TIER 2 GENERAL VISA APPLICATION

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Tier 2 General is one of the UK work visas under the point based system PBS. Tier 2 General allows the applicants from inside the UK or from overseas to apply for work visa (entry clearance or leave to remain) under the UK point bases system. The UK employers must first obtain sponsorship license from the Home office in order to sponsor overseas workers under Tier 2 General category.

The licensed employers can apply for sponsorship certificates under UK Immigration Rules to employ overseas workers who are either already residing in the UK legally [and able to switch to Tier 2] or are based overseas. The Secretary of State has published a Tier 2 General visa quota for those coming from overseas which is 20,700 (currently). Those applicants who are already in the UK and are able to switch does not fall under the Tier 2 General visa quota (with the exception of dependents of Tier 4 migrants).

REQUIREMENTS FOR TIER 2 GENERAL VISA APPLICATION

Who can apply for a Tier 2 General Visa?  

Following persons may apply for leave to remain under Tier 2 General:

  • Any Tier 1 – Main applicant (includes start up and innovator visa migrants)
  • Any Tier 2 – Main applicant (with the exception of Tier 2 ICT who had their leave granted under the rules in the place after 06 April 2011).
  • Any Tier 4 General migrant – provided he / she has completed at least Bachelor’s degree from a UK University.
  • Dependent partner of a Tier 4 student (provided the applicant is assigned a restricted COS)
  • Representative of an Overseas Business

Tier 2 General Visa Application requirements:

It is important to note that you will be required to have a certificate of sponsorship to be able to apply for leave to enter or leave to remain via any of the aforementioned categories. It is a PBS immigration route and would require successful applicants to score 70 points in order to qualify for Tier 2 General visa. Tier 2 applicants will also need to meet the English language requirements as well as the maintenance requirements. Tier 2 General applicants applying from outside the UK may also need overseas criminal record certificate.

Tier 2 General Applicant’s Prospective Salary

The Applicant need to be paid at least £30,000 per year or the appropriate rate fee for the job offered, whichever is higher, except where the applicant is a “new entrant”.

English Language Requirements for Tier 2 General Visa

  • The applicant scores 10 points for being a national of one of the English speaking Countries
  • or having completed UK Bachelors level qualification in one of the English Speaking countries
  • or having passed an approved English language test at CFER level B1
  • or having provided evidence of English language (equivalent to B1 or above) in another immigration application.

Maintenance Requirements in Tier 2 General Visa Applications

The Applicant must demonstrate that he/ she has access to at least £945 in their bank accounts for 90 days prior to the date of their Tier 2 General visa application. This requirement may also be met if the UK sponsor certifies the applicant for maintenance purposes when issuing Certificate of Sponsorship CoS.

Certificate of Sponsorship CoS

Once the sponsor [i.e. UK based licensed Employer] is allocated a sponsorship certificate CoS to employ an overseas national, based abroad or in the UK; they need to conduct the Resident Labour Market Test [if applicable] and issue CoS to the applicant. Tier 2 applicant is then required to make his entry clearance application or leave to remain if already in the UK and is able to switch.

Tier 2 Cooling Off Period  

The migrants, who had entry clearance or leave to remain as a Tier 2 G, are required to wait for at least 12 months, before they can apply for another term of employment upon completing their maximum allowable residence or leaving the UK earlier. This Tier 2 cooling off period is not applicable in certain cases.

Visa Duration for Tier 2 General Visa Applications

The maximum stay with a Tier 2 (General) visa in the UK is up to 5 years and 14 days, or the time given on the certificate of sponsorship plus 1 month, whichever is shorter.

Please note the Applicant can apply to extend the visa for up to another 5 years, as long as the total stay is not more than 6 years.

Dependents of Tier 2 General Visa

Tier 2 Migrants are allowed to invite their spouses / partners and children under 18 years of age to join them as their Tier 2 Dependents and they may also qualify for Tier 2 ILR upon completion of the required period of time. The dependents will be able to work in the UK.

Each Tier 2 Dependent must have access to at least £630 available to them at the time of their application, this is in addition to the £945 the applicant must have to support her/himself.

Refusal of Tier 2 General Entry Clearance

If the Tier 2 General visa entry clearance application is refused by the ECO (visa officer) in the overseas British Diplomatic post, the Tier 2 applicant will be given a right of Administrative Review AR of the decision that must be exercised within 28 days of the date of service of Tier 2 refusal decision. There will not be any general right of appeal against Tier 2 refusal decision made by the visa officer. If the Administrative Review AR against Tier 2 General Visa refusal also fails, the matter then can be taken to the UK Upper Tribunal by lodging Judicial Review proceedings to challenge Tier 2 refusal decision and Administrative Review.

