UK Tier 2 Visa Refusal Reasons: Can you Challenge the Home Office’s Decision?
A refused Tier 2 visa is a huge set back for both the individual applicant and their prospective employer. As a highly involved and lengthy process, demanding investment by both parties, the Tier 2 visa route is rarely entered into lightly. Yet applications continue to be refused.
This is perhaps unsurprising given the Government’s pledge to reduce net migration, which correlates with stringent Home Office visa processing. Against this backdrop, sponsor licence holders and Tier 2 visa applicants should make every effort to ensure they are meeting all of the relevant Tier 2 visa eligibility criteria and following the application process to the letter to avoid falling foul of the rules.
What can you do if you or a potential employee’s Tier 2 visa application has been refused?
Invalid applications are different from refusals
The first thing to note is that an application returned as invalid is not in itself a refusal. Applications are deemed invalid for a number of reasons, for example:
- Non-payment of fee
- Payment of incorrect fee
- Form is not signed
- Accompanying photos are not in the required format
Invalid applications will delay decision making. This can result in issues where the applicant’s leave to remain is due to expire, and any delay will in all likelihood results them overstaying. This can leave few options open to the applicant.
Grounds for Tier 2 visa refusal
The Home Office refusal letter will detail the specific Tier 2 Visa Refusal Reasons. Some of the more common grounds include:
- Incorrect SOC code for the proposed job – Assigning the correct SOC code is not always straightforward, but is critical to ensuring a successful Tier 2 visa application.
- Supporting documentation is incomplete or insufficient – Omissions or incorrect format of documents can form the basis of a refused visa. It pays to get your supporting evidence right.
- Errors in the application form – Issues with the information provided in the form itself can provide sufficient grounds to deny the application. Check and double check before you submit.
- Insufficient maintenance funds – You will need to show you have access to sufficient funds to maintain yourself while in the UK and that you will not need recourse to public funds.
- Resident Labour Market Test – Employers must meet the RLMT in order to hire a Tier 2 worker, unless the role features on the Shortage Occupation List at the time of recruiting.
- No Certificate of Sponsorship has been allocated – Tier 2 employees have to be allocated the relevant Certificate of Sponsorship. Note that CoS are not transferrable between individuals or roles.
- Salary level too low – The Tier 2 role must command a salary that meets the prevailing minimum salary threshold.
- Applicant has a poor immigration history – In addition meeting the Tier 2 visa criteria, applicants will also have to pass general grounds for clearance such as the good character requirement.
Can you appeal a refused Tier 2 visa application?
The right to appeal under UK immigration rules has been heavily eroded in recent years. Now, you may only be permitted to appeal an immigration decision if you applied for UK leave to remain as a Tier 1, 2 or 5 migrant or family member before 2 March 2015 and your application was refused on or after 6 April 2015.
The Home Office will specify in its refusal letter if there is recourse to challenge the decision. Depending on the grounds for refusal and the wider circumstances, you may also consider making a new application before current leave expires.
There are restricted types of appeals that you can lodge in respect of points-based visas, for example if you can show there are human rights grounds.
Pay careful attention to the date when the refusal note was issued as you have 10 days from that date to lodge an appeal if refused within the UK.
Out of country applications under PBS may attract a right to judicial or administrative review. This involves another immigration officer reviewing the same submission and information, but no right to appeal. It relies on the original decision having been incorrect for example due to miscalculation of points or misapplying the immigration rules to the application.
If administrative review is open to you, a strict time limit will apply of 28 days from the date of the refusal letter. By this date, you must have lodged your appeal,
Your submission will need to address in detail each of the grounds of refusal stated in the refusal letter and articulate the basis on which you are requesting the review, for example where you can show the immigration rules have been misapplied to your application. You will otherwise not be permitted to submit new evidence or documents, unless the court specifically allows or requests this.
If your administrative review is refused, your final recourse will be judicial review. This is a highly complex area and you are advised to take advice on your options.
A refused application will require a swift response – whether to challenge or seek alternative options.
Do you have a question about Tier 2 Visa Refusal Reasons?
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.
DavidsonMorris are highly experienced in all aspects of the Tier 2 visa and other classes of PBS visa, from initial Home Office applications through to challenging UKVI decision making.
If you have a question about a Tier 2 visa for you or a prospective employee, contact us.