Insufficient Funds for Spouse Visa

[sMinty]

I'm now getting very worried. My wife (American) has to leave the UK in a few days to apply for her spouse visa from the USA, as she has now overstayed her student visa. The massive problem is a viscous circle of financial issues.

With savings and current funds, and my upcoming pay at the end of November, we have just about enough to get her to the USA, pay for the Visa application, keep paying rent for one month for our flat and pay one-month's council tax as well. However, she will have to leave her job (paying roughly £1000 a month after tax) to go to America. She's going to plead with them to reserve a place for her at work, but if they will do that remains to be seen.

I've just started a new job, earning about £800 a month after tax.

Rent is £650 per month, and council tax, because of big administrative mess-ups, will be £400 a month from December, for four months (that basically covers 2 years worth of unpaid tax in four months. The reason for this is our part-exemption as we were both students for a large amount of the time for which we are being charged, and our uni is faffing about in helping us prove it. Different story, anyway.)

So that's £1050 a month we need to pay, plus we need to be earning another £100.95 to cover ourselves for maintenance. If she leaves to apply from the USA, her income is lost, and all I can prove is that she has been earning £1000p/m (with payslips and bank statements) and I will be earning £800p/m (with my employment contract and/or letters from my employer).

Looking around the web, it seems that £3000 or more (not borrowed from relatives or friends) is considered generally enough to convince the UKBA of your ability to support yourself, and we don't have nearly that much. What we do have will all be spent on sorting this mess out.

It seems like this visa application from the USA is exactly the financial drain that will result in its rejection.

Any help? Any hope?
Thanks.

[sMinty]

Note: She is going to speak to her employer tomorrow to see if she can secure some kind of temporary contract suspension. I'm not sure if such a thing exists, but it will protect both my wife and her employer from getting into trouble for her working without a valid visa. My wife could then use the contract as proof of continued employment upon her return, which should hopefully satisfy the UKBA that we will be earning more than enough to cover ourselves.

The employer's personal decision aside, is this a realistic idea to get her application approved?

[Casa]

How has she been earning £1,000 a month after tax on a student visa..or have I misunderstood something here? That's around £17,000 a year.

[sMinty]

She received permission from the home office to work full-time outside of her studies (between semesters/academic years, at Christmas, after her studies finished). Whilst studying, she worked less than 20 hours a week.

[Casa]

Except for the fact that she was working after her visa expired??

[sMinty]

No, her visa has been expired since yesterday (1st November) when she was not working. She was due to work today but went in to explain the situation to her employer and they have agreed to suspend her contract (so she is officially not working for or being paid by them for any work on or after the 1st of November) and they will re-instate her contract when she returns. The only fact that may be held against us is her overstaying, however, she is returning to the USA within the 28-day period allowed for her overstay to be overlooked when she applies from the USA. Other than that, she has broken no laws, be they immigration or other.

The question here is if her proof of due employment (as stated in a letter from her employer), and my proof of very recent employment (as stated in a letter from my employer) will be accepted as proof of our ability to support ourselves financially, rather than payslips/bank statements (which she has, but I do not).

Thoughts?

[Casa]

The overstay shouldn't go against her, and a written offer of employment should strengthen the application.

[ginoT]

don't hold me to ransom on this, but if you're already married and you've missed the end of her visa to apply for the FLR(M) application, you still might have some time. Read my post on 28 days grace here

double check with others including on this forum + by contact solicitors for some "free advice" through takelegaladvice.com

you'll be playing with fire using my approach, but it'll be cheaper + you won't be apart and when you apply from abroad the HO have you by the balls

best of luck

[Casa]

Regarding a FLR application...when did your wife last attend studies?

[sMinty]

Thanks for the advice ginoT; she's still going to apply from abroad because although it will be much cheaper for her to stay and apply here, if the appication is rejected, then we won't be able to afford for her to re-apply from USA for a long while. Too risky.
Plus, if the application isn't accepted/rejected within the 28 day grace period, she will have overstayed long enough to be ordered out of the country and (I believe) banned from the UK for one year. Not too sure if that's right, but we certainly can't risk it.

Thanks all the same!

Casa, thinking it through, you're probably right. If they do refuse on the grounds of our inability to prove that we will be able to support ourselves (if they don't accept letters from employers because it's not 'procedure'), then I think we'll have a strong case for appeal.

To answer your question, Casa, she last attended studies in May or June this year. Her final deadline was certainly no later than mid-June. Why do you ask? Do you think it'll affect our application in any way?

