Tier 2 Rejected Due to Appropriate Salary points not awarded

[rubzye]

Hi,

Please may I get some urgent advice.

Currently I have PSW visa that has expired on the 23rd December and yesterday I just received my refusal of leave to remain in the UK letter and I am thinking of either appealing or sending a fresh application. The reason for my refusal is because I did not meet the appropriate salary points although I have 20k and its because under COS my company has chosen my job as Finance Analyst but actually I am suppose to be Accountant. I am not sure what should I do, can I appeal under this circumstances? If I am to reapply for a fresh application, can I still be in the UK and do that as currently my visa has expired???

Please help!!

[arsenal49]

20k is a minimum requirement...

you ought to satisfy appropriate salary requirement for the job title, as given in code of practice.

its NOT ukba fault, that your employer made a mistake in choosing incorrect job title

you have 28 days to make a new app, as an overstayer, but if refused again, you will not get any appeal rights

i personally dont see you winning appeal as i dont think you have valid grounds to appeal on AND ukba decided your app based on what was put in your app

[rubzye]

thank you very much arsenal 49, i shall reapply.. because the minimum salary for my job is suppose to be 17000 as per the guidance if my company had chosen accoutant... so i definitely have qualified, but i will let my company to redo the cos and ensuring that they choose the right job... thank you again... really appreciate your help on this..

[arsenal49]

do u know the soc code for accountant? as per code of practice?

[rubzye]

yeap.. its 2421 Accountant and I am only ACCA Part 2 Qualified

[rubzye]

hi arsenal 49, may i ask where can i find where it states that I am able to apply for the new application within 28days in the ukba... i have been trying to find that document but so far no success.. its just that i would like to show that to my employer..

[peg1980]

Hi rubzye
I have similar situation as yours.
The only different is my COS is correct but different calculation from UKBAs'.
Our company calculated as monthly but UKBA asked weekly. ....

In my rejection letter, they gave me the right of appeal against their decision and also make a new application. However, in all cases an application should be made before your current leave expires.

Because of my PSW already expired at 1 Dec 2011, I just go for appeal. I could not find any rules about ' 28 days grace period' for re-submit the fresh application.

Do you figure out how you are going to do? It will be appreciate if you can provide your valuable advice.

[rubzye]

hi peg1980, me too could not find anywhere that states the 28 days grace period, therefore I am going to call the UKBA directly and ask them what would i be able to do at this point and if i could re send my application although my visa has expired..

i will let you know tomorrow of what i hear from UKBA and what are the next steps..

[sidj]

Hi there,

Did you manage to resolve this issue? I am in the same situation and can't seem to figure out if I am allowed to submit a fresh application. If I can, will I still be considered to be on my PSW, even though it's last date has passed?

Thanks much!

[peg1980]

Hi rubzye..Any news? Did you submit the appeal or still waiting for decision?


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.

[rubzye]

hi peg1980,

my company and i have come to a decision of making a fresh application as although i have a right to appeal, i dont think i can win as the error was mine.. so i will be sending a fresh application..
i tried calling ukba 3 times today and everytime i get a different answer as to applying a fresh application when my current leave has expired... i am just going to give it a try... if it gets rejected... well.. i really dont know what to say... their rules are so strict and so complicated in one site it says certain things and the other it doesnt really say much.. i spent almost all day trying to talk to my hr and my manager and ukba and visa advice private companies and private companies say that you can make a fresh application but have to do so as soon as possible.. and when i call ukba... 2 of them said that i can make fresh application.. so... i guess that is the best option... well let you guys know how it goes in terms of the result of the app... probably will take more than a month for them to get back...

[sidj]

Thanks for the reply. I am in exactly the same position.
But, if you read this document: http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

it seems to suggest that we are not allowed to make a fresh application.

[rubzye]

hi sidj, after reading that link you sent... i am sort of unsure as well... but i think i am going to see if my company can apply for a COS... and will go from there...

