Settlement Visa Refusal-Advice Needed

[rededge]

Looking for some advice on settlement visa refusal.

It was refused on the grounds of English Language, wife has a Master Degree in English but I foolishly did not enclose a NARICS comparison with the application. This was the only reason for refusal given. She was told by VFS that if there was further documents required the consular would call her-it was a massive shock when they refused on these grounds without asking us to supply more evidence.

We are in the process of obtaining that document required from NARICS and also organizing the proper English test as back up, my wife speaks excellent English and works for an ex-pat, I feel confident we should win on appeal with these documents supplied.

My questions are as follows

1. We have 28 days to submit the appeal but may not have all the new documents ready to be sent within that timeline-I assume as long as we submit the online appeal within 28 days the supporting documents can follow as they have to be posted to UK anyway?
2. If NARICS come back with her degree will not pass the requirement-can we submit the English test anyway as proof as evidence when we did not submit it in the first place?
3. As it happens I may have secured another contract with my company for a year (literally the day after we submitted the application) and now may not need the settlement visa until next year-however my wife is distraught at the fact of having a refusal on her record and it feels like pursuing the appeal is the only way that she won’t have to tick the “refused a visa box” for other countries any views if appeal or resubmit is better? Will having a visa refused on such a technicality affect visa applications to other countries, we travel a lot.
4. The new contract will be in Malaysia, so if we win on appeal we won’t use the visa except for holidays for a year, I know this may affect the renewal in 2 yrs time but any other impacts? I am tempted to write it off to experience if I get the new contract and apply again next year but the refusal visa “black mark” is a massive issue for my wife.

Sorry for a very unique set of circumstances but having searched every version on the forums can’t really find a similar case

Thanks for any advice

[bobrussell]

It is the applicants responsibility to provide the required documentation which includes evidence that the applicant meets the English requirements. If this has not been included it is not really a technicality!

As a personal view if the covering letter indicated that that the applicant had completed a suitable degree taught in English then I would have hoped the ECO would have contacted her for evidence (missing paperwork). If there was no mention of how the English requirements were to be met then it would be more acceptable (perhaps!) to refuse.

An appeal is not really an opportunity to present new evidence (but seems to be used as such) so I am not sure if it is the right way to go. It is to correct ECO's mistakes!

A new application covering the reasons for rejection make more sense but the fees are hefty!

The refusal is not the end of the world but will need to be explained if a further application is made. The visa was refused because of an error!

Calm your wife down! You have to decide if it was your mistake or the ECO's. A refusal on these grounds will not be held against her!

Edited March 12, 2014 by bobrussell

[rededge]

Thanks, I think it is clear it was my mistake in the first place not providing the NARIC document the appendix does not explicitly state we need to do it (but does give a link to the NARICs website) but if VFO had told her we needed this when they checked all the documents we would have held the submission until we had it. It's the fact she was told we would be contacted in the event of an issue-my wife explicilty asked about the Degree as proof of English, that I feel aggreived about.

I feel like a resubmission is probably the right way but the new contract in a different country complicates that route.

[bobrussell]

Perhaps contacting ThaiVisaExpress would be a good idea:

http://www.thaivisa.com/forum/user/82340-thaivisaexpress/

They are probably the most experienced at sorting those that can be reviewed and those where a new submission is better!

[7by7]

Any appeal will decide whether or not the ECO made the right decision based upon the applicant's circumstances and the information available to the ECO at the time of the refusal. They do sometimes allow the submission of new evidence; but only that which is pertinent to the applicant's circumstances at the time of the refusal.

To be honest, though, based upon what you have said I cannot see an appeal being successful as the only grounds for same are that your wife didn't include a document she should have done!

VFS are merely a handling agent; it is not their job or their responsibility to say that the ECO will contact the applicant if any documents are missing. All they can, and should, do in such a situation is tell the applicant that documents are missing and ask whether or not the applicant wants to submit the application anyway.

It is the applicant's responsibility to ensure all the required documents are enclosed and it is not the ECO's job to chase after any missing ones. Indeed, except for certain documents pertaining to the financial requirement, they are not allowed to.

To answer your questions:-

1) You must submit the notice of appeal within the deadline; but can submit further evidence later.

2) As said above, any appeal will be determined by the situation at the time of the application/refusal. If she submits an English speaking and listening certificate dated after the application/refusal it will be rejected by the tribunal.