[ginoT]

sMinty - probably a wise decision although if you apply withing 28 days and it is rejected AFTER the 28days (even if you get a response 6months later), you still will be able to appeal and no deportation proceedings apply. You might have to kick up a fuss though as the HO aren't very friendly with this type of situation and the whole thing could potentially drag itself out for months so the application from the States is gonna be quicker for sure. There is a risk tho, if it is rejected from the US, she's stuck out there, you over here and the appeal lodged from overseas can take up to 9 months to be heard + the wait of actually getting the visa we're talking like almost a year before she gets back (worst case scenario). Likely not to happen tho, but you should be aware of the risks

all the best

[meats]

sMinty - probably a wise decision although if you apply withing 28 days and it is rejected AFTER the 28days (even if you get a response 6months later), you still will be able to appeal and no deportation proceedings apply.

If she applies after her student visa has expired, which she would be doing, then there is no right of appeal in country. They've made the best decision in applying from the States.

[ginoT]

well, they might have to do the JR route but I'm guessing it's not everyone's cup of tea

can you clarify 320 (7B) (i) for us all in that case?

Anyway, I know of people applying shortly after their visa's expiry and getting it. Safer to go back, but major hassle - either way there is risk

[meats]

well, they might have to do the JR route but I'm guessing it's not everyone's cup of tea

can you clarify 320 (7B) (i) for us all in that case?

Can you clarify where it says that you can appeal a refusal if the application was made after your visa has expired.

[ginoT]

meats - you kind of win on this. There is no right of appeal, but they can't reject the application purely on the basis that it was made after the visa's expiry/out of time.

If the application is otherwise in tiptop shape, then there should be no reason to reject the application. If the HO make up some reason which is clealy not true or does not correspond to the docs sent, you can challenge them in a JR. You'll need deep pockets for this so it's not to everyone's taste - as such the majority of people, as in this case, will give up their jobs, travel half way around the world, etc etc all for the wants of bureaucracy for no real benefit to anyone incl the HO.

Anyway, we've already had our little difference of opinion on this, haven't we? so don't make another scene

[meats]

meats - you kind of win on this. There is no right of appeal, but they can't reject the application purely the basis that it was made after the visa's expiry.

Well they can reject it based on it being submitted after the visa has expired, you only have to read this forum to see that people have submitted their application a day late and it's been rejected for that reason alone. Whether that's right or wrong is another matter altogether and one that's not worth going into on this thread as the OP has already made up their mind.

If the application is otherwise in tiptop shape, then there should be no reason to reject the application. If the HO make up some reason which is clealy not true or does not correspond to the docs sent, you can challenge them in a JR. You'll need deep pockets for this so it's not to everyone's taste - as such the majority of people, as in this case, will give up their jobs, travel half way around the world, etc etc all for the wants of bureaucracy for no real benefit to anyone incl the HO.

I'm sure we'll both agree that the people working for the HO both at home and abroad are, on the main, incompetent. You can have a water tight case and they'll reject it for one reason or another yet the next person could have the weakest case ever and their visa will be approved. I have never worked for the HO, but before i went travelling i temped at the Rural Payments Agency. Their horror stories are quite easy to find and having worked there i can see why quite a lot of farmers committed suicide.

Anyway, we've already had our little difference of opinion on this, haven't we? so don't make another scene

No intentions of unless it's necessary, in this case it definitely isn't.

[sMinty]

We asked the Immigration Enquiries Bureau and they said the same about getting no right to appeal if her FLR(M) application is rejected. Personally, I think that it's disgusting that they can take away someone's right to appeal. Unfortunately, though, they make the rules.

A JR is most certainly not happening. Our pockets our deep enough to sort this out from USA, and no deeper, which is why we can't afford an application rejection for any reason. E-mailed the American partner organisation of UKBA today to ask about the employment-letters thing. Now to wait and see...

[meats]

We asked the Immigration Enquiries Bureau and they said the same about getting no right to appeal if her FLR(M) application is rejected. Personally, I think that it's disgusting that they can take away someone's right to appeal. Unfortunately, though, they make the rules.

If you apply after your initial visa has expired then the no appeal option is correct in my opinion. What i find disgusting mind is that UK citizens have to pay fees to bring their partners here in the first place.

[Casa]

The reason I asked about when your wife's study ended is due to the suggestion that she apply for FLR(M)..switching from student. It's generally difficult to switch from within the UK if she has ceased attending (or ended) her course.
One other question. Did you marry in the UK? If so, was this with a COA from the Home Office? I don't think this has been asked, but is important...you're both over 21?
If the US was exempt from Spouse settlement fees...what about Australia, New Zealand, Canada...etc?