Appeal or fresh application, after Tier 2 was rejected

[peg1980]

Hi
I am looking for any valuable advice. Thank you in advanced.

My situation is from PSW to Tier2 General
PSW expired at 1 Dec 2011
Made an application on 21 Oct 2011
Received all the document back on 30 Dec 2011

The reason for rejection are: English skills and salary.
In English, I submitted notarised copy and original English translation. However, they insist on Original certification, so they cannot give me points.
In Salary, the calculation from our HR was different from UKBA. Therefore, my salary is lower than their standard.
My company increased my salary after 6 months review on 1 Dec. Now my salary is higher than their standard, but it was 1 Dec.

I submitted my appeal on 30 Dec 2011 and ask for oral hearing. I have no problem to provide any document they want now, either on English skills or salary. However, I feel little hope only.

Because my current visa already expired, my question are:
1. Can I submit fresh application again?
2. If yes, how can I explain my situation?
3. If yes, should I withdraw my appeal application?

Much appreciate if you give me some advice.

[arsenal49]

its unlikely your appeal will be allowed.

i think you get 28 day grace period to pack up your things after rejection. so in your case from 30 dec onwards (wait for confirmation from other senior members on it cuz your case is a bit complicated since your leave expired on 1 december)

make sure you get proper english language evidence this time around.

withdraw your appeal and submit new app on the same day.

include evidence of you withdrawing appeal in your app too.

im not a lawyer but thats what i would do if i was in your shoes.

PS. you dont need to wait to get english language evidence straight away as you can always submit it via change of circumstances later on. Important thing is to submit another app ASAP

[peg1980]

Thank you so much for the advice, arsenal49

Can I ask the original resources for 28 day grace period? I could not find this rule in any tier 2 guideline.

Although I received my document back at 30 Dec, their decision date was 21 Dec. So how to count the date for 28 day grace period?

In the rejection letter, submit the new application is another option, However, they also mention " in all cases an application should be made before your current leave expires". My PSW expired on 1 Dec 2011 and how I submit the new one??

Thank you so much for answering.

[arsenal49]

28 day period is specified somewhere in general immigration laws as opposed to tier 2 specific rules.

search on this forum for a reference as there are countless thread on it, over here.

i dont know for sure if 28 day period is applicable from the date you were notified of their decision or the date your original leave expired- something for you to research on.

i would imagine that they mention this 28 day period on your rejection letter. dont they?

you are technically still an overstayer during these 28 days but there is no penalty for that. after 28 days, you will get an automatic 1 year ban on all future apps

[peg1980]

Thank you again, arsenal49.

There is no '28 days period' on my rejection letter. That is why I am so confused about this.

I received the document on 30 Dec 2011 and submitted my appeal in the same day. Under section 82(1) of the Nationality, Immigration and Asylum Act 2002, my previous leave and the terms and conditions will be extended, by virtue of section 3C of the immigration Act (as amended) until such a time as the appeal is resolved.

I would say it is a very GREY area for my status now.

As I mentioned the another option is to make new application, they wrote:
"Please note that there is no administrative review available for an in-country application under the points based system. If you are not entitled to a statutory right of appeal, you may wish to submit a fresh application with new or additional information not included in the application that is the subject of this decision....in all cases an application should be made before your current leave expires"

But they gave me the right to appeal.....So do I have right to make a new application and skip/withdraw the appeal?

Some people said in this forum on making a new application, It is not possible to make a new one again, unless you apply outside of the UK. But the application will become 'restricted'COS which my job does not qualify for this.

It is very stressful. I do appreciate for any response. Thank you

[arsenal49]

trust me, 28 day period EXISTS and lots of people take advantage of that.

you are given appeal rights because you made an in-time application last time around.

if you make out-of-time app, and your app is rjected, then you will not get appeal rights.

they are bound by the law to give proper consideration to your new app as long as you have not overstayed for more than 28 days.

the main issue is, if your app is refused again....its likely that you will have lived in the country for more than 28 days which means you will attract 1 year ban!

[peg1980]

arsenal49, I have no doubt for anything you said and much appreciate for your helps.

I just very confused what I can do in this stage. From my rejection letter, I cannot make a new application if my current visa expired . In the meanwhile, I cannot find any rules to re-submit new application in this 28 days. Therefore, my employer just want to stick on appeal and wait for the outcome.

I cannot image that if the outcome is negative and also I run out the 28 days grace period, what I suppose to do??!! very stressful!!!!

Life will be easier if they can make their rules/laws a wee clear.

[sidj]

Hi,

Did you manage to resolve this? Could you please let me know if you were allowed to submit a new application? Also, were you considered to be on a PSW in this new app (give that your leave to remain had expired)

Thanks!

[peg1980]

Hi sidj
I phoned UKBA directly today. In my case, they said I cannot make fresh application because I've submitted the appeal. In somehow, I feel they are just tried to scare me by putting lots of rules.

I am not sure your case, perhaps you would like to phone them directly. Let me know how you are going.

[sidj]

Thank you very much for your reply.

