Frequency Of Visits Refusal (Appeal) Won

[ThaiVisaExpress]

Doc 1.pdf

Appeal 2.pdf

Our clients attended the above appeal and won as per the determination attached.

The respondent immediately left the hearing once our client advised the following :

VAT1.5 Frequency and duration of visits

There is no restriction on the number of visits a person may make to the UK nor any requirement that a specified time must elapse between successive visits, The fact that a person has made a series of visits with only brief intervals between them would not, in absence of any other relevant factors, constitute sufficient grounds for refusal.

It is reasonable, however, for the ECO to consider the stated purpose of the visit in the light of the length of time that has elapsed since previous visits. A visitor should not, for example, normally spend more that 6 out of any 12 months in the UK (but see guidance relating to visitors for private medical treatment).

Of note see Part 7

[VisasPlus]

Good result, Paul. Hopefully, it will make the ECOs actually think about the application before making a (poor) decision based on what they might call " historical guidance". What it actually is, is that they don't think outside the box and don't treat each application on its merits. They look only at the time between return from UK to time of application. That is an easy way of dealing with an application, and totally wrong. It is clear in the guidance that each application for a visa must be treated on its merits, and this is an example of where the ECOs disregard their own "guidance" as it does not work in their favour. Do they actually think about why it is not written into the immigration rules that an applicant cannot spend more than 6 months in any 12 in the UK, or do they blindly follow the "guidance" as if it was law ?

I doubt very much that the determinatiion will change any future decisions as the ECOs seem, unfortunately, unable to absorb change ( or criticism, in the shape of a successful appeal ) very easily. And, of course, it is not in their interest to do so. By publishing the determination, let's hope that applicants will not just accept these opportunist refusals that seem to be happening more and more lately. Hopefully, the visa managers will instruct their staff not to blindly refuse an application solely because of the "6 in 12 " guidance. Also, even more hopefully, the managers at the Embassy will look more closely at some of the current refusal decisions that we are seeing.

[paully]

Good result, Paul. Hopefully, it will make the ECOs actually think about the application before making a (poor) decision based on what they might call " historical guidance". What it actually is, is that they don't think outside the box and don't treat each application on its merits. They look only at the time between return from UK to time of application.

A little harsh - to play devil's advocate for a moment, it was surely understandable for an ECO to be highly suspicious of an applicant who "spent 12 months out of a total of 15 months in the UK" and yet claimed not to be residing in the UK on a visit visa.

With all due respect to TVE's sterling efforts, I suspect that this was the clincher in the successful appeal:

"The respondent was not represented at the hearing to clarify the situation". That was, frankly, disgraceful but a situation that happens all too often.

[ThaiVisaExpress]

Good result, Paul. Hopefully, it will make the ECOs actually think about the application before making a (poor) decision based on what they might call " historical guidance". What it actually is, is that they don't think outside the box and don't treat each application on its merits. They look only at the time between return from UK to time of application.

A little harsh - to play devil's advocate for a moment, it was surely understandable for an ECO to be highly suspicious of an applicant who "spent 12 months out of a total of 15 months in the UK" and yet claimed not to be residing in the UK on a visit visa.

With all due respect to TVE's sterling efforts, I suspect that this was the clincher in the successful appeal:

"The respondent was not represented at the hearing to clarify the situation". That was, frankly, disgraceful but a situation that happens all too often.

The respondent was at the hearing however got up and walked out once the client advised the judge with VAT1.5 Frequency and duration of visits is guidance only.

[paully]

The respondent was at the hearing however got up and walked out once the client advised the judge with VAT1.5 Frequency and duration of visits is guidance only.

Sure - but the point is he wasn't there to clarify points for the judge, as the judge made it clear in the judgment. Poor practice to walk out like that, although very useful for the success of the appeal.

[7by7]

A good and fair result.

However, I can't help wondering if any reason for so much time being spent in the UK as a visitor was given the application.

TVE and VP, I am sure that you are both aware that ECOs are under a tremendous amount of pressure to process applications as quickly as possible, and so cannot give as much thought to an individual application as one (and possibly they) would wish. I can imagine the ECO's thoughts: "Just got back from a 6 month visit, now wants another one. No reason given so probably trying to bypass the settlement rules; refuse."

A brief note explaining why the applicant was visiting the UK again so soon may have prevented the refusal in the first place.

I know such slapdash processing should not happen but it does; and will continue to do so while the UKBA, or rather the government, consider visa sections a cash cow rather than a service.

Any thoughts?

[bobrussell]

If the waiting times for settlement visas to be processed were more sensible then it would have been more constructive for an ECO to direct the applicant to a more appropriate visa type.

Cost is obviously a factor but on this forum this is not usually what causes most concern. Lives are put on hold for weeks/months until applications get processed.

I suppose we should be grateful that the UK is not as bad as Australia. It seems completely unacceptable that a settlement visa is expected to take over a year to process !!