3) It wont effect any future UK visa applications; each application is judged on it's own merits. Obviously the reasons for any past refusal need to be addressed satisfactorily in any future application or that application will simply be refused as well.

I suspect that it will be a similar situation for any applications to other countries.

4) If an immigration officer at a UK port of entry has reasons to believe that an ILR holder is not actually living in the UK and simply using their ILR for visits then they could cancel the ILR; although the holder would probably be allowed in as a visitor on that occasion. I think, but am not totally sure, that a similar provision exists for settlement visa and FLR holders.

A settlement visa for a family member is valid for 33 months and after living for 30 months in the UK (not 2 years) the holder applies for a further 30 months FLR. At that time she will need to show that she is a UK resident and has been for the whole of the preceding 30 months.

Although, obviously, time out of the UK for holidays etc. is allowed, this will be difficult to do if she has been living in Malaysia for most of that time!

FLR is valid for 30 months at the end of which she applies for ILR. Again, she would need to show that she is still a UK resident and has been for the whole period.

Obviously, if she has a settlement visa or FLR and it were to expire while she was out of the UK then she would need to start all over again.

My advice is to write this off to experience and apply again whenever you do decide to move back to the UK.

N.B.

ECO= Entry Clearance Officer.

FLR = Further Leave to Remain.

ILR = Indefinite Leave to Remain.

Edited March 12, 2014 by 7by7

[rededge]

Thank you for all the replies very helpful,

[ThaiPhil]

It wouldn't have hurt the ECO to pick up the phone and ask for the NARICS comparison. They seem to be looking for any excuse possible to refuse applications.

OP - I'm sorry your wife's visa was refused. Good luck with whatever course of action you decide to take.

[ThaiVisaExpress]

From what the OP has said, I think his wife may have been treated a little unfairly. Yes, the onus is on the applicant to supply the specified evidence, but the ECO has the discretion, under certain circumstances to ask for further evidence. The guidance firstly says this :

3.4. Evidential flexibility

3.4.1. There is discretion for decision-makers to defer an application pending submission of missing evidence or the correct version of it, within reasonable deadline set for this. Decision-makers will not have to defer where they do not think that correcting the error or omission will lead to a grant.

The guidance on evidential flexibility then goes on to say :

In deciding an application in relation to which this Appendix states that specified documents must be provided, the Entry Clearance Officer or Secretary of State (“the decision-maker”) will consider documents that have been submitted with the application, and will only consider documents submitted after the application where sub-paragraph (b ) or (e) applies.

(b ) If the applicant:

(i) Has submitted:

(aa) A sequence of documents and some of the documents in the sequence have been omitted (e.g. if one bank statement from a series is missing);

(bb) A document in the wrong format (for example, if a letter is not on letterhead paper as specified); or

(cc) A document that is a copy and not an original document; or

(dd) A document which does not contain all of the specified information;

(ii) Has not submitted a specified document,

the decision-maker may contact the applicant or his representative in writing or otherwise, and request the document(s) or the correct version(s). The material requested must be received at the address specified in the request within a reasonable timescale specified in the request.

I think the ECO could have, and probably should have, asked for the NARICS confirmation ( assuming that the ECO was given sufficient evidence in the application to lead him to believe that the applicant met the language requirement). If the application did contain statements or evidence that the language requirement was met, then sending that evidence might get the decision overturned. It may depend on how the refusal was actually worded, of course, and we haven't seen that.

Tony M

Edited March 12, 2014 by ThaiVisaExpress

[7by7]

Thanks for that, Tony.

I thought the guidance you have quoted only applied to financial evidence. Obviously I was wrong.

[ThaiVisaExpress]

Thanks for that, Tony.

I thought the guidance you have quoted only applied to financial evidence. Obviously I was wrong.

7x7, as I understand it, evidential flexibility must apply in all areas of the rules, not only in the Appendix FM financial requirements. Some quotes on the evidential flexibility policy state:

the Tribunal had concluded that the Home Office’s evidential flexibility policy had marked a welcome and sensible shift from a mechanistic application of the rules towards one of greater flexibility, discretion and fairness and that the Secretary of State was under a public law duty to give effect in all cases to which May 2011 policy applied.

