Settlement Refusal - Cannot Believe This!

[caledonia]

Hello folks,

A while ago - prob about March time I had posted a query about the fact the guy I am renting my flat out to was applying for settlement to the UK for his wife and daughter and he was worried the tenancy agreement I was providing wasn't sufficient.

I live in Scotland, he lives in Scotland therefore the tenancy agreement I provided was a Scottish Short Assured tenancy which is the standard issued in Scotland. It lasts for six months and then is on a rolling monthly basis thereafter.

He provided the original tenancy agreement, a letter from me confirming this was the NORM IN SCOTLAND and other documentation to that effect ( I think I povided a print off from the Local Authority) and he also had an Independant Agent confirm the size of the house and the basis on which it was let was the norm in Scotland. My letter clealry stated that as I had no intention in the near future of giving him notice and that it was a rolling tenancy after the initial six months!

Now surely, what with it being the UK embassy - they should at least have some familiarity with the housing regulations all over the UK.

Well this is the reason given on the refusal letter received today and I am feeling awful as I assured him they would know their stuff

" You have submitted a tenancy agreement dated 24/08/2009 as evidence of your arranged accomodation in the UK. The agreement ran for a period of six months and has now expired. Furthermore, the tenancy agreement expired prior to your settlement application dated 26/03/2010. You have provided no further evidence that this accomodation is available to you. I am not satisfied that it gives a true and accurate reflection of the accomodation you claim is arranged for you in the UK. Therefore on the balance of probabilities I am not satisfied that you will be adequately accomodated without recourse to public funds. "

UNBELIEVABLE!!!

A few points

1) - The tenancy actually started on 01/09/2009 but was signed the 24/08/2009 as you need to give a weeks notice in Scotland for a Short Secure Tenancy - glad they bother to read them properly!!

2) I provided a letter dated 10th of February as the landlord clearly stating that this accomodation was available to them for the foreseeable future and certainly well beyond the initial six month period.

3) I made it clear in my letter, as did the agent as did the Council bumph that a Scottish Short Secure tenancy is what we get here!!

So I am just aghast!! Where on earth does he go from here when some donut hasnt even bothered to read the documentation properly !!! They bothered to write to his employer here to confirm the was employed - I provided my own home address and contact details - why did they not bother to write to me!!!

Ideas or suggestions gratefully received!!

Thanks

[caledonia]

Sorry I realise I am ranting a bit here - but I work in the Housing sector - this is the standard issued throughout the country - I couldnt have given him any different - of if it exists I don't know it.

The tenancy agreement clealry states the initial six month period and the fact it is on a monthly ongoing basis thereafter unless either party chooses to give two months notice.

My letter clealry stated I wasn't doing this.

I have rented numerous times in Scotland as a student and after uni - this is the only type of tenancy agreement I ever had and I was in one flat for three years!!!

Grrrrrrrrrrrrrrr

[the scouser]

Hi Cale,

Based on what you've written, of course you are quite right. The person refused the visa should definitely appeal. Additionally, it is worth submitting representations to the given Entry Clearance Manager pointing out the fundamental error of their staff's ways.

Unfortunately, ECOs these days don't understand immigration law, let alone other areas that don't normally concern them. Everything has to be spelt out to them in Janet-and-John terms.

Scouse.

[caledonia]

Hi Cale,

Based on what you've written, of course you are quite right. The person refused the visa should definitely appeal. Additionally, it is worth submitting representations to the given Entry Clearance Manager pointing out the fundamental error of their staff's ways.

Unfortunately, ECOs these days don't understand immigration law, let alone other areas that don't normally concern them. Everything has to be spelt out to them in Janet-and-John terms.

Scouse.

I have heard it mentioned on here about making representations to the ECM - but I am not very sure how they go about it. The refusal letters are dated 24/05/2010 but they only collected them today - having got notice over weekend.

It is just such a flaw in their knowlege I don't even know where they start!

Any ideas about representation to the ECM and what to provide is greatly appreciated

Thanks

[the scouser]

The person refused the visa should appeal by the 21 June at the latest. The instructions for doing so are included on the notice.

