Visa Refusal - Tier 2 Genaral

[v2kisad]

Hi All,

I would like to get advice on what are my options as I had my Tier 2 General Visa application rejected today. According to the letter that i received the reason for refusal is as mentioned below -:

"ECO Comment: Your Certificate of Sponsorship states that your prospective employment as a Tier 2 Storage Administrator most closely corresponds to the occupation code 2133 IT specialist managers on the Codes of Practice (which are also specified under Appendix J of the Immigration Rules)
The minimum acceptable rate of pay for a 40 hour working week for your prospective employment as a Storage Administrator is £40,000 as stated for occupation code 2133 in Appendix J of the immigration Rules (Source: Income Data Services). Your Certificate of Sponsorship states that your salary would be £46,600 based on a 48 hour working week. This means that your salary based on a 40 hour working week would only equate to £33,833 which is below what is required for this occupation code.

As your prospective salary is not at or above the minimum rate as specified in the Codes of Practice, I do not consider it to be at the appropriate rate for this job.

You have therefore been awarded 0 points for Appropriate Salary."

Given the above,I have refused your visa application on this occasion because I'm not satisfied that you meet all the requirements of paragraph 245HB of the Immigration Rules.

Administrative Review:
If you believe that the decision made by the Entry Clearance Officer was incorrect you may apply for an Administrative Review of your case. You may request one Administrative Review of this decision.


Based on the above what are my options for review or reapply at the moment.Please advice.

Thanks in advance

[manci]

. This means that your salary based on a 40 hour working week would only equate to £33,833 which is below what is required for this occupation code.

not £38,833?

You will need a new restricted CoS with either reduced weekly hours or increased salary and then re-apply.

with 46.5 hours/week and £46,600 salary you would pass the threshold

[v2kisad]

Hi Manci,

Thank you for answering my query. I'm in India at the moment and had applied for the visa from India. When you say I would need a new COS with either reduced working hours or increased salary, does that mean I'll have to go through the entire process of Labour market test and then apply for the COS and then the visa ?

If my company agrees to issue me a new offer with reduced working hours or increased salary, can I not appeal for review with the new offer.

Thanks

[manci]

unfortunately you'll have to go through the whole process again. No point requesting an administrative review as the ECO's decision was correct

RLMTs are valid for 6 months and, if still valid, yours will only have to be repeated if the job parameters, as advertised, did not tally with those that will be given in the new CoS

You didn't answer the question - was £38,833 or £33,833 in the letter you received?

[v2kisad]

Hi Manci,

Thanks again for the reply. The figure mentioned in the letter is £33,833 however he has got my salary wrong,its £46000 (as mentioned in COS) and not £46600. Not a big difference but still he's got it wrong. Do you know how he arrived at this figure.

While i understand that the review will be futile, I'm not clear on the remaining part of your answer. I have return ticket to UK for next week and my current Tier 2 dependent visa is still valid. Can i return to UK and assuming if my company is still interested , apply for the labour market test immediately. In other words can i reapply immediately or i need to wait.


Thanks

[manci]

it seems that there are several mistakes in the ECO's decision letter. I suspect the calculation s/he made was:
40/48 * 46,600 = 38,833
However, this is a technicality and if in the CoS your salary incl. allowances (if any) was stated as £46k for a 48 our week you don't meet the min salary requirement because:
40/48 * 46,000 = 38,333 < 40,000

On the basis of a £46k salary incl. allowances the weekly hours would have to be max 46:
40/46 * 46,000 = 40,000

Do you have a printout of the CoS and have you checked what is in it re. hours and salary?

If you have valid PBS dependant leave you can return to the UK and are allowed to work.

if a new RLMT is needed that would take 28 days. If the RLMT is successful, i.e. there are no suitable candidates from the settled workforce, then the company will have to apply for a restricted CoS and only when that has been assigned can you re-apply (from India).

[v2kisad]

Thank you Manci. I have checked the CoS, the salary and weekly working hours are indeed £46000 and 48 hours respectively. However I have a feeling that the working hours mentioned in my contract maybe incorrect,I'll clarify tomorrow with my office.

I know i can go back and resume work but I want to reapply again for this visa. My wife and i have filed for divorce so technically I just have six months on the dependent visa. In fact i had ealier posted on this forum seeking advice on the visa http://tinyurl.com/qakoytu

If my employer agrees to raise my salary or reduce the working hours and issue me a new contract then do i have to go through the Labour Market Test or can they straightaway apply for a new CoS.

Secondly in case the working hours was incorrectly mentioned in my contract and therefore was incorrectly mentioned while applying for the Cos. In this scenario can I appeal if my employer issues me a letter mentioning the correct working hours and stating that they has made a error in the CoS application

Thanks

[manci]

Thank you Manci. I have checked the CoS, the salary and weekly working hours are indeed £46000 and 48 hours respectively. However I have a feeling that the working hours mentioned in my contract maybe incorrect,I'll clarify tomorrow with my office.

I know i can go back and resume work but I want to reapply again for this visa. My wife and i have filed for divorce so technically I just have six months on the dependent visa. In fact i had ealier posted on this forum seeking advice on the visa http://tinyurl.com/qakoytu

If my employer agrees to raise my salary or reduce the working hours and issue me a new contract then do i have to go through the Labour Market Test or can they straightaway apply for a new CoS.
this question has already been answered

Secondly in case the working hours was incorrectly mentioned in my contract and therefore was incorrectly mentioned while applying for the Cos. In this scenario can I appeal if my employer issues me a letter mentioning the correct working hours and stating that they has made a error in the CoS application
Read the rules of administrative review in Appendix C of the T2 policy guidance. You will see that it doesn't really apply in your case. However, if your sponsor produces such a letter you could try sending it to the ECO who made the refusal decision with a request for reconsideration - but don't hold your breath


Thanks

[v2kisad]

Thanks again Manci. I realise that the only option would be to go through the entire process again. Its kind of unfortunate that the immigration consultant company who acted on behalf of my employer to help me with the visa overlooked this.All I can do now is pray and hope my employer has the patience and inclination to do it all over again.

Thanks.

[manci]

Thanks again Manci. I realise that the only option would be to go through the entire process again. Its kind of unfortunate that the immigration consultant company who acted on behalf of my employer to help me with the visa overlooked this.All I can do now is pray and hope my employer has the patience and inclination to do it all over again.
.....and reimburse the cost of a new application, the cost of a return flight to India and loss of wages, if any........
Also, your employer should seek compensation from the immigration consultancy and could report them to the Law Society or the OISC if they are members of one of these institutions
Thanks.

[v2kisad]

Just to update, i have received my Tier 2 General Visa on the second attempt. My employer was kind enough to let me reapply. I was assigned a new COS with reduced work hours which then led to my salary fall within the appropriate limit. Thereafter it was just a matter of going through the application process once again.

Thank you for your help.

[js2289]

v2kisad,
congrats on receiving your t2 visa, i am in a very close situation to yours and i am putting a lot of hope into getting this visa, my employer has offered me a role but i am not sure if it falls under NQF level 6, i was wandering how can i be sure by comparing the description of the role to that in the CoP ? are you able to please provide me with the job description of the role you were granted the visa for ?

[srinivasb]

v2kisad,

could you please let me know how much time it has taken for you to receive the visa update(stamping) after you submitting your application. Appreciate your quick help here.