i am looking for a solicitor who's experienced in visa refusal appeals. i had applied for tier 2 general work visa, my sponsor already has sponsorship license and certificate. Home office refused the visa stating they were not convinced that the employer wanted to hire me, without stating the reason for their assumption so i went to AR where we found out that they based their entire decision on a single statement from the over the phone interview which was completely misquoted, their decision is primarily based on something that i simply did not say. i have been travelling to uk since 1999, had multiple leaves to stay in uk, including 2 student visas and a 2 years PSW(post study work) and still have a 10 years multiple visit visa which i have not used in the last 3 years and is still valid. i was wondering if home office has voice recordings of the tier 2 visa interviews conducted over the phone, not the written transcript but the actual voice recording. regards
We write further to your immigration enquiry received by email.
You are not entitled to appeal the decision of the Home Office in which they refused your Tier 2 application. However, you are entitled to challenge the impugned decision by way of a Judicial Review application.
A Judicial Review application is an application asking that the Upper Tribunal (acting as the High Court in immigration applications) find that the decision of the Home Office is unlawful and therefore be quashed as well as seeking an Order that the Home Office issue a new decision.
However, before an application for Judicial Review can be submitted, we must first negotiate with the Home Office to see whether or not they are willing to settle in a manner which we agree without the need for legal proceedings. This is know as the 'Pre-Action Protocol' and the letter may also be referred to as a ‘Letter Before Action’ or ‘Letter Before Claim’. What this means is that we will need to send the Home Office detailed submissions as to why they should reconsider their decision.
Should the Home Office not agree or if they do not respond, than we can we file an application for Judicial Review before the Upper Tribunal. The statutory limitation period for an application for Judicial Review is 'promptly' and in all cases within 3 months.
We will also need to serve a copy of the application on the Home Office's solicitors - the Government Legal Department. Upon receipt of the application they have 28 days in order to file and serve a response known as an 'Acknowledgement of Service'. This response can be-
1. They do not oppose the claim - if this is the case than it is likely that they will invite us to withdraw the Judicial Review application via a 'Consent Order'. This Order will set out the terms of the withdrawal, However, the Order must first be approved by the Upper Tribunal but this is normally a formality. 2. They oppose the claim in part - they will explain which element of the claim they do not accept and provide summary grounds of defence as to why. 3. They oppose the claim in full - in this instance, summary grounds of defence will be filed and served to explain.
Please note that the Upper Tribunal have confirmed through case law that so long as the Acknowledgement of Service is filed and served within 56 days they will accept those documents. However, should these documents be served outside of the 56 days, very exceptional reasons will need to be advanced by the Government Legal Department in order for the Upper Tribunal to accept it out of time.
Once the Acknowledgement of Service has been served and assuming that they oppose the claim, the papers will go to an Upper Tribunal Judge for a decision on the issue of whether or not to grant 'permission'. At this stage, the Judge will be considering whether or not there are arguable grounds that the decision is unlawful and is often described as a 'filtering process'.
The key issue should any proceedings be initiated is whether or not the vacancy you applied for is a ‘genuine vacancy’. Your instructions are that they have based their refusal on a telephone interview which was conducted as part of your application. Your proposal in your enquiry in obtaining evidence of the interview is a very sensible one. Within the Pre-Action Protocol stage or as part of a specific application for disclosure made before the Upper Tribunal, we can request the transcript of the telephone interview as well as enquire whether or not a recording of the telephone interview exist.
We will be happy to take further instructions from you and advise you further in regards to the merits of any legal proceedings against the Home Office, so please do not hesitate to contact us.
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