Also submit representations to the ECM. This can be done by e-mail to the relevant visa section. Simply cite the grounds for disputing the decision in such a way as to make your argument seem to be the logical one; e.g. such a tenancy agreement is standard and that the initial 6 months may have elapsed does not negate its legal validity.

Scouse.

[Bukseeda]

I has submitted a 6 month tenancy agreement that was expired along with a letter from the landlord stating it was now a rolling contract. No problems.

They haven't looked at the evidence properly.

[alant]

The not looking at the detail and evidence happens alarmingly often. So much so that I wonder if it is not intentional.

The appeal process seems very difficult with no fixed timescale etc.

Hope you get it sorted

[Mercury]

You cannot really expect visa people to be conversant with the intricacies of the law as it applies to tenancies.

My tenancy ran out in May and that means that I am now on a periodic tenancy which effectively gives me the same protection against eviction (2 month's notice from the landlord) as did the Assured Shorthold Tenancy (AST), save for the first 6 months. However, when I make my application, I will have a new agreement drafted which starts shortly before the application and which runs for 12 months.

From their side, they do not know that there is an agreement which will still be in place when the visa would be issued. Even if they understood the law, they still have no way of knowing whether an agreement which is effectively a rolling two month one, will still be valid as the period between submitting the application and the visa decision being made may be longer than the legal notice period. Indeed, it may be that there would be no accommodation in place and as such, though harsh, the visa application would seem fail on that fact alone.

[theoldgit]

^^^

Yes, but the OP has advised that the applicant provided all the details of the tenancy, with the supporting evidence, with the application.

Whilst I accept that ECO cannot reasonably be expected to know the ins and outs of tenancy laws, and seemingly Immigration rules, surly they cannot simply refuse an application because they don't understand the rules, they should read the evidence.

[ThaiVisaExpress]

What a suprise the ECO making a mistake such as missing 6 months of phone bills for my client last week.........

[caledonia]

You cannot really expect visa people to be conversant with the intricacies of the law as it applies to tenancies.

My tenancy ran out in May and that means that I am now on a periodic tenancy which effectively gives me the same protection against eviction (2 month's notice from the landlord) as did the Assured Shorthold Tenancy (AST), save for the first 6 months. However, when I make my application, I will have a new agreement drafted which starts shortly before the application and which runs for 12 months.

From their side, they do not know that there is an agreement which will still be in place when the visa would be issued. Even if they understood the law, they still have no way of knowing whether an agreement which is effectively a rolling two month one, will still be valid as the period between submitting the application and the visa decision being made may be longer than the legal notice period. Indeed, it may be that there would be no accommodation in place and as such, though harsh, the visa application would seem fail on that fact alone.

I am not expecting them to know tenancy law but since I am the landlord - not the applicant - I (as Landlord) provided a letter clearly stating that the tenancy agreement was going to be continuing after the initial six month period and that I had no intention in the foreseable future to give notice on the tenancy and the property was effectively theris as long as they needed it - what else could have been provided!! I made apoint of stating in the letter than the tenancy had not expired and would continue and my letter was dated in the month the application's were submitted - along with the council tax bill for 2010/2011 I should add - both clear evidence of the fact this property was still available!!

So no I dont expect them to know the law but given there is only one type of tenancy agreement in Scotland at least (I cant comment on English agreements) I do expect them to realise when a tenancy agreement clearly states it is ROLLING CONTRACT after the initial six months - they understand what that means and don't say it has expired!!

[caledonia]

In making the representation to the ECM by email, I understand he should put forward the argument that the evidence provided was not looked at properly - the workding of the supporting information was not read correctly and misinterpretated ......but do you need to follow this up with the evidence you are reffering to?

I know they return all the supporting documents and I assume that they don't take copies - therefore what does the ECM have to check what your saying against?

Sorry - blonde question of the day from me!!

[7by7]

From Step 4 - Prepare your documents

Your original documents might not be returned to you if you do not provide photocopies of the originals.

Which indicates to me that they do retain copies.