Refusal of Leave to Remain as Tier 2 General Migrant

If the Tier 2 further leave to remain application is refused by the Home Office, the applicant is granted right of administrative review against the Tier 2 Refusal that must be exercised within 14 days of the date of service of decision. There will not be any general right of appeal against Tier 2 Refusal decision made by the Home office. If the administrative review AR against Tier 2 visa extension application also fails, the matter then can be taken to the Upper Tribunal by lodging judicial review proceedings against the Tier 2 leave to remain refusal and the Administrative Review.

SWITCHING TO TIER 2 GENERAL VISA

Who can for switching to Tier 2 General Visa?  

Following persons may apply to switch to Tier 2 General Visa:

  • Any Tier 1 – Main applicant (includes start up and innovator visa migrants)
  • Any Tier 2 – Main applicant (with the exception of Tier 2 ICT who had their leave granted under the rules in the place after 06 April 2011).
  • Any Tier 4 General migrant – provided he / she has completed at least Bachelor’s degree from a UK University.
  • Dependent partner of a Tier 4 student (provided the applicant is assigned a restricted COS)
  • Representative of an Overseas Business.
  • A Global Talent Migrant

TIER 2 GENERAL VISA EXTENSION APPLICATION

If your Tier 2 General visa is running out and your employer would like to extend your leave to remain as Tier 2 General Migrant, you will need to have a new Certificate of Sponsorship and will be able to apply for Tier 2 General Visa Extension (Tier 2 Leave to Remain) in line with the newly assigned Tier 2 Certificate of Sponsorship.

English Language Requirements for Extension of Tier 2 General Visa

The Tier 2 Migrants will not need to take any further English language tests for extension of their Tier 2 General visa, since they have already met this requirement in their initial Tier 2 visa application.

Maintenance Requirements for Tier 2 Visa Extension Application

The Tier 2 Migrant Applicant must demonstrate that he/ she has access to at least £945 in their bank accounts for 90 days prior to the date of their Tier 2 Visa extension application. This requirement may also be met if the sponsor certifies the applicant for maintenance purposes while issuing Certificate of Sponsorship CoS for Tier 2 Extension.

Resident Labour Market Test for Tier 2 General Extension Further Leave to Remain

The Employer does not need to conduct Resident Labour Market Test for Tier 2 General further leave to remain of their existing Tier 2 General Migrants.

Certificate of Sponsorship for Tier 2 Visa Extension Application

Once the sponsor [i.e. UK based licensed Employer] is allocated a sponsorship certificate to continue employing the Tier 2 Migrant, they need to issue to the applicant providing all the relevant details, and the applicant is then required to make his Tier 2 visa extension application.

Visa Duration for Tier 2 General Visa Applications

The maximum stay with a Tier 2 (General) visa in the UK is up to 5 years and 14 days, or the time given on the issued certificate of sponsorship plus 1 month, whichever is shorter.

Please note the Applicant can apply to extend the visa for up to another 5 years, as long as the total stay is not more than 6 years.

TIER 2 DEPENDENTS VISA EXTENSION

The Tier 2 dependents will also need to apply for Tier 2 Dependent visa extension of their PBS dependent visas in line with their main Tier 2 Migrants.

Each Tier 2 Dependent must have access to at least £630 available to them at the time of their application. This is in addition to the £945 the applicant must have to support her/himself.

TIER 2 GENERAL ILR INDEFINITE LEAVE TO REMAIN

The Tier 2 migrants may make their application for ILR upon completion of the required time period and compliance of all requirements for Tier 2 General Indefinite Leave to Remain in the UK.

From 6 April 2020 most Tier 2 visa immigrants from outside the European Economic Area (EEA) must be earning £36,200 or more to qualify for UK indefinite leave to remain as Tier 2 Migrants (also known as a Tier 2 Settlement), says the Home Office.

Minimum salary for ILR for Tier 2 General Migrants

At present, the minimum salary requirement for indefinite leave to remain ILR for Tier 2 General migrants is £36,200 a year.

From 6 April 2020 – £36,200;

From 6 April 2021 – £36,900.

The above requirements do not apply where the migrant was sponsored for a PhD level or a shortage occupation job.

Which Visas can be included to complete 5 years in order to qualify for ILR?

Applicants having current leave under Tier 2 (G) may also make use of their former residence under the following categories in complete 5 years for his ILR application purposes:

  1. Time spent as a Tier 1 Migrant, other than a Tier 1 (Post Study Work) Migrant or a Tier 1 (Graduate Entrepreneur) Migrant
  2. Time spent as a Tier 2 (General) Migrant, a Tier 2 (Minister of Religion) Migrant or a Tier 2 (Sportsperson) Migrant.
  • Time spent as a Representative of an Overseas Business
  1. Time spent as a Global Talent Migrant
  2. Time spent as a Tier 2 (Intra-Company Transfer) Migrant, provided the continuous period of 5 years spent lawfully in the UK includes a period of leave as:
  • a Tier 2 (Intra-Company Transfer) Migrant granted under the Rules in place before 6 April 2010, or
  • a Work Permit Holder, provided that the work permit was granted because the applicant was the subject of an Intra-Company Transfer.

