Urgent Tier 1 Visa rejected-Please immediately advise / Help

[naveediiqbal]

Any more advises please. Thank you.

[sorento]

can you re-submit by 6 April as a new application? As no further extension after 6 April that why not have a re-try? If not successful, then you can try to appeal.

[naveediiqbal]

Thanks. I can not as period of leave is lapsed now.

[naveediiqbal]

Big case in hearing tomorrow may have an impact on many of us.

Case summary:
The appellant is an Indian national who came to the UK on a student visa in 2009. When he applied for further leave to remain as a student in February 2012 he was required by the relevant Immigration Rules to accompany his application with copy bank statements covering a 28 day period and showing a minimum balance of £5,400 throughout. In error he provided statements covering only a 22 day period. The respondent did not apply her 'Evidential Flexibility' Policy to him, which would have afforded him a chance to correct his error, before his application was refused and a decision to remove him was made.

[naveediiqbal]

Hi Forum members,

I need some guidance from you for my appeal forth coming (next month)

I was refused the Tier 1 extension and my appeal is set for Next month. The case worker refused my case on my previous earnings. I claimed more then £32,000 (to award me 35 points) from 1 Nov 2013 to 31 October 2014. The case worker awarded me only 31,880.58 and awarded only 30 points (and said its earning from 8 Nov 2013 to 7 Nov 2014 - changed my initial period) so I could not get the required points overall to get the extension.

They did not send me any computation so I had no clue how they arrived at this number. I filed for appeal and in their bundle again there was no computation. I then requested SAR and then eventually got their copy of computations.

The following are my observations:

1. It seems that they have taken earning periods based on payments date rather then earning dates (so changed the period - that's my first point that they can't change a period - But not a major issue as will still give the same earning results for me)

2. The most disturbing this is that they included only basic pay and overtime and have not included any allowances (Medical and Life insurance allowance - there were no reimbursements) which was clearly visible in my payslip. this number was also included in period to date taxable earnings (on payslips) and was also reported to HMRC. I prepared a list of earning (in my initial application pack that was showing my monthly earnings as well as reconciled these to P45 and P60 for corroboration purposes - I though it was tough but I showed linkage in a simpler way).

According to para 101 to 102 of Tier 1 (G) guidance

101. We will only include allowances (such as those for accommodation or schooling for your children) in the assessment of your previous earnings if they are part of your remuneration package and are not paid to reimburse you for money you have previously spent.

102. We will only accept allowances as earnings if they are declared in your payslips and there is a contractual obligation on the employer’s part to make these payments.


It seem to me based on guidance that if allowances are mentioned on payslip and contractually obligated on employer ( and not reimbursements) then these shall be include it in earning.

Your input and guidance will be much appreciated.

[geriatrix]

On what date did you apply for this extension?
What was the 12 month period that "you" chose for your earnings calculations?

[naveediiqbal]

On what date did you apply for this extension?
What was the 12 month period that "you" chose for your earnings calculations?

Thank you for your kind response.

I applied (posted by Royal mail traced and taken by HO as the date of application) on 26 January 2015 as my visa was up to 27 January 2015.

I claimed earning period from 1 Nov 2013 to 31 October 2014. All employment earnings.

I will be really thankful if someone could guide me.

Regards,

[geriatrix]

1. Since you applied on 26-Jan-15, your 15 months window started from 26-Oct-13 until 25-Jan-15. So, your consecutive 12 month period from 01-Nov-13 to 31-Oct-14 is absolutely fine.
2. Date of salary slips / date when the salary was deposited in the bank is completely irrelevant. What is relevant is "the days you worked and therefore entitled to a salary for working on those days" under the contract of your employment.
3. All allowances as defined in your employment contract are admissible unless they are paid as reimbursements or when not mentioned in the salary slips. If required, include a copy of employment contract that mentions all such allowances for the judge's reference.

It appears indeed that the caseworker was wrong in refusing your application.

[naveediiqbal]

1. Since you applied on 26-Jan-15, your 15 months window started from 26-Oct-13 until 25-Jan-15. So, your consecutive 12 month period from 01-Nov-13 to 31-Oct-14 is absolutely fine.
2. Date of salary slips / date when the salary was deposited in the bank is completely irrelevant. What is relevant is "the days you worked and therefore entitled to a salary for working on those days under the contract of your employment.
3. All allowances as defined in your employment contract are admissible unless they are paid as reimbursements or when not mentioned in the salary slips. If required, include a copy of employment contract that mentions all such allowances for the judge's reference.