[jasonr3255]

Don't panick.

Before you even consider a long winded appeal, re submit the application outlining the mistake the ECO has overlooked and explain that you have chosen to re submit rather than appeal because of the nature of the mistake and the supporting evidence you will provide. If this is the only reason for the refusal and the rest of the application is water tight,

You should be ok. If it is too costly to re submit then you have the other option.

Good Luck

[7by7]

Resubmitting the application means paying another, non refundable, fee. Better to follow Scouse's earlier advice, I feel.

The person refused the visa should appeal by the 21 June at the latest. The instructions for doing so are included on the notice.

Also submit representations to the ECM. This can be done by e-mail to the relevant visa section. Simply cite the grounds for disputing the decision in such a way as to make your argument seem to be the logical one; e.g. such a tenancy agreement is standard and that the initial 6 months may have elapsed does not negate its legal validity.

Scouse.

The ECM has the power to overturn the decision; in which case the appeal can simply be withdrawn.

[Mercury]

I am not expecting them to know tenancy law but since I am the landlord - not the applicant - I (as Landlord) provided a letter clearly stating that the tenancy agreement was going to be continuing after the initial six month period and that I had no intention in the foreseable future to give notice on the tenancy and the property was effectively theris as long as they needed it - what else could have been provided!! I made apoint of stating in the letter than the tenancy had not expired and would continue and my letter was dated in the month the application's were submitted - along with the council tax bill for 2010/2011 I should add - both clear evidence of the fact this property was still available!!

So no I dont expect them to know the law but given there is only one type of tenancy agreement in Scotland at least (I cant comment on English agreements) I do expect them to realise when a tenancy agreement clearly states it is ROLLING CONTRACT after the initial six months - they understand what that means and don't say it has expired!!

But the very points you make are the reason why they have to refuse it, if they apply the rules to the letter. They state very clearly what they want but you and the applicant chose to ignore that and provide what you wanted. You could just as easily have drawn up a 12 month agreement starting the day before he submitted the application and they would have no grounds to refuse the visa.

You are not a relative, you are in business, to charge rent and thus do not fall into the category where you could offer them accommodation for free. What you are offering is, in effect, a one month lease. That is not acceptable but you think it should be. Your tenant only has security of tenure for one month, even you admit that. You are free to change your mind and evict him after one month and that could give rise to a claim on public funds.

Who convinced the tenant that this would be ok ? you or him ? If he took your advice, then he was foolish as the one month lease would probably run out before a decision was made. That it was your intention not to evict him is irrelevant as you could change your mind. He needs a contract for a longer period of time, a legal contract protecting his tenancy for a period far longer than one month.

[the scouser]

What is required by the rules is that the applicant demonstrates to the balance of probabilities that there will be adequate accommodation without recourse to public funds. The law does not require that a tenancy agreement of particular length of time is held, and that the UKBA in Bangkok may ask for such is of their own invention.

Ultimately, a rolling contract is as reliable evidentially as one which is valid for ten years. Although the latter may superficially be valid for longer, it could still be cancelled with a month's notice from either side. Additionally, the criterion is not to show that there is adequate accommodation, but that there will be. Consequently, there is no requirement even to have exisiting accommodation, but rather, that the applicant has sufficient financial resources to find it without having to rely upon public funds. One would presume that if Caledonia were to unceremoniously turf out her tenant with a month's notice, he would simply rent another property using his own income. It's a quantum leap to say that as a consequence of such an eventuality he would have to rely upon public funds.

Scouse.

[ThaiVisaExpress]

Don't panick.

Before you even consider a long winded appeal, re submit the application outlining the mistake the ECO has overlooked and explain that you have chosen to re submit rather than appeal because of the nature of the mistake and the supporting evidence you will provide. If this is the only reason for the refusal and the rest of the application is water tight,

You should be ok. If it is too costly to re submit then you have the other option.

Good Luck

Re submit ?

Why should he do this fax the Embassy and ask for a case review why should he waste the £600 plus visa fee again ?

Are you aware it is taking 90 days approx to process settlement applications ?