Court hearings and appeal - Tier 2

SimiP · Post by **SimiP** » Mon Apr 08, 2013 1:32 pm

Hi Guys,

Has anyone yet been for the Court Hearing?? If so, could please share your experience and provide guidance to me and others too.

It will be gr8 if anyone if you can help me in preparing for court hearing. I am just managing things on my own as I cannot afford a solicitor.

Post by **manci** » Wed Apr 10, 2013 9:32 pm

SimiP wrote: applied for Tier 2 visa in dec which got rejected due to inappropriate salary condition. I have made an appeal and the hearing is on 10th May 2013. Also my visa expired in dec 2013.

i have the following questions
1. Can i still re-apply??
2. My job title is "junior Software Test Engineer" which closely matches to "Test Analyst" with sal of 28K but i do not perform all the duties of Test analyst. My employer says we will place our appeal on this basis. Will this help?? Also my hrs are 40hrs which is true for me.
3. My employer ready to increase my sal as per the requirements?? If I have a new SOC with correct sal, should I take this to court. Note: I did not submit this with the appeal form.
4. Also, my company doesnt have knowledge of this since they are doing this for the first time and that too for me...I dnt want to go back to my home country. Is there any option that will help me to get my visa??
5. If I can submit a new application, does my company need to do RLMT?? If so, how long will this take??

I have emailed my case worker saying all this but havent heard anything yet. I have now asked my employer to do this as well. I will send all the docs tomorrow by post to my case worker.

1
you could only have re-applied within the 28 days period following the refusal which has now presumably passed.
2
there are new SOC codes and min salaries since 6 April. Also the standard working week to which the min salaries relate has different working hours
http://www.ukba.homeoffice.gov.uk/sitec ... orkers.pdf
You should use the SOC code which best matches the job description rather than the job title
3, 4
the appeal is decided on the facts as they were at the time of the refusal and new evidence cannot be introduced, so the chances of the appeal succeeding are not good. A new CoS may strengthen your case.
5
see 1 above

If the appeal fails you have to leave the UK but can apply for entry clearance from abroad with a new restricted CoS which will require RLMT (unless you are in one of the shortage occupations). If your previous leave was T1 PSW the cooling-off period will not apply

SimiP · Post by **SimiP** » Thu Apr 11, 2013 8:26 am

Thanks for your reply!!!

If I use new SOC code, will I be considered as New entrant?? I am switching from PSW to Tier 2 and above 25yrs, working with my company for 2yrs.

Post by **manci** » Thu Apr 11, 2013 8:39 am

SimiP wrote:Thanks for your reply!!!

If I use new SOC code, will I be considered as New entrant?? I am switching from PSW to Tier 2 and above 25yrs, working with my company for 2yrs.

as you are switching from T1 PSW you will be considered a new entrant.

SimiP · Post by **SimiP** » Thu Apr 11, 2013 8:53 am

Thanks a lot!!!!

Also, my company's annual allocation for CoS has expired. Should I ask them to request for this for my case??? How long will this take???

As my visa already expired in dec 2012, I wasn't given the right to submit a new application. Can a new CoS with correct details help me make my case stronger in the court???

I think this will be considered as a new evidence and will they consider it??? Me and my employer are completely new to the system and also they just got the license for me. Please advice and help me to get things in my favour...

Thanks

Post by **manci** » Thu Apr 11, 2013 9:52 am

SimiP wrote:Thanks a lot!!!!

Also, my company's annual allocation for CoS has expired. Should I ask them to request for this for my case??? How long will this take??? They must have an allocation for 2013/14 in order to assign a CoS to you. If they don't yet have one ask them to request one through the SMS asap.
As my visa already expired in dec 2012, I wasn't given the right to submit a new application. Can a new CoS with correct details help me make my case stronger in the court??? it mayI think this will be considered as a new evidence and will they consider it??? Me and my employer are completely new to the system and also they just got the license for me. Please advice and help me to get things in my favour...

Thanks

ncisgreat · Post by **ncisgreat** » Thu Apr 11, 2013 4:47 pm

manci wrote:
SimiP wrote: applied for Tier 2 visa in dec which got rejected due to inappropriate salary condition. I have made an appeal and the hearing is on 10th May 2013. Also my visa expired in dec 2013.

i have the following questions
1. Can i still re-apply??
2. My job title is "junior Software Test Engineer" which closely matches to "Test Analyst" with sal of 28K but i do not perform all the duties of Test analyst. My employer says we will place our appeal on this basis. Will this help?? Also my hrs are 40hrs which is true for me.
3. My employer ready to increase my sal as per the requirements?? If I have a new SOC with correct sal, should I take this to court. Note: I did not submit this with the appeal form.
4. Also, my company doesnt have knowledge of this since they are doing this for the first time and that too for me...I dnt want to go back to my home country. Is there any option that will help me to get my visa??
5. If I can submit a new application, does my company need to do RLMT?? If so, how long will this take??

I have emailed my case worker saying all this but havent heard anything yet. I have now asked my employer to do this as well. I will send all the docs tomorrow by post to my case worker.
1
you could only have re-applied within the 28 days period following the refusal which has now presumably pass

This is completely wrong.. 28 days is only calculated since visa expiry date

Post by **manci** » Thu Apr 11, 2013 7:17 pm

ncisgreat wrote: This is completely wrong.. 28 days is only calculated since visa expiry date

and your opinion is based on....?

SimiP · Post by **SimiP** » Fri Apr 12, 2013 8:58 am

Hi Guys,

could anyone send me a copy of old SOC codes (prior to 6th april 2013). I have tried the links but they are no longer available..

