Tier 2 General Extension - Wrong NFQ submitted

[varun711]

I applied for a Tier 2 General Extension as I my first Tier 2 general visa expired on June 14 2016. From 2011 to 2013 I worked in the UK under PSW then shifted to Tier 2 with SOC code 3539 (NFQ level 4).

I reapplied this year with the same NFQ level 4 assuming it should be ok as I am only extending under the same job. My application has been rejected stating that 3539 does not fall under the required NFQ 6. They have granted me only a right to administrative review. My office and HR are ready to help in any way possible. Could anyone please advice what the best possible action would be now? Has anyone else had the same issue?

I have rechecked the SOC code with respect to my job description and It can fall under 2429/2426 ... I know administrative review only applies to mistakes made by the home office hence I am really worried about this. Can I leave the country and submit a fresh application?

[CR001]

Can I leave the country and submit a fresh application?

Doing this will reset your clock for ILR and you will be subject to the 12 month cooling off period.

Suggest wait for FrontierMole or moonlight55 or iworker to respond.

[Frontier Mole]

The caseworker has made an error, unfortunately there can be a lack of knowledge on this area.

You were NQF4 before so can remain on NQF4. Put in the AR pointing out you qualify for a NQF4 role. You don't need to make a mountain out of the AR.

Just quote para 100 of the Tier 2 migrant policy version 04/2016 which covers the use of the SOC on the last application Hence points to the fact that it is a NQF4 role....

And

para 24.10 Sponsor Poicy Guidance version 04/2016 which covers the NQF 4 routes that apply to you.

[iworker]

@frontier mole..
Isnt the mistake made in the first application of the OP when he applied for initial tier 2, as he applied in 2013 and by that time, nvq level 4 was not offered on tier 2 anymore.
I think the OP is lucky to not have his leave curtailed earlier as there are people on the forum who got the leave by mistake on nvq level 4 jobs and their leave was later curtailed when they realized their mistake.
I think the only forward is, OP company performing rlmt for another nvq level 6 job, and assigning a cos to him by the time the AR is rejected.
If you leave the country, u will have to serve 1 year cooling off time before you can apply again.. (any type of tier 2).

[Frontier Mole]

Without dragging out the previous guidance from years ago and having the joy of working out the route from PSW to tier 2 at the time the OP moved to tier 2 I really could not answer your point.

The guidance states that his first grant of tier 2 was at NQF4 therefore his continued extension is also at NQF4. Any attempt to deny him continued NQF4 work will fall foul of the reasonablness rules at JR. The mistake if there was one binds them under Wedensbury rules, which is not for a caseworker to consider.

The easier route maybe to go through RLMT NQF6 route initially but that will just move the whole down the line into pre selection RLMT failure etc...

[varun711]

Thank you for your reply guys.

I spoke to a lawyer. Had a conference with the lawyer my manager and HR. He more or less said what you both (frontier mole and iworker) expressed.

At the moment he said the best possible thing to do would be a RLMT and then reapply with a new sponsorship certificate. However as I am overstaying as my visa expired on 14th June he said the chances of that application being accepted if I apply from within the UK are slim and that my best route would be to go and apply from India.

I do agree with the reasoning of frontier mole and the fact that this error happened due to lack of proper understanding of the rules and assuming that because it is an extension application the same SOC code would apply. I am planning on getting opinion from another lawyer as well because this just seems to be too harsh an outcome/decision for such an error as it literally puts me out of a job and displaces me as I will have to leave the country. Is there some other form of help service with regard to homeoffice and immigration that I can consider?

[varun711]

also the lawyer mentioned that because I haven't been in the UK for a continuous period of 6 years the 12 month cool off would not apply in my case.

[CR001]

also the lawyer mentioned that because I haven't been in the UK for a continuous period of 6 years the 12 month cool off would not apply in my case.

He is talking nonsense. Being in the UK for 6 years is irrelevant to the 12 month cooling off period if you leave and apply from home country.

[vickky]

hello everyone,

Could someone please interpret para 75 the below for me. My extension application is in November 2016 and my SOC is still under NVQ 6 in the revised classification codes . I applied as a new entrant in 2013 for 3 years and i am looking at applying for 2 years .Does this mean if i apply for a lower NVQ i will be granted?

Also, Do i still fall under new entrant category applicant or now experienced worker?

Applications for Leave to Remain
75. The job currently does not need to be at NQF 6 level (or the equivalent in Scotland) if you
are already in the UK and were initially granted leave in one of the categories below:
 Tier 2 (General) or Qualifying Work Permit Holder for a job which appeared on the
shortage occupation list at the time of your grant of leave; and
 you have not since been granted leave to remain, entry clearance or leave to enter in
any other route; and
you are applying for the same job for either the same or different sponsor,

thanks

[Frontier Mole]

@vickky

You can't downgrade to a lower NQF unless it is a shortage occupation. If you are doing the same job with the same employer at NQF6 that is the basis of your extension. If it is anything else then a different set of rules apply.

Experienced salary will be required.

[Frontier Mole]

also the lawyer mentioned that because I haven't been in the UK for a continuous period of 6 years the 12 month cool off would not apply in my case.

He is talking nonsense. Being in the UK for 6 years is irrelevant to the 12 month cooling off period if you leave and apply from home country.

This lawyer is not an immigration lawyer that is for sure..... 12 month cooling off period will apply.

Two things - an out of time tier 2 application does not fall for automatic refusal but I still suggest you go for the AR

You have to at least attempt AR even if it is to give you an operating window to get a RLMT ongoing.

[varun711]

The Lawyer I don't think was the best at explaining things. Hence I will definitely get another opinion.

If my AR gets rejected will it create any issues with my new application?

One of the options we are considering is that the company will apply for another CoS (we only had allocation for one as I am the only overseas worker that they employ) and when they apply for the CoS they will give the new NQF 6 code with a reason that there was an oversight on part of the company the first time and provide appropriate paperwork from my HR file etc to make the case. With this in mind would you please be able to answer the below.. (Also ukba dint return my passport and have it in their possession)

1) What is the latest that I need to submit my visa application by? (Last Tier 2 expired on 14jun16 and extension visa refusal letter issued on 12jul16)
2) If the company can make the case as stated above saying that there was an error would I still be able to submit an extension application or would it have to be a new application?
3) If it is a new application for tier would the company need to do a RLMT?
4)) Can I apply for a different job and considering that I get one can I apply for tier 2 visa through them without having to leave the country?

other than the above if there is any other points that I should keep in mind please do let me know. Its getting a bit hard to think under all the stress

Thank you guys for all your help

[vickky]

@vickky

You can't downgrade to a lower NQF unless it is a shortage occupation. If you are doing the same job with the same employer at NQF6 that is the basis of your extension. If it is anything else then a different set of rules apply.

Experienced salary will be required.

thanks Frontier. Please can i ask for you to please tell me the interpretation of para 75? who does that apply to?

[Frontier Mole]

Applies to roles with SOC's below NQF6 where there was a previous grant as at the time or still currently were shortage occupation roles.

E.g. chefs

[vickky]

hi Frontier Mole,

Please another question. will i still be considered as an experienced worker if i am only extending for 2 years or less.

I am due for 10 years lawful living ILR in March 2017 and i am looking for the best way possible as my current salary is not up to what is required for the code 2429.

thanks