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Skilled Work Permit

Tier 2 Visa refusal & appealing against the decision

A Tier 2 visa refusal can be decided on a number of reasons and is not limited to the general grounds of refusal. In all immigration applications, the general grounds of refusal plays an important part of the decision making process. 

Whilst you may have completed an application, the answers provided or the evidences lodged, may lead to your Tier 2 visa refusal. 

Whenever an application for a Tier 2 is lodged, your employer should have selected the appropriate SOC code, salary rate, and carried out the necessary Resident Labour Market Test, referred as RLMT to avoid any unnecessary stress and delays to both applicant and business processes. 

Remember that prior applying for the Tier 2 visa, you must check your application prior submission, as your right to challenge will be determined based on the information and evidences provided at the date of application. In a point based immigration application, the date of application matters. 

Common grounds of Tier 2 visa refusal

We have put together some of the most common grounds of Tier 2 visa refusal and those are as follows: 

  1. The employment is not genuine and the Tier 2 migrant has failed the Tier 2 genuine test. This is a very common ground of Tier 2 visa refusal. 

  2. The certificate of sponsorship contains wrong information, namely the incorrect SOC code for the proposed job.

  3. Inappropriate salary. This does not meet the threshold as set out by the immigration rules. 

  4. Insufficient maintenance funds which are a common reason for refusal. 

  5. You may have breached your immigration conditions or have overstayed your visa in the UK. 

Employers are encouraged to adopt a hands-on approach and assist applicants with their application until its successful competition to ensure that the information presented on the applicant’s form matches with that offered by the organisation.

Your employer can consult ICS Legal, who can explain and advice on how to correctly assign a certificate of sponsorship. 

Invalid applications under the Tier 2

When an application as a Tier 2 is lodged, it can be invalidated for a number of reasons but this is not the same as being refused. 

You will not have a right to appeal against the application which had been rejected and as long as you have lodged the application prior to the visa was to expire, you will be able to re-apply within 14 days. 

The most common grounds of a rejection on a Tier 2 visa application are as follows:

  1. Non-payment of fee or payment of an incorrect fee.

  2. The form is not signed.

  3. You have not submitted your biometric information. 

Where your application was wrongly invalidated, you can challenge against the decision and must set out the reasons for your challenge. 

Immigration appeals under the Tier 2 visa

Following the changes implemented by the Immigration Act 2014, right to appeal is restricted only on human rights grounds. If you have applied for indefinite leave to remain and your application has been refused, then this may constitute a human rights appeal. 

Tier 2 Visa Refusal can still be challenged by way of a judicial review or request for an administrative review. Please make sure you read the decision letter, as this will usually explain what you can do now. In some cases, you may be better to re-apply then challenge the decision however this may break your continuous residency in the UK and may impact your indefinite leave to remain application.  

Frequently asked questions related to Tier 2 Visa Refusal

We hope the following will answer some of the common questions asked about the Tier 2 General visa refusals: 

Can I submit further evidences post date of a refusal under the Tier 2?

In most cases no, however this will depend on the grounds of refusal and the circumstances. 

What happens if my sponsorship certificate is withdrawn, can I appeal that decision?

No, this is an issue between you and your employers. The Home Office does not deal with contractual dispute. 

Can I appeal against a Tier 2 General ILR refusal?

Where your application for Tier 2 General is refused, you will be able to challenge against the decision. Usually, you will have 14 days to do so and will need to make a formal submission as part of challenging against the decision. You cannot submit further evidences post the date of application. 

Can I appeal against an ILR refusal based on human rights grounds?

Yes, to attract a right to appeal against the decision before the First Tier Tribunal. Usually, an application for indefinite leave to remain should attract a right to appeal, however unless you demonstrate how the decision impacts your right to family and private & draw Article 8 ECHR rights, the Home Office may decide not to grant a right to appeal. Simply stating the refusal will impact your human rights is not sufficient. 

In addition to this, if a right to appeal is not generated albeit you have raised sufficient grounds and have enclosed substantial evidences to support your human rights grounds, we can also consider judicial review process once you have followed the legal remedy which is currently available. 

Taking legal advice on the Tier 2 visa refusal

At ICS Legal, we will advise you on how best to challenge a Tier 2 visa refusal. There is limited legal remedy but we will assess advice and explain the best process to follow. We will also explain why we advise on an option with full reasons. To give you more assurance, all our advice is in writing. 

You can speak to one of our UK Immigration Lawyers on the Tier 2 General visa refusal by sending us an email on info@icslegal.com including the decision letter or you can call us on 0207 237 3388. You will have limited time to challenge against the decision, so please do not wait and contact us as soon as you can. Please also keep proof of service i.e. the postal envelope to confirm on the date of service. 

 

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