When will you know about the outcome of your appeal? Are we allowed to give additional information in the appeal? Basically, my employer entered the wrong job code in the CoS, hence my application got rejected on the basis of a lower salary. But my salary is fine if they had entered the right job code.

Now, can I appeal saying that we entered wrong information. Will they even consider that?

Also, if I don't appeal, am I allowed to make a fresh application? My PSW has already expired. On that fresh application, will they consider me to be on a PSW?

[arsenal49]

you CANT have an outstanding appeal as well as an outstanding application.

you, an applicant, CHOOSE to either appeal...or submit new app!

[arsenal49]

during appeal, judge would try to establish circumstances in which app was rejected.

if (s)he thinks its ukba fault, i.e. they didnt follow rules etc., they will over turn their decision.

but how can you expect ukba to take blame for the mistake that your employer committed? So, if ukba is not responsible for the mistake, well, your appeal is likely to be rejected...

[sidj]

Dear arsenal49,

If you read Part 10 of this document: http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

It says the following:
10. ALTERED OR ADDITIONAL GROUNDS OF APPEAL
An appellant may add to, or amend the grounds of the appeal up to the time that it is heard by the Tribunal. This is an essential part of the one stop appeal process.
Section 86 (2) (a) of the 2002 Act requires the Tribunal to consider any matter raised as a ground of appeal. (See Appeals Directorate operational guidance on the one stop appeal for detailed advice on the position when further grounds are made during the passage of an appeal.)

According to this, we should be able to present new evidence at the appeal. Hence, the question of who made a mistake doesn't even arise. What do you think?

[peg1980]

Hi sidj

For appeal application, you must put the reasons and New evidence for your argument. I suggest that you should have cover letter for your appeal.
I submitted the appeal application on 30 Dec and gave them a call at 4 jan, to make sure they got my document. They did not tell me how long I need to wait. Here is the link for appeal process: http://www.justice.gov.uk/downloads/gui ... pt2010.pdf

Hi arsenal49
You are right. You cannot have both appeal and submit new app. As i phoned UKBA directly today and he told me that once i made appeal, I cannot make new application. But there is no clear regulation and it is just another grey area.

All I am worry now is what I can do if my outcome of appeal is negative? Can I still have chance to do new app? Or just give up...

[sidj]

Hi peg1980,

what were your grounds for an appeal?

Thanks,
Sidj

[peg1980]

Hi sidj
What do you mean?

[arsenal49]

hearing date will be like couple of months away!

its a long drawn system.

what you need to do is find out what is your current status legally. make a note of the specific clause under which you are covered.

my concern is...in the event of unsuccessful appeal, what would be your current period classified as? if its under an 'overstayer' category then you will have lived more than 28 days; this triggers 1 year automatic ban.

im just another guy who takes interest in these things so dont take my word for a gospel as i am not a lawyer.

i am putting myself in your shoes and this is one of my main concern!

would love to know the answer myself....

[sidj]

Hi,

As per section 3C you will not be an overstayer.

Sidj

[sidj]

peg1980,

What exactly did you say in your appeal? How did you frame it?

Also, did you opt for an oral hearing, or a paper appeal?

Thanks,
Sidj

[Greenie]

Dear arsenal49,

If you read Part 10 of this document: http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

It says the following:
10. ALTERED OR ADDITIONAL GROUNDS OF APPEAL
An appellant may add to, or amend the grounds of the appeal up to the time that it is heard by the Tribunal. This is an essential part of the one stop appeal process.
Section 86 (2) (a) of the 2002 Act requires the Tribunal to consider any matter raised as a ground of appeal. (See Appeals Directorate operational guidance on the one stop appeal for detailed advice on the position when further grounds are made during the passage of an appeal.)

According to this, we should be able to present new evidence at the appeal. Hence, the question of who made a mistake doesn't even arise. What do you think?

No it doesn't - not for PBS appeals. The evidence you can submit in a PBS appeal is restricted - you cannot generally submit new evidence/information that was not submitted with the original application if it relates to the acquisition of points - in other words - if your employer submitted the wrong SoC, you can't submit the right SoC in your appeal. See Section Section 85A and unnecessary appeals to end

I think you are getting yourself into a bit of a mess here trying to interpret law and misunderstanding it. I would suggest you seek advice from an immigration solicitor before you make further mistakes.

[Greenie]

hearing date will be like couple of months away!

its a long drawn system.

what you need to do is find out what is your current status legally. make a note of the specific clause under which you are covered.

my concern is...in the event of unsuccessful appeal, what would be your current period classified as? if its under an 'overstayer' category then you will have lived more than 28 days; this triggers 1 year automatic ban.

im just another guy who takes interest in these things so dont take my word for a gospel as i am not a lawyer.

i am putting myself in your shoes and this is one of my main concern!

would love to know the answer myself....

A person who appeals after making an in time application is protected by Section 3C until appeal rights are exhausted. Arsenal- best not to speculate as it just causes panic.

[sidj]

Thanks Greenie. Any recommendations on which solicitor to contact?

[Greenie]

what area of the country do you live in?

[sidj]

I am in London. I have until Monday to appeal.

Thanks!

[Greenie]

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