[VisasPlus]

A good and fair result.

However, I can't help wondering if any reason for so much time being spent in the UK as a visitor was given the application.

TVE and VP, I am sure that you are both aware that ECOs are under a tremendous amount of pressure to process applications as quickly as possible, and so cannot give as much thought to an individual application as one (and possibly they) would wish. I can imagine the ECO's thoughts: "Just got back from a 6 month visit, now wants another one. No reason given so probably trying to bypass the settlement rules; refuse."

A brief note explaining why the applicant was visiting the UK again so soon may have prevented the refusal in the first place.

I know such slapdash processing should not happen but it does; and will continue to do so while the UKBA, or rather the government, consider visa sections a cash cow rather than a service.

Any thoughts?

I totally agree with you, 7x7. But, should pressure be an excuse for poor service ? Of course not. The selection process for ECOs is stringent, and is designed to employ only those who are able, amongst other things, to work well under pressure. If, ECOs are processing applications without considering all of the information, and without considering it correctly, then perhaps they shouldn't be doing the job. If these decisions were being made in private industry, and a bad decision affected income or profit, then the jobholder would be looking for another job. This comes back to our earlier discussions on accountability, and the fact that ECOs are not held accountable in any manner for their decisions. I cannot accept that this is a good thing. Paul and I have several examples of recent poor decisions by the ECOs, although the Embassy would, of course, disagree with us that they make poor decisions. It would not be appropriate to give full details here, but some of these refusal decisions have been fundamentally wrong. For instance, a refusal decision made on the grounds that there was no evidence of the applicant's "claimed" employment, when, in fact, the letter from the applicant's employer was included with the application. On making representations, the visa was immediately issued, but there was no apology of any sort from the ECO. Is it to much to ask that UKBA takes responsibility for the bad decision, for the fact that the ECO completely missed seeing the letter, and for the stress that the decision caused ?

You are, of course, also correct that visa applications are now a business. There is absolutely no personal element in the whole process if it can be done without it. Decisions must be "evidence based" ( that is, a decision must be made wherever possible on the documents submitted ). Since I have been working here ( 18 months ) not one of our applicants has been interviewed in person, and probably less than 2% have been contacted by phone for further information. It is a production line. It is easier to refuse an application such as the one we are talking about ( the 6 in 12 guidance ) than think about whether there is any reason to issue. If the refusal decision doesn't attract a right of appeal, then it is, of course, even easier as there is usually no comeback.

[7by7]

I agree that pressure should not be used as an excuse for poor performance. I also agree that, even though the government now look upon the UKBA as a business which has to make a profit, such poor performance would not be tolerated in the commercial world.

I, too, can recall posts from people who have been refused due to a 'missing' piece of evidence which was actually included!

I don't want to make excuses for any ECO who is not up to the job. However, I do believe that applicants and sponsors can help the ECO reach the right decision. A covering letter indexing all the supporting documents is a must. That will help the ECO find what s/he needs and mean that the ECO cannot claim that a document went unnoticed.

The letter should also expand upon anything on the VAF form or in the evidence which needs it, and include anything else not covered by them. Although, as discussed in a different topic, one needs to keep it brief and to the point; the ECO wont read a novel! One or two pages max, including the document index..

Before anyone who has an application pending, or will be applying in the future, starts to panic; it should also be pointed out that such mistakes are rare when one considers the total number of applications processed each year. Not that this would be any comfort to a victim of such a mistake.

[ThaiVisaExpress]

A good and fair result.

However, I can't help wondering if any reason for so much time being spent in the UK as a visitor was given the application.

TVE and VP, I am sure that you are both aware that ECOs are under a tremendous amount of pressure to process applications as quickly as possible, and so cannot give as much thought to an individual application as one (and possibly they) would wish. I can imagine the ECO's thoughts: "Just got back from a 6 month visit, now wants another one. No reason given so probably trying to bypass the settlement rules; refuse."

A brief note explaining why the applicant was visiting the UK again so soon may have prevented the refusal in the first place.

I know such slapdash processing should not happen but it does; and will continue to do so while the UKBA, or rather the government, consider visa sections a cash cow rather than a service.

Any thoughts?

In the real world of visa applications myself & Tony have to deal daily with the UK/BA and at this moment in time I am not impressed.

Example a client gets refused a visit visa so we return & address the issues the processing ECO then adds some more issues and refuses it again .

Moving the goal posts at their leisure not in the spirit of the visa.

Totally unfair in my opinion.

[paully]

In the real world of visa applications myself & Tony have to deal daily with the UK/BA and at this moment in time I am not impressed.

Example a client gets refused a visit visa so we return & address the issues the processing ECO then adds some more issues and refuses it again .

Moving the goal posts at their leisure not in the spirit of the visa.

Totally unfair in my opinion.

Completely agree. That is unethical and poor practice.