Help Required - Refusal for family settlement visa

[hg19]

Hello everyone,

My wife's and daughter's "Family of Settled Person" has just been refused and I'm looking for some advice on next steps and how to go about them.

Current Situation:

Initial visa applications:
First Entry: Oct 2010 - Tier 2 ICT
Self Visa (Tier 1 General) - June 2011 - Expiry June 2013
Got married Dec 2012
Spouse Visa (Tier 1 General Partner) - December 2012 - Expiry June 2013 (First travelled to UK in January 2013 and has been living with me ever since till May 2016 when they travelled to india for a wedding)

Visa Renewal:
Self Visa (Tier 1 General) - June 2013 - Expiry June 2016
Spouse Visa (Tier 1 General Partner) - June 2013 - Expiry June 2016

Daughter Born in the UK - Oct 2015

Self ILR - May 2016
Spouse's and Daughter's Visa rejected while wife and daughter travelled to India for a wedding in May 2016.

Reasons for Refusal including our explanation and updates
1. "Failed to provide husband’s ILR"
Our Explanation - We didn’t have the ILR card or number in hand which is why we couldn’t add this document. The delay was from home office side.
We can’t expect them to check my visa status in their system? We provided all my details, it’s just a matter of putting my name in!
Updates - Nevertheless, we have the ILR card now and can supply a copy.

2. "Failed to provide a medical report"
Our Explanation - Wife had supplied the medical report when she applied for the visa the first time in 2013 and she’s already been granted visa multiple times (2012 and 2013) and has also travelled multiple times. She shouldn’t be required to submit this again, right?
Updates - We have obtained a new TB certificate now and can supply this.

3. "Failed to provide sponsor’s employment and finances"
Our Explanation - We attached a copy of a letter from my employer here in the UK, 3 months’ payslip and 3 months’ bank statement (Mar, Apr and May 2016). We couldn’t supply 6 months’ of information because the original documents were with the home office along with my ILR card which we got back only on 2nd July.
We can’t even expect them to check in their system that I provided 12 months’ payslips with the recent ILR application? I don’t understand what do they expect to see in 6 month’s payslips that they can’t see in 3 months’ payslips?
Updates - We have original letters, payslip and bank statements now and can supply this.

4. "Not exempt from English language – failed to provide original degree certificate"
Our Explanation - We provided a copy of wife’s educational qualification which she obtained while studying in the UK (M.Sc. In HRM from Robert Gordon University, Aberdeen) because the original was with us here in the UK.
Who expects someone to travel with their educational qualifications every time they travel?
Updates - We have the original mark-sheet and can supply this now.


We have been given the right to appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002.

Looking at the situation, can you all guide us how to proceed with the appeal, what are the chances of appeal getting successful and decision being overturned and what are the timelines that I should be looking at?

Moderator: Kindly move the post to correct category if this is not the right place.

Many thanks in advance!
Harsh

[CR001]

On what basis did you obtain ILR - 5 years Tier 1 or 10 years long residence?

1. Did you include your ILR letter with the spouse visa application or did you only provide your details?? Don't ever assume that the ECO will check with HO in the UK. You/applicant has to provide everything and for a spouse settlement visa, you have to provide evidence of ILR. When you say delay was from HO side, don't confuse an in country ILR application with the strict process of entry clearance from abroad. You should have waited until you had what you needed.

2. Yes, she needs to provide it each time.

3. The requirement for a spouse settlement visa is to provide 6 months payslips and 6 months bank statements. It is not for HO to contact the ILR department to get your documents. It is your/applicants responsibility to provide ALL the documents with the application. The rules and form are very clear on this aspect and it is not for you to question what HO want to see or not, you must provide what they ask for. Again, don't confuse the ILR application with the process for entry clearance. It is not the ECO's responsibility to chase and search for your documents on an application you submitted in the UK.

4. HO don't accept copies, you have to submit the original degree. You could of course have couriered it to your spouse.

How do you think an appeal will succeed, which can take many many months, when the applicant failed to provide the documents above which are mandatory requirements for a settlement visa?

[hg19]

On what basis did you obtain ILR - 5 years Tier 1 or 10 years long residence?

It was on the basis of 5 years Tier 1 - General

1. Did you include your ILR letter with the spouse visa application or did you only provide your details?? Don't ever assume that the ECO will check with HO in the UK. You/applicant has to provide everything and for a spouse settlement visa, you have to provide evidence of ILR. When you say delay was from HO side, don't confuse an in country ILR application with the strict process of entry clearance from abroad. You should have waited until you had what you needed.

We only provided the details because we had not got either the letter or the ILR card by the time the application had to be submitted. Our travel date was 21st July and since the settlement visa process takes time we had to submit the application before we could get all the documents.
We checked with the helpline of the HO here in the UK and they advised that we can submit the application without the ILR details and the ECO will be able to find out my details in the system.

3. The requirement for a spouse settlement visa is to provide 6 months payslips and 6 months bank statements. It is not for HO to contact the ILR department to get your documents. It is your/applicants responsibility to provide ALL the documents with the application. The rules and form are very clear on this aspect and it is not for you to question what HO want to see or not, you must provide what they ask for. Again, don't confuse the ILR application with the process for entry clearance. It is not the ECO's responsibility to chase and search for your documents on an application you submitted in the UK.

