the validity of my application be subject to discretion being exercised by the UKBA?

AIUI, the date you withdraw your appeal, you are an overstayer in the UK and any out-of-time application for leave to remain will be considered only at UKBA's discretion. If UKBA decides not to accept your application because it is out-of-time, you not only lose the application fees but also prolong your "overstayer" status thereby making any future EC applications possibly subject to refusal under 320(7B).

But if you withdraw the appeal and exit UK (your solicitor can withdraw the appeal on the day you leave UK, thereby preventing you to become an overstayer) and if your employer is then able to get a "restrcited" CoS for you, the EC application will not be subject to UKBA discretion. It will be assessed as a "normal" application. But you'll need to include clear explanation and details of your refusal, subsequent appeal(s) and date of exit from UK to ensure that the caseworker / ECO understands that you were never an overstayer in the UK.

Hope this helps.


regards