Tier 2 Continued Employment

The Tier 2 ILR applicant will need to provide evidence of the continuity of his employment with the same terms and conditions in addition to the fact that he has successfully completed 5 years in the UK.

Time Duration for Tier 2 ILR Indefinite Leave to Remain in the UK

The Tier 2 General Migrant applicant will need to reside in the UK for at least 5 years which start from the date when he / she first entered the UK or first granted leave to remain. The Tier 2 Migrants can however make their ILR applications (SET O for Tier 2 Migrants) 28 days before completing their 5 years in the UK. If the Tie 2 Migrant applicants have delayed their first arrival in the UK for a maximum of 3 months, they may be able to commence their five years’ time period from the date of entry clearance instead of date of arrival.

English Language Knowledge for Tier 2 ILR Indefinite Leave to Remain in the UK

Tier 2 Migrant can prove English language requirements by having either:

  • an English qualification at B1, B2, C1 or C2 level
  • a degree taught or researched in English
  • national of an English-speaking country

The requirement of English Language knowledge is exempt in cases when applicants are aged 65 or over or is unable to due to disabilities or is a citizen of countries that are exempt from.

Life in the UK Test for Tier 2 ILR Indefinite Leave to Remain in the UK

Another important part of fulfilling the knowledge of language and life requires Tier 2 Migrants to pass the Life in the UK test to apply for Tier 2 ILR Indefinite Leave to Remain in the UK.

The test is required under the Nationality, Immigration and Asylum Act 2002 and taken in order to test the knowledge of British life and sufficient proficiency in the English language.

Tier 2 ILR Absences Allowed

The Home Office has become quite generous in allowing absence for maximum 6 months in a year, provided the applicant is able to provide evidence that such absences (if that long) were work related.

Refusal of Tier 2 Indefinite Leave to remain Application

If the Tier 2 Indefinite leave to remain application is refused by the Home Office, the Tier 2 General Migrant is to be given a right of administrative review of the Tier 2 ILR Refusal decision which that must be exercised within 14 days of the date of service of decision. There will not be any general right of appeal against Tier 2 ILR Refusal decision made by the Home Office. If the Tier 2 Administrative Review (Tier 2 AR) also fails, the ILR Refusal and the Administrative Refusal then can be taken to the Upper Tribunal by lodging judicial review proceedings.

ADMINISTRATIVE REVIEW TO CHALLENGE REFUSAL OF TIER 2 GENERAL VISA

Since appeal rights have been taken away from most of the immigration categories, the applicants whose Tier 2 General Visa entry clearance application or Tier 2 General leave to remain application is refused, they are given right of administrative review against the refusal of Tier 2 General Visa.

This is a procedure where the Tier 2 General applicant is given an opportunity to challenge the refusal of Tier 2 General Visa application by providing relevant arguments, or documents in some cases.

It is mandatory for the Home Office to give reasons of Tier 2 General refusal along with the notice of decision and to inform the applicant about their rights of administrative review against Tier 2 General refusal. The reasons of refusal shall disclose all the issues / concerns of the Home Office which have been identified by the immigration or Visa officer on the basis of the information / documents provided by the applicant or the information already held on record by the Home Office.

Time Limit to Make Tier 2 General Visa Administrative Review Application

The applicants are required to make Tier 2 General visa administrative review application within 14 calendar days to the Home Office (28 days from overseas). It is really important to meet the deadline as otherwise the Home Office may reject the application unless exceptional reasons for the delay are provided.

Grounds of Administrative Review for Tier 2 General Visa

One has to carefully consider and draft the grounds of Administrative Review for Tier 2 General Visa on which he or she may rely in their administrative review applications. This is an opportunity for the applicant to address all the concerns and issues raised in the notice of decision and the reasons of refusal of the immigration application. It would also be useful to refer to the information or the documents already provided with the said application and highlighting any relevant sections and provide a detailed explanation addressing the issues.

Drafting grounds of administrative review for Tier 2 General Visa refusal is a specialized area of immigration work and should therefore be left for the experts to handle it.

Outcome of Tier 2 General Visa Administrative Review

Once Tier 2 General Visa Administrative review is lodged, a different caseworker considers the grounds of Tier 2 General Visa administrative review and may make one of the following decisions:

    1. He may overturn the original decision and issue visa to the applicant.
    2. He may maintain the original decision along with all the reasons of refusal; or
    3. He may maintain the original decision of refusal but may decide to withdraw one or more reasons of refusal; or
    4. He may maintain the decision but with different or additional reasons to those specified in the decision under review.

