Employer's error refused Tier 2 Extension

[Fozza19]

Hi everyone,

Apologies if this is in the wrong place - I'm new here!

Earlier in the year my American wife went ahead with her Tier 2 extension to carry on working in the UK and due to 2 errors by her employers, her extension was refused.

The first error was that her employer didn't submit her CoS in the first place. 8 weeks after the application, we found out that this was the case so her employer then submitted the CoS but this time, it had the wrong information regarding her salary. They'd declared that she was making the right amount of money but over 40 hours rather than 39. The employers thought that this was correct and would suffice but it's plain to see with a little bit of research that the salary must be made over the 39 hours rather than 40.

The application was refused and as it was an extension, couldn't be reapplied for. No appeal/administrative review was lodged on the grounds that the fault lay with the employer and the details that were submitted were incorrect. This was pretty gutting as she only had 6 months to go before she could have applied for ILR. At this point, it's worth noting that her employer paid all of the associated costs for the extension. The visa itself, money for an independent lawyer and for the priority service.

After this happened, we decided that the idea was to apply for a spousal visa instead, which initially was going to be paid for in full, by the employer. There was then a change of tune from the employer regarding costs. Since then, the relationship with the employer has PLUMMETED and no resolution has been agreed on in terms of costs. Needless to say, this to us is very unethical considering that the employer had admitted full responsibility as soon as the extension was refused.

As it stands, she is now back in the US and because having no visa meant she didn't have the right to work in the UK, she has now been dismissed (we're both aware that this is legally sound). I'm still in the UK. Due to the unsuccessful and stressful nature of the negotiations with the employer, she now has no intention of returning (despite her job being open to her if she wants to return) and is trying to get into her desired field of work in the US whilst living with her sister.

As a result, the only option we now really have is for me to emigrate to the US, which we're looking into.

A key point to note is that we were never shown the Tier 2 extension application before it was processed, nor the CoS (I don't know if this is common practice anyway?). So the fault lies entirely with the employer as far as we're concerned.

At this point, we've spoken with ACAS but they think it's unlikely that a tribunal would make it to court as no employment laws have been broken. My concern is that the application was placed on our behalf and due to a mistake, we know are having to turn our lives upside down and find a way to be together.

Does anyone know on what grounds a claim could be made against the employer? I don't want to use the word "neglect" but it's clear that the only reason the application failed was due to errors when submitting.

If anyone can offer any help or advice I'd be most grateful. Especially if any of you have been through the same issues. It's been a stressful few months to say the least and we're now planning on how to move forward.

Thanks!

[Fozza19]

Update:

No conclusion could be reached with the employer. My wife has now had to move back to the USA and I'm still in the UK, looking to move over there on a spousal visa.

ACAS are involved regarding unfair dismissal (they caused her to not have the right to work) and negligence.

Any help or advice would be invaluable at this point.

Thanks,

[Frontier Mole]

As the relationship has broken down with the employer there is little point in pursuing any immigration based activity.
Can I clarify a couple of points.

You said the application was made on your wife’s behalf, surely your wife submitted the completed document or did she have no part in that?

The other question - did your wife authorise the legal representatives to complete and submit it on her behalf?

The reason I ask is that unless your wife authorised a third party to undertake the application and that she has accepted they were acting on her behalf it begs the question what exactly is the employer doing? It looks on the surface that the employer may have acted in a fraudulent / dishonest manner if they or their representative did not have permission to act,

[Fozza19]

Hi Frontier Mole,

Unfortunately, the only thing that my wife did in terms of the visa extension was gather the necessary documentation. As it was a sponsored visa, there wasn’t much for her to collect. So she didn’t get to see the finished application and she didn’t get a say in legal representatives used. This is probably because they sponsored her original Tier 2 visa in the first place and all went swimmingly.

As you say, the relationship is at an all time low and now it’s not about getting a visa to return, but about compensation eventually. ACAS have been spoken to and we’re hoping for early conciliation on the basis of unfair dismissal and/or neglect.

[Frontier Mole]

A very difficult situation, I am no expert with employment law so better people than I can help you on that.

From an immigration point of view it is not as suspect as I thought. I thought they had undertaken the whole process without authority or authorisation. I am assuming your wife had given them authority of some sort?
Sponsors only have to issue the COS and beyond that the application is entirely for the individual to take forward. Any help given as per legal representation is a bonus and I don’t know of anyone who would not accept such an offer. So for it to go horribly wrong and the impact it has had is frustrating and I imagine pretty devastating.

I wish you well and hope that you are able to appropriately compensated.