The ECO also works for the HO, right? If the documents are with the HO, and they haven't sent it back for 2 months, even then we are responsible?
We checked with the helpline of the HO here in the UK and they advised that we can submit the application with all the available documents and explain in the letter which is what we did. They also confirmed that ECOs have access to the central system and can check my ILR approval record, if they are not satisfied with all the available documentation.

4. HO don't accept copies, you have to submit the original degree. You could of course have couriered it to your spouse.

In hindsight, yes we could've couriered the documents. I accept this.

How do you think an appeal will succeed, which can take many many months, when the applicant failed to provide the documents above which are mandatory requirements for a settlement visa?

The grounds of appeal will have to be that the required documents wwere with the Home Office when the application was submitted and the helpline had advised us to send the application in any case. The documents were with the Home Office for a much longer time than the prescribed time limit of 15 working days and we didn't get our documents back for 2 months, which is when we thought that we might not get the documents back (as advised again by the helpline)

The other ground of appeal is that we have all the documents available now as required by the ECO.

Thoughts?

[physicskate]

It sounds like this application was not planned. Didn't you look at visa expiry dates before your spouse went abroad for a wedding?? Submit a new application and supply all required docs.

[vinny]

Note also that wife's qualifying period for SET(M) may be reset. It was a very expensive wedding.

[hg19]

It sounds like this application was not planned. Didn't you look at visa expiry dates before your spouse went abroad for a wedding?? Submit a new application and supply all required docs.

We knew about the visa expiration date and we planned to apply for her visa as soon as I got my ILR. Since there was a delay in getting the ILR for me (again from the HO side), her visa got expired while in India, which is when we started the new application. We waited as long as we could to get my documents and ILR card from HO and submit her application, but when all hopes were lost to get the original documents from the HO and after having a conversation with the helpline, we had to go ahead with the application.

[noajthan]

Suggest you take these types of applications far more seriously.
It is up to the applicant to produce the appropriate supporting documentation in the appropriate format eg originals.

Not providing something because it was provided before or because its not convenient (etc etc) clearly does not fly as the caseworker is not going to join the dots, fill in the gaps and give you benefit of doubt.
Relying on an old medical report is not going to stand up.
And its your responsibility to keep the necessary documents to hand.

It is shortsighted and foolhardy to place a loved one's future at jeopardy by not following the basics and fulfilling the basic requirements.
Logic and common sense do not apply here, just follow the requirements to the letter.
The HO is not going to work around you.

Its unclear on what grounds you could appeal as its not obvious HO failed in administrative procedures in this case.

Finally do not rely on verbal advice from telephone helpline. Ever.
Advisors are not reliable, not accountable and you have no redress for poor decisions taken.
Ref https://www.freemovement.org.uk/immigra ... pectation/

[hg19]

Note also that wife's qualifying period for SET(M) may be reset. It was a very expensive wedding.

Definitely a VERY expensive one! Her qualifying period will get rest by end of August, which is why we are thinking of sending an appeal asap.

[hg19]

So my question to all fo you:

Do you think that there's a chance of appeal getting successful, now that we have all the required documents in original and as mentioned in the Refusal letter?
Any pointers to include in the appeal will be really helpful and highly appreciated.

[vinny]

If her PBS dependant leave has expired, then she has to change category to be a spouse of a settled person. This results in her qualifying period for SET(M) being reset.

[hg19]

If her PBS dependant leave has expired, then she has to change category to be a spouse of a settled person. This results in her qualifying period for SET(M) being reset.

Yes we understand that. I guess we'll have no option but to continue with renewal of family of settled person visa whenever the current visa (if she gets it) expires.

[vinny]

However, your UK-born child is entitled to register as a British citizen.

[physicskate]

So my question to all fo you:

Do you think that there's a chance of appeal getting successful, .

Zero. And now your wife is (over) 5 years away from ILR...

Honestly, save yourself time and the heartache and reapply using all of the docs they require.

[hg19]

However, your UK-born child is entitled to register as a British citizen.

Yes, we understand that. We've got her indian passport for now because she wasn't eligible to register as British citizen when she was born as I didn't have an ILR at that time, but she can be registered now.

[hg19]

So my question to all fo you:

Do you think that there's a chance of appeal getting successful, .

Zero. And now your wife is (over) 5 years away from ILR...

Honestly, save yourself time and the heartache and reapply using all of the docs they require.

We're not even discussing an ILR for her now. That's out of the picture!
For her appeal, even when we have all the required documents as mentioned by the ECO and the fact that there was procedural delay from the Home Office still doesn't qualify as an appeal that can be successful?
They will not consider it on humanitarian grounds that our family is split apart right now? They won't even consider the fact that she's been here for the past 3 years now as my partner??

[physicskate]

We're not even discussing an ILR for her now. That's out of the picture!
For her appeal, even when we have all the required documents as mentioned by the ECO and the fact that there was procedural delay from the Home Office still doesn't qualify as an appeal that can be successful?
They will not consider it on humanitarian grounds that our family is split apart right now? They won't even consider the fact that she's been here for the past 3 years now as my partner??

Reapplying will likely be faster, thus the argument of separating a family (btw they have suggested to others that a family unit can be maintained over Skype) won't hold water. You didn't supply the required docs, it doesn't matter why not. You should have waited to apply until you had all the documents.

[Casa]

An appeal on humanitarian grounds won't succeed as the consideration will be that you can join your wife in India and continue your family life there together.