If anyone has got a saved copy, please can you send it???

ncisgreat · Post by **ncisgreat** » Sat Apr 13, 2013 10:14 am

manci wrote:
ncisgreat wrote: This is completely wrong.. 28 days is only calculated since visa expiry date
and your opinion is based on....?

These two links which i posted previously

http://www.davidsonmorris.com/dmblog/20 ... d-herring/
http://www.newlandchase.com/nc_blog/art ... es_read_on

They didnt write this just because they think like this. They have contacted home office and both article says 28 days grace period is for leaving the country without being overstayer

Post by **manci** » Sat Apr 13, 2013 2:28 pm

245HD(p)

ncisgreat · Post by **ncisgreat** » Sun Apr 14, 2013 12:59 am

manci wrote:245HD(p)

Can u provide full link

SimiP · Post by **SimiP** » Sun Apr 14, 2013 10:23 am

http://www.ukba.homeoffice.gov.uk/polic ... es/part6a/

If I am not wrong, it says 28 days of overstaying.. I am an overstayer???
As far as I am aware, if applied for visa before ur previous leave ends, u may not be considered as overstayer???

is that true???

Post by **vinny** » Sun Apr 14, 2013 10:51 am

You are not an overstayer while you have a pending appeal and Section 3C is in force.

ncisgreat · Post by **ncisgreat** » Mon Apr 15, 2013 2:08 am

2.1 Section 3C does not apply where a person's limited leave has already expired at the time of the application

this means if you decide to submit fresh application after ur visa expiry, you will be overstayer since the end of 10 days given time for appeal.. its unlikely you will get visa withini 28 days

you must not be overstayer more than 28 days to be eligible for ILR

Post by **vinny** » Mon Apr 15, 2013 2:54 am

My understanding is that:

You cannot vary nor make a fresh application for leave to remain while an appeal is pending (3C(4)). However, you may make a fresh application for leave to remain if the pending appeal ends.

If you withdraw your appeal, then the pending appeal ends (104(1)(b)). That is when Section 3C(2) finishes. It's at that time when you become an overstayer.

Moreover, if it's unlikely that the UKBA will make a decision on a fresh out-of-time application within 90 days, then it's risky making the fresh application from within the UK. Additionally, there isn't any right of appeal against a refusal of an out-of-time application.

Does that make sense?

SimiP wrote:Hi Guys,

Has anyone yet been for the Court Hearing?? If so, could please share your experience and provide guidance to me and others too.

It will be gr8 if anyone if you can help me in preparing for court hearing. I am just managing things on my own as I cannot afford a solicitor.

See also Appeals.

SimiP · Post by **SimiP** » Mon Apr 15, 2013 8:20 am

Thanks a lot!!!!!

SimiP · Post by **SimiP** » Wed Apr 17, 2013 5:40 pm

Hi vinny,

Thanks a lot for your reply!!!

Having a look at section 3C, if not wrong i can apply if my appeal get rejected??? Is this 100% true.....

Also, as the decision is yet pending I am within the time frame of submitting an out-of-time application. Is that correct??? My visa expired in dec 2012... and refusal letter was received on 27th feb 2013...... to submit an out-of time application is the 28 days duration counted from the date i will get final rejection from court???

Post by **vinny** » Wed Apr 17, 2013 9:37 pm

Yes. I think so.

SimiP · Post by **SimiP** » Thu Apr 18, 2013 8:32 am

Thanks a lot!!!!!

lastly I had mailed UKBA regarding the new SOC code...here's what they replied "you will be classed as new entrant but your job will not meet the relevant skill level" I am not sure what this means???

I am really sorry for repeating this in this topic again....but if i get a chance to re-apply i wont want to mess up as I will not be given to appeal next time!!

Post by **manci** » Thu Apr 18, 2013 8:49 am

SimiP wrote:lastly I had mailed UKBA regarding the new SOC code...here's what they replied "you will be classed as new entrant but your job will not meet the relevant skill level" I am not sure what this means???

First of all you need to establish from the T2 guidance what skill level you need for your application, e.g. NQF6.

What the email from UKBA means is that the job according to the SOC code you applied under is not at the required skill level.
See:
http://www.ukba.homeoffice.gov.uk/sitec ... orkers.pdf

SimiP · Post by **SimiP** » Thu Apr 18, 2013 9:02 am

Hi Manci,

Thanks a lot for your reply!!!!

Actually, that's what is confusing me more....i used 2132, Test Analyst in my original application which is at NQF level 6 and with the new SOC codes, I will be under 2139, software tester which is also at NQF level 6.

Will this be fine??? I have carefully seen the table and converting SOC 2000 (2132) to SOC 2010 (2139).....can you please let me knw if I am doing right???

Post by **manci** » Thu Apr 18, 2013 4:57 pm

according to UKBA (presumably the caseworker) "....you will not meet the relevant skill level".

The job title is less important than the job description which has to match as closely as possible the job description for the relevant SOC code.

The email from the caseworker is either
a) incorrect
or
b) the job description in your CoS doesn't match the job description for the SOC code given

SimiP · Post by **SimiP** » Fri Apr 19, 2013 8:39 am

Thanks for your reply!!!

I think the email is incorrect as I was refused due to inappropriate salary and not due to the skill level...

I was granted full points for CoS but 0 for salary.
So the email would have been incorrect. My job is at NQF Level 6. this should be ok??

SimiP · Post by **SimiP** » Mon Apr 22, 2013 4:28 pm

Hi,

I am planning to make a new application. Can anyone lemme know if we can continue working in this case???

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Court hearings and appeal - Tier 2

Court hearings and appeal - Tier 2