Tier 2 Rejected on Failing to meet appropriate Salary

[Makareena1]

Hi there,

My application for leave to remain as a Tier 2 Migrant was declined this morning. I have been granted right of appeal.

My application fell short of 20 points after failing to meet to the appropriate salary requirements as per the occupation code specified on my Certificate of Sponsorship (occupation code 2423). I do believe this is the most appropriate occupation code for my role. However my CoS and application stated that I work a 40 hour work week, whereby my hourly rate is below their required minimum rate. If we calculate my hourly rate based on a 37.5 hour work week, my hourly ratemeets their minimum requirement of £15.20 per hour.

I was initially on a Tier 1 Post Study Work Visa has now expired.

I have been advised to ask my employer to contractually reduce hours of work to 37.5 hours a week and re apply on that basis as the above does not warrant an appeal.

Can I re-apply even though my current Visa has expired? How soon do I have to make this fresh application as my Employer will have to apply for a new CoS to assign to me.

[Lucapooka]

Can I re-apply even though my current Visa has expired? How soon do I have to make this fresh application as my Employer will have to apply for a new CoS to assign to me.

A matter of debate due to paragraph 78C

78C. In order for the applicant to be awarded points for post-study work:
(a) the applicant must be applying for leave to remain,
(b) the applicant must:
(i) have current entry clearance, leave to enter or leave to remain which has not expired, as:
(1) a Tier 1 (Post-Study Work) Migrant,

http://www.ukba.homeoffice.gov.uk/polic ... appendixa/

[Greenie]

it's not that you can't successfully reapply, but rather that you cannot claim points for switching from PSW if your leave has now expired. You will have to claim points in another way, for example, your employer will need to undertake the RLMT.

[AB1732]

if you have been given the right to appeal, you should appeal. Once this is done you come under Section 3 (c) of Immigration act of 1971, which means you will retain the PSW status.
Then make a fresh application with the new COS.
Make sure you hire a solicitor for this and do it before 14 june when rules will be getting more stringent with only NQF 6 or above eligible

[vinny]

Note that you cannot make a fresh in-country application while appealing.

[Makareena1]

Thank you for the advice.

After speaking to a lawyer, I understand that even if I were to submit a fresh application there are two catches:

1. (As already mentioned) I cannot claim to be switching from a PSW as that visa is no longer valid

2. As my PSW visa is now expired, I do not have a legal right to work in the country while the new application is being processed.

The only option left is to appeal.

Noting two cases from the summer of last year Owolabi and R (Alvi) http://www.ergensharif.co.uk/Tier2caselaw.aspx the Court overturned the refusal of their visas as the Codes of Practice had no legal bearing (Pankina 2010).

I need to look into this more, but I wonder if that is still the case.

Also, seeing as I fell short of the minimum hourly rate by 0.78 p which roughly equates to £1600 per annum, I'm hoping the court will factor in the proportion of the discrepancy.

My employer has agreed to increase my annual salary to meet the minimum hourly rate, but given the recent legislation which prohibits the introduction of new evidence, I am not sure if this will actually be of help to my case at this stage.

I need to instruct a lawyer as soon as possible to help me build a strong case of appeal. I would really appreciate any recommendations.

[Makareena1]

After thinking about it more, perhaps submitting a fresh application with an increased salary that meets the minimum hourly rate would be the best way forward.

Although I can no longer claim points for switching from the Post Study Work Visa, I have been employed with the company for over six months thereby passing the labor market test.

I could either apply from my home country while working remotely for my employer. (This is a big maybe as I don't know how thrilled they would be at this prospect).

Or I could try to apply via the premium service, if I can secure an appointment with the UKBA. I believe some immigration law firms bulk book these appointments. Would any one know whom I need to contact for this?

[Greenie]

You don't pass the RLMT due to having worked for the employer for more than 6 months.

[Makareena1]

Thank you. I guess that leaves me with the option to appeal or submit a fresh Tier 2 application from my home country after my employer has passed the Resident Labour Market Test by advertising the role for 28 days.

My only hesitation with the appeal is that even though my employer has agreed to increase my salary to meet the minimum requirement, this may not be considered by the judge as it is 'new evidence'.

It seems like a shot in the dark.

I think my best bet would be the former- as there have been previous cases mentioned in this forum that seem to have had success with this route.

[Makareena1]

I was wondering, if I were to submit a new application (either via an out of date switch from psw or a new application from my home country after passing the RMLT) how do I obtain a new CoS?

On the sponsor management system the status of my particular CoS is 'used'.

However in the the Sponsor Management System the Sponsor Profile page says they still have one CoS to remaining which they can use before April 2013. (They originally had an allocation of 1 certificate which appears to remain unchanged).

Am I correct to assume that because my application was declined (and my CoS was used) the company is still free to create and assign new Certificate of Sponsorship to me based on the original allocation?

[manci]

From the Tier 2 sponsor guidance, paragraph 168:
When a CoS has been used to support an application for leave and that application is her granted or refused, it cannot be used again.

Probably the CoS which was used for your application came out of last year's allocation, i.e. it was requested before 6 April 2012.

[manci]

corrected quote:

168
When a CoS has been used to support an application for leave and that application is either granted or refused, it cannot be used again.