It appears indeed that the caseworker was wrong in refusing your application.

Thank you very much sushdmehta, You analysis and guidance gave me a boost much needed now as me and my family are going under huge stress due to this issue.

I have already included a copy of my employment contract in my appeal bundle along with payslips (although payslips were sent already with initial pack). Looking forward to my hearing date next month.

I owe you guys 9 moderator, senior and other members on this forum to provied so much help and guidance on every occasion.

[naveediiqbal]

1. Since you applied on 26-Jan-15, your 15 months window started from 26-Oct-13 until 25-Jan-15. So, your consecutive 12 month period from 01-Nov-13 to 31-Oct-14 is absolutely fine.
2. Date of salary slips / date when the salary was deposited in the bank is completely irrelevant. What is relevant is "the days you worked and therefore entitled to a salary for working on those days" under the contract of your employment.
3. All allowances as defined in your employment contract are admissible unless they are paid as reimbursements or when not mentioned in the salary slips. If required, include a copy of employment contract that mentions all such allowances for the judge's reference.

It appears indeed that the caseworker was wrong in refusing your application.

Hi,

This suggestion is great. I am wondering if I will attach my employment contract / employer letter stating the fact that these allowances are part of my remuneration package then will judge rely on these and not say that these are new documents (Though these are not new and only emphasizing the old document - already mentioned in payslips but ignored by Caseworker). Or you can advise a better way to tackle this potential issue. I will be grateful on any input on this concern.

[geriatrix]

The contract is not the evidence, in context of your application, the evidence is the payslip.
The UKV&I issued policy guidance and your employment contract are to support your grounds for appeal.

[naveediiqbal]

The contract is not the evidence, in context of your application, the evidence is the payslip.
The UKV&I issued policy guidance and your employment contract are to support your grounds for appeal.

What an intelligent response. You are a true guru. Thanks v much.

[naveediiqbal]

The contract is not the evidence, in context of your application, the evidence is the payslip.
The UKV&I issued policy guidance and your employment contract are to support your grounds for appeal.

Hi Sushdmehta,

Thanks v much for your wise inputs. I have another v important question, I discovered HO mistake (omissions of allowances) in earnings after I received the subject access report and compared with my taxable earnings with reference to my orignal payslips. If SAR report could be used at appeal to show the Judge that HO made calculation mistake or not and shall it also be a support for my grounds of appeal or deemed inadmissible by judge as it was obtained after application date.

[geriatrix]

I don't understand what you mean? What does the SAR report tell you - how the caseworker made a mistake in calculations? How is that important or relevant?
The fact is that caseworker made a mistake. And hence the decision is wrong. And you have to prove that caseworker made a mistake. Why do you need SAR report to prove that?

[naveediiqbal]

Hi,

Apologies if it was not clear earlier. As I claimed more then 32000. But home office in their refusal letter notified that they arrived at 31,880.58 only. They did not send any details why they arrived at a different number. Even in their appeal pack no computations were provided for that 30,880.58. I later applied for subject access request and then I was able to obtain those GCID report showing their computation. This list showed that they included only basic and overtimes but excluded medical allowance and other allowances and also made a mistake of adding a 600 pounds in my salary which was not included in my payslips or either claimed by me. In order to show that they have made a mistake of not including allowances in arriving at 31,880. I need to show them SAR GCID page. So will that be a new evidence or not. Thanks for your help once again.

[geriatrix]

Imagine there is no SAR report.

Prove to the judge that the caseworker should have calculated your permissible (according to policy guidance and immigration rules) earnings as £32000 and the caseworker was wrong in arriving at the figure that he/she arrived at.

Why do you need a SAR report to prove that your earnings were £32000? Why can't you prove that without a SAR report?

[naveediiqbal]

Agreed, its them who need to prove 31,880. I need to prove only more then 32,000 (that could easily be without SAR). Thanks again for so much of your time and guidance. Wish you a great day.

[naveediiqbal]

Imagine there is no SAR report.

Prove to the judge that the caseworker should have calculated your permissible (according to policy guidance and immigration rules) earnings as £32000 and the caseworker was wrong in arriving at the figure that he/she arrived at.