That policy stated that applicants would be contacted where mandatory evidence was missing from their applications and given the opportunity to provide this. McCloskey J also concluded that in relation to other applications, Home Office case workers and decision makers must be aware of and give full effect to its “Evidential Flexibility” policy document which in turn required appreciation and exercise of the discretionary powers within that policy to request further information from applicants in any case in accordance with established public law principles to give effect to that policy; to act fairly and rationally etc.

However, the quoted document did go on to say :

The Court concluded that the Secretary of State had not been under any obligation to afford the applicants for leave to remain any opportunity to remedy defects in their applications in relation to maintenance requirements under her evidential flexibility policy. The ‘evidential flexibility policy’ was not designed to give an applicant the opportunity first to remedy any defect or inadequacy in an application or supporting documentation so as to save the application being considered invalid or from refusal after consideration. Why not? Because the Court found it was not intended to be a wholesale relaxation of the evidential flexibility policy but rather only to address minor errors in the application process.

The Court observed that the language of the policy permitted the SSHD to accept such material but significantly did not require her to, i.e. she had a power to admit it but not an obligation to do so nor to seek it out. In any event the Court reminded themselves of the distinction between a substantively valid application and the mandatory evidence for such an application to be valid, i.e. an application would only be considered as being valid when all the mandatory sections had been completed and the failure to do so would mean that such an application would be considered as invalid at the outset without further consideration

Tony M

Edited March 12, 2014 by ThaiVisaExpress

[7by7]

Thanks again, Tony.

In which case, it may be best for the OP to ignore most of my earlier post!

[ThaiVisaExpress]

Thanks again, Tony.

In which case, it may be best for the OP to ignore most of my earlier post!

It might depend on what was submitted with the application, and what the applicant said concerning her meeting the requirement. If she just said "I have a degree", then the ECO might be justified in refusing (?), but if she said "I have a B.Ed in English that meets the requirements of the rules". then maybe the ECO should have asked for evidence ? As you can see from the quotes above, evidential flexibility has been the subject of appeal determinations, so it's impossible to give a precise answer.

Tony M

[bobrussell]

In a sensible world the ECO should have requested the information!

As long as VAF4A part 8 was completed with the correct information it should be a simple case of missing paperwork?

If this was filled in with anything stating 'degree' then it does seem particularly harsh if the application was rejected on the grounds of missing paperwork. It would be interesting to hear what the applicant put in this box!

Tough decision but as rededge has commented the applicants circumstances may have changed to make settlement this year more complicated!

Edited March 12, 2014 by bobrussell

[rededge]

This is the rejection statement, having read it several times not sure if I have a case to appeal or not?

to me it feels like it should meet the criteria for putting on hold and requesting more evidence as per Tonys post and that is what VFS said would happen. But then clearly I am less objective on this matter than others on here may be.

Thanks again for all the great advice

[ThaiVisaExpress]

image.jpg

This is the rejection statement, having read it several times not sure if I have a case to appeal or not?

to me it feels like it should meet the criteria for putting on hold and requesting more evidence as per Tonys post and that is what VFS said would happen. But then clearly I am less objective on this matter than others on here may be.

Thanks again for all the great advice

I think I agree with you. The fact that VFS offered immigration advice goes beyond their remit.

Tony M

Edited March 13, 2014 by ThaiVisaExpress

[bobrussell]

I am not familiar with NARIC but it seems to be a way of comparing international degree courses. From what I can see you plug in the details and it does a comparison. if it is acceptable then an appeal or reconsideration on the grounds of missing paperwork would seem to be in order IMO.

Settlement visas do have a right of appeal, at least for the moment. I would have expected a phone call to be made to get this information. i wonder if there is pressure on ECO's to delay or block settlement?

[7by7]

More likely, I think, that they are under pressure to process applications quickly and so are less likely to take the time to request missing documents and instead simply pass the buck by refusing.

[welshmale147]

Any news on new settlement rules for uk pulling my hair out waiting for news

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[welshmale147]

If the new settlement rules are appealed again what will happen to the 2600 applications on hold will they be offered money back or interest they have had my 43000 baht since November haven't had a refusal notice or any information if the actual application is on hold or being processed pulling my hair out not that I got much left thanks all

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[Jay Sata]

I doubt the money will be returned or interest paid. Technically the applications are still being processed.

[welshmale147]

I have heard they are suppose to let you know that your visa is on hold due to financial shortfall I haven't heard a whisper

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