Tier 2 ICT refusal

[mail2debi]

Hi Experts,

I got visa refusal for my Tier 2 ICT application. My situation is below:
I entered UK on Nov 2010 and from then I got 4 extensions till Nov 2016. I returned to India on Oct 2016 and applied for Tier 2 Long term on Dec 2016.
As per my understanding, cooling-off is not applicable to me as I will come under the rules before 6 april 2011.

However, ECO put a comment saying I have to cover 12 months cooling off period as I was issued with Tier 2 ICT last year. And to my surprise, one of my other colleague got his visa stamped who is in the same situation.

I applied for a admin review for this, but is there something I am missing here?
Thanks a lot in advance.

[moonlight55]

The decision by ECO is correct. You had a prior Tier 2 visa and you applied for a new Tier 2 visa from India (Note: The new application was for a new entry visa and not an extension). 12 months cool-off will apply in your case.

The other colleague you talk about. I'm pretty certain that the case is exactly not same as yours. Which visa did your colleague had earlier and which one he applied later and from where?

[mail2debi]

Thanks for response.
I understand this is not an extension. But is the exclusion rule not applicable here and i am referring to 245 G(e) as below.

As per immigration rules 245 GB(e) cooling off exclusion is applicable as below:
" is applying under the Long Term Staff sub-category and who has, or last had entry clearance or leave to remain as a Tier 2 (Intra-Company Transfer) Migrant in the Short Term staff, Graduate Trainee or Skills Transfer sub-categories,
or under the Rules in place before 6 April 2011"

My colleague is exactly same situation ..in fact we both discussed and came to india for applying visa.

[moonlight55]

The devil is in the details. Please read carefully:

"is applying under the Long Term Staff sub-category and who has, or last had entry clearance or leave to remain as a Tier 2 (Intra-Company Transfer) Migrant in the Short Term staff, Graduate Trainee or Skills Transfer sub-categories, or under the Rules in place before 6 April 2011".

When was your last visa issued? You mentioned that you extended the visa from within UK few times. Most likely that your last visa was in ICT Long term category and was not under the rules in place before Apr 2011. Hence I feel the decision is correct.

I would suggest you also read the cool-off section in T2 Sponsor guidance. The exceptions are explained much clearly in there.

I'm surprised that our colleague got the visa if it's exactly the same situation as yours.

[poper]

is applying under the Long Term Staff sub-category and who has, or last had entry clearance or leave to remain as a Tier 2 (Intra-Company Transfer) Migrant in the Short Term staff, Graduate Trainee or Skills Transfer sub-categories, or under the Rules in place before 6 April 2011".

I think the 'leave to remain' clause is for somebody who has 'switched' to Tier 2 ICT Long Term from a different immigration category.
This is a harsh decision most probably owing to the case worker's ignorance.
Your entry clearance was as Tier 2 ICT Established Staff and you have only 'extended' your leave to Tier 2 ICT Long Term(as Established Staff visa was made obsolete)
Your leave was only 'extended' and this was not a visa 'switch' to ICT Long Term. I am not sure if there is a process to appeal Entry Clearance cases. If there is, IMHO your company should go for it

[mail2debi]

Thanks Popper for response.
Thats exactly my point and my company believes it as a mistake. Also we have an example.
I can only apply for a review and which i did. Now i am waiting for outcome. Fingers crossed.

[poper]

Kindly keep us posted on your case

[mail2debi]

Still waiting for the decision. Review process is just a black box.

[vinny]

If you were under the rules in place prior to 6th April, 2011, then didn't you qualify for a ILR prior to 6th April 2016? Why haven't you apply for ILR yet?

[mail2debi]

I dont think ILR is applicable under apr 2011 rule but it is Apr 2010.

[vinny]

Oops! Sorry. You are correct, under 245GF(d).

[mail2debi]

Hi,

Can anyone kindly let me know if 28 days period of review process is calendar days or working days?
Its now 4 weeks that I applied for admin review but not receiving any update.
UKVI enquiry is also a waste and not having any idea of review progress. Upon my request they have escalated to get an update.

Thanks

[mail2debi]

I got the decision today and they overturned the decision. Now they will issue my visa.

[poper]

Congrats

[mail2debi]

Thank you.