Why do you need a SAR report to prove that your earnings were £32000? Why can't you prove that without a SAR report?

Hi Sushdmehta,

Thank you for your guidance in past. I am having a little confusion.

I initially sent my Payslip from employer A and employer B.

HO has difference with only employer A earnings

Employer A payslip shows earnings as a line item (this including Basic earnings and Overtimes and excludes medical and other allowances that are paid to the third party (AXA in my case) - It seems caseworker just took this number without comparing to my list of earnings.

This line item did not include my medical allowance (however my allowances clearly shown in payslip separately). in the bottom of the same page there is another line item Earning before tax (Taxable Pay - Period to date) which includes the allowance but it shows earning before tax only on cumulative basis. it means if we deduct previous months period to date earnings from the same line in the current month that shows the current month earning (this is the earning I claimed in my Tier 1 earnings and this is the same amount reflected by P60 and P45 submitted by me with application). I had sent a list of earning before tax with my application but HO bundle sent to me doesn't not include this computation.

Later my employer (after refusal date) also issued me a letter showing the same numbers that I claimed in my application. HMRC also have sent me letter ((after refusal date) showing the same numbers for that employer.

Just need some guidance that How may I state that while earnings on my payslip is just my earnings without allowance before tax (did not include medical and some other allowances) and my list of earnings that was showing my actual earnings before tax was claimed correctly but was ignored by case worker). that was cross matching with P45 and P60 and cumulative taxable earnings on payslip.

My supports to the grounds of appeal contains (my earning computation excel sheet, my contract copy, Tier 1 guidance and immigration rules, employer letter (for clarification - obtained after decision date but matches to earning I claimed) and HMRC letter for my income for the period and tax paid.

Need some guidance just how to explain my point of view in a most efficient way for appeal. I understand you have more experience and an intelligent mind then me so need some help from you.

I will be thankful from core of my heart as I always do.

Kind Regards,
Naveed

[geriatrix]

If you are unable to figure out how to explain simple facts about the structure of your salary and how it is reflects in your payslips (in other words, your point of view of actual facts) at your appeal hearing, suggest that you seek professional help or representation.

[naveediiqbal]

If you are unable to figure out how to explain simple facts about the structure of your salary and how it is reflects in your payslips (in other words, your point of view of actual facts) at your appeal hearing, suggest that you seek professional help or representation.

Hi Sushdmehta,

Thanks for your advise. I will follow. Do you think the way I have explained here will be alright or any weekness in this way that I explained. Any thing I might need to consider or take care of.

Any way, thanks again for all your advises.

Regards,
Naveed

[naveediiqbal]

Hi,

I need to understand some thing.

The salary structure of my company is They show Basic Salary + Overtime + Benefits allowances - deductions = Total Earnings (which I understand is actually Net pay before tax and NI as you deduct employee payments and payments to third parties like medical insurance)

Taxable pay for this company is Just Basic Salary + Overtime + Allowances (not deducting employee payments or to third party as this may not allowed for tax purposes) this number is shown in P46 and P60 and tax letters as well.

Just wanted to ask for Tier 1 earnings the applicable earnings should be The total earnings (which is actually net earnings after deductions as described above) or Taxable pay (Gross earnings + benefits)

Need guidance from you guys.

[naveediiqbal]

I am wondering if someone could guide me the basic definition for Gross income (for salaried / employed person) used by the Home office. What are the components and if it is before or after deductions like medical insurance, life assurance deductions (apart from NI and tax deductions).

It will be great if someone could provide a link to any relevant documents.

[CR001]

Gross Income is income before any deductions and allowances, i.e. £25,000pa gross is what would be stated in a contract.

Net income/pay is the salary after all deductions and what you are paid into your bank account.

[naveediiqbal]

Gross Income is income before any deductions and allowances, i.e. £25,000pa gross is what would be stated in a contract.

Net income/pay is the salary after all deductions and what you are paid into your bank account.

Thank you for your kind and quick response. May I get any link to the source document which states this and could be used in hearing. I tried my best but could not fine any official UK site quoting this. If possible please provide a link, I will be really thankful. Kind regards.

[CR001]

It is not a UKVI/HO definition, it is an international accounting/tax/HR definition of gross and net income and defined in all dictionaries. I don't see how you can dispute something like this. What is the issue that you need the HO definition?