Effect of Tier 2 General Visa Administration Review

The applicant’s leave to remain remains in place by virtue of paragraph 3C of the Immigration Act 1971, till the decision of the Tier 2 General Visa administrative review provided he had valid leave to remain prior to making the relevant immigration application. He will not be eligible to make a fresh application whilst the decision on the Administrative Review is pending.

Further Options

If the decision maker maintains the decision of Tier 2 General Visa application refusal, the applicant may make a fresh Tier 2 General Visa application within 14 days from the date of refusal of administrative review or may also lodge Judicial Review proceedings if it is considered that both the decision maker of the original application and of the Administrative review application made an error in the consideration of the said applications.

Again, it is extremely important to seek professional help in making decision whether to make a fresh Tier 2 General visa application or to proceed in the Judicial review against Tier 2 General Visa refusal or to choose both, depending on the individual’s circumstances.

JUDICIAL REVIEW APPLICATION FOR REFUSAL OF TIER 2 GENERAL VISA APPLICATION

A Judicial Review is a check and review procedure conducted by the Upper Tribunal (Immigration & Asylum Chambers) or the High court on the decisions made by the executive body (i.e. Home Office).

If the Home Office decides to maintain the decision of Tier 2 General Visa application refusal as a result of administrative review application, the applicant may lodge judicial review proceedings against the Tier 2 General Visa refusal. There is a 3 months’ time limit on bringing the Judicial Review proceedings against the refusal of Tier 2 General Visa application.

Pre-Action Protocol for Tier 2 General Visa refusal

Generally, the first step being a Pre-Action protocol letter is issued to the Home Office before initiating Tier 2 General Visa Judicial Review JR process in the Upper Tribunal (Immigration & Asylum Chambers).

It is really important to assess the details of the matter, analyze the merits and proceed most effectively in order to obtain relief. This is an opportunity given by the claimant to the litigation team of the Home Office to review the matter in the light of the representations or submissions made in the Pre-action protocol letter. We generally give 14 days of notice to the Home Office to respond to our Pre-action Protocol letter.

The most important thing is to identify the issues raised by the Home Office and to see whether a fair decision has been made in the light of the information or documents available. Our job is to address those issues effectively and make a good case for the litigation team to review the decision. We have been quite successful in persuading the litigation team of the Home Office in reconsidering the decision and a number of our clients did not need to go further in the Judicial Review process and were given relied just on the basis of the pre-action protocol letter.

Permission Application (on papers) – Grounds of Judicial Review for Tier 2 General Visa Refusal

If the Home Office Litigation Team refuses to overturn the decision, we shall then lodge JR review permission application in the Upper Tribunal by preparing grounds of Judicial review for Tier 2 General visa refusal.

Time to Lodge JR Application – Tier 2 General Refusal

The deadline to lodge Judicial Review Permission application is 3 months from the date of the refusal of Tier 2 General Visa Application.

Grounds of Judicial Review – Tier 2 General Visa Refusal

One has to carefully consider and draft the grounds on which he or she may rely in their permission application for Judicial review to the Upper Tribunal against the refusal of Tier 2 General Visa Application. The main point here is to identify an error of law in the notice of refusal of Tier 2 General Visa application. It needs to be assessed whether the visa officer (ECO) has made a fair decision in the light of the relevant law, rules or regulations with reference to the decisions of the superior courts. It requires a wealth of expertise and experience to draft good grounds in such matters enhancing the chances of success.

Once Judicial Review against refusal of Tier 2 General application is lodged, the Respondent i.e. the Secretary of State for Home Department has 6 weeks to file “Acknowledgment of Service” along with the grounds of defence. The Upper Tribunal taking account of arguments and documents presented by both parties, makes a decision.

The Upper Tribunal may take one of the following actions:

  • Grant permission for Judicial Review on all grounds against the refusal of Tier 2 General Visa Application
  • Grant permission for Judicial Review on one or more grounds
  • Refuse permission for Judicial Review

Whatever stage we come on board, we make sure to work in the best interests of our clients and have successfully represented many of our clients in such matters.

Why to instruct Chauhan Solicitors to advise you on your Tier 2 General Visa Application, Tier 2 General Visa Refusal and Tier 2 General ILR

We are a city law firm, specialising in UK Immigration matters. We are located in Central London, therefore conveniently accessible to Londoners and clients in other parts of the UK. Moreover, since all the UK immigration Applications can be submitted online, it has become easier for us to take instructions from anywhere in the world. We have been advising our clients successfully on their Tier 2 General Visa Applications.

 

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