[Greenie]

the document linked to above only states that you cannot make another application whilst your leave is extended by virtue of section 3C of the Immigration Act 1971. (i.e. when you have submitted an in time application, your are awaiting a decision, and your original leave has now expired, or, when you still have a pending appeal).

There rules on Tier 2 leave to remain do not require that one has current leave in order to make a successful application, and thus, if you score the points, the fact that you are applying as an overstayer, should not result in a refusal for that reason alone, however, you still need to have last had leave in one of the relevent categories permitting you to switch into tier 2 (e.g. PSW). See 245HD. Requirements for leave to remain

"b) The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain:

(i) as a Tier 1 Migrant,

(ii) as a Tier 2 (General) Migrant...." etc

[rubzye]

hi greenie,
under the link you have given, it states that one of the requirement is...

"(a) The applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant."

however... being refused due to choosing an incorrect code under COS seems to be a general ground of refusal...

i wonder if anyone have been in my shoes and applied for fresh app and would like to know the result... was their application processed correctly and given serious consideration? rather than refusing it... because the only mistake is i have chosen the wrong occupation code under COS...

[sidj]

Thanks very much Greenie! That was very helpful.

Please correct me if I am wrong here - if I now send a new application, I will neither be under Section 3C, nor under 3D. Hence I will be allowed to send in a new application. Is that correct? Also, to be sure that I neither under 3D, nor under 3C, will I have to wait till my right to appeal has expired?

Also, how much am I allowed to overstay? If my new application is also rejected, what happens then?

Lastly, if I do decide to appeal, am I allowed to present new evidence? Basically, my employer has both agreed to increase my salary to match and admit that the wrong job code was entered in the first place.

What would you suggest I do?

[sidj]

Rubzye,

If you look at this: http://www.ukba.homeoffice.gov.uk/polic ... les/part9/

The general grounds for refusal state that you will be refused if you have overstayed only by 28 days or more. (read 7B)

[sidj]

Greenie,

Sorry, but I have a couple more questions:

1. If I make an appeal now, will I still have the option to send in a fresh application upon its refusal? This should logically follow from the link you just sent. Even after an unsuccessful appeal, I should satisfy all requirements for a Tier 2 migrant.

2. This is assuming that "Overstaying" is counted from the time Both Section 3C and 3D stop applying. (i.e. even though my PSW expired on 11 Nov 2011, I will start ovestaying only after Jan 14 once I do not have the right to appeal).

Do you agree?

[Greenie]

Rubzye,

If you look at this: http://www.ukba.homeoffice.gov.uk/polic ... les/part9/

The general grounds for refusal state that you will be refused if you have overstayed only by 28 days or more. (read 7B)

You are referring to the general grounds of refusal for entry clearance and leave to enter. These do not apply in applications for leave to remain. See para 322 onwards for general grounds for refusal for leave to remain applications.

[rubzye]

hi greenie, does this mean that you can definitely apply for the fresh application as long as you qualify for all the requirements to achieve the points?

[sidj]

Hi Rubzye,

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

"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.) "

As per this, you should be able to present additional info at the appeal. Hence, you can now show that your job code has changed.

[sidj]

.

[arsenal49]

Hi Rubzye,

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

"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.) "

As per this, you should be able to present additional info at the appeal. Hence, you can now show that your job code has changed.

in your appeal you are trying to prove that UKBA did something wrong with original decision...

by supplying them with new COS.. you are implying you accept UKBA original decision and now making amends by supplying new COS.. except 'appeal' route wont help as its not appropriate route to go by; you ought to submit new app with new COS!

[rubzye]

Hi Rubzye,

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

"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.) "

As per this, you should be able to present additional info at the appeal. Hence, you can now show that your job code has changed.

that means that you can add additional information for an appeal that is already in place...

[rubzye]

hi arsenal, when i make fresh app.. can i make this in-person rather than by post... and in-person.. does that mean that i will get the result of the visa quicker?

sorry.. i found the answer in ukba website...