Our client Another Co UK Ltd wished to employ an applicant on a full time basis. Below is extract of the witness statement prepared by the HR manager in preparation for the court hearing.
In brief, the company assigned the wrong Code of Practice, a very easy mistake to make. Instead of the caseworker at the UK Border Agency contacting them to advise them of their mistake and affording them an opportunity to rectify it, they refused it outright.
We were instructed to prepare the appeal bundles and the statement below was submitted along with a volume of evidence to support the company’s appeal.
Yesterday, the Presenting Officer who represents the UK Border Agency at the appeal stage contacted us to advise that they were withdrawing the decision to refuse as it was clearly evident that there was a simple mistake of fact and the company should not have been refused.
As you can appreciate, everybody involved is delighted. Going to court is an expensive and very stressful business. If your company’s application has been refused, feel free to contact us to discuss.
HR Manager’s Statement
Mr An Other joined Co Ltd in May 2010 as an Intern working in our Industrial Services team. An Other showed a lot of promise during his internship and in October 2010, he was offered a full-time position as an Applications Engineer.
When An Other joined Co Ltd, he held a Tier 1 (Post Study) visa that allowed him to work in theUKwithout any restrictions. That visa was valid until 21 January 2012. It was agreed between the company and An Other that if he performed well in his role, Co Ltd would take steps to secure him a work permit to allow him to continue working in theUKbeyond January 2012.
An Other excelled in his role and quickly became a valued member of the team. As an Applications Engineer, An Other plays an important role to provide technical and operational support to his Account Managers as well as a technical support and training role towards our Industrial Software clients. Training is still on-going as the software packages are constantly being developed.
In October 2011, our Managing Director, Mr H, decided that he wished to continue to employ An Other beyond the expiry date of his visa and requested that I look into the steps required to obtain a work permit.
Prior to this, Co Ltd UK Ltd had never sponsored a migrant worker to my knowledge. I had not had any previous experience with the work permit system, nor had any of my colleagues. An Other and I began to research the Tier 2 Sponsor Licence requirements as listed on the UK Border Agency website. We understood that the company would need to apply for a sponsor licence, and if granted, we would be able to issue a certificate of sponsorship in support of An Other’s visa application. Based on our reading of the rules, we understood that to qualify for a Tier 2 visa, we would need to show that An Other would be working in a skilled role and that he would be paid at or above £20,000 per year. The UK Border Agency’s website made the application process seem relatively straightforward, so we did not feel the need to seek specialist legal advice.
After reading the UK Border Agency’s instructions on how to apply for a sponsors licence, we gathered the required company documents, completed the online form and submitted the documents to the UKBA.
I was pleased when the sponsor licence was granted on 2nd December 2011, only 5 days after we submitted the application. Co Ltd’s licence was given an A-Rating, which I understand means that the UKBA considers us to be a low-risk employer. Given the ease in which we were able to secure a sponsors licence, An Other and I felt confident that we would be able to prepare his certificate of sponsorship and visa application and we did not feel the need to seek the assistance of an immigration lawyer.
After being listed as a Level 1 User, I was able to log on to the Sponsorship Management System and prepare the certificate of sponsorship in support of An Other’s Tier 2 application. On the certificate, I was required to identify the “Job type”. This is done by selecting one of hundreds of “job types” listed in a drop-down menu option. These job types correspond to the occupation codes listed in the codes of practice on the UKBA website. An Other and I had reviewed the occupation codes prior to assigning the certificate. We noted that a number of occupation codes were relevant to his role, particularly “2127 Production and process engineers” and “2126 Design and development engineers”. While the job description for “2127 Production and process engineers” best matched An Other’s role as Applications Engineer, we felt that the job description for “2126 Design and development engineers” best described Co Ltd’s business operations as a whole. We did not realise that each SOC code carried a different minimum salary requirement.
In the end, we decided to select job type “2126 Design and development engineers”. We also included a brief job description and detailed An Other’s salary of £23,000 plus his bonuses of £3,225. Assuming that this would satisfy the requirements, I issued the certificate of sponsorship on 11 January 2012 and An Other submitted his Tier 2 application to the UK Border Agency shortly thereafter.
I was shocked to find that An Other’s visa application was refused in April 2012. I understand that the application was refused due to An Other’s salary not meeting the minimum requirements for SOC code “2126 Engineers, design and development”.
Having reviewed the certificate, I see now that we should have used the job type which best matched An Other’s role, which is “2127 Production and process engineers”. The example job tasks listed under 2127, “devises production control methods to monitor operational efficiency” and “devises production control methods to monitor operational efficiency” best describe An Other’s primary responsibilities. While An Other is required to act as a liaison between the company and client’s Design Engineers, his main role would fall under a production or process engineer occupation code.
I did not realise the importance of using code 2127 over 2126 at the time of assigning the certificate of sponsorship. I understand now that each code has its own minimum salary requirement and that if that is not met, then the application would be refused. I understand that if the correct code of 2127 had been listed on theCOS, An Other would have satisfied the minimum salary requirements and that his application would have been approved.
I am shocked that as a result of a simple error, An Other and his wife may now be forced to leave the UK. Whilst we may have made a mistake I consider that we are well-intentioned employers who have tried to navigate the rules with the best intentions but have made errors along the way.
An Other is a valued employee and we do not want to lose him. We have had considerable difficulty recruiting suitably skilled workers for similar engineering roles and to lose An Other at this point would be very disruptive. We would not have proceeded down the sponsorship route for An Other had it not been in the best interests of the company.
We request that An Other is granted leave in this capacity so that he may continue his work at Co Ltd UK Ltd.
I hereby declare that this statement is a true version of events and circumstances to the best of my knowledge.