Re apply UK spouse visa after refusal

[7by7]

Kindly show me where I have criticised Theresa May in the post you have quoted.

What I did was point out who is responsible for the regulations and the financial requirement and the removal of much of the discretion ECOs could exercise prior to 9/7/12.

However, I am critical of the financial requirement. Not that it exists, but the level of income required; search my previous posts on the subject.

A criticism shared by, among many others, the All Party Parliamentary Group on Migration.

The attitude that politicians and the government cannot be criticised is anathema to all who believe in democracy.

[danzontour]

Funnily enough had an email from UKVI asking my wife to do a survey. Im guessing thats in relation to the first application which was refused. Still playing the waiting game.

[danzontour]

We now have the we have made a decision email. So 4 working days to go.

[durhamboy]

Benroon - I agree the system is crazy but in your example you would probably have the £62,500 of savings to qualify.

One of the major flaws in the financial requirements system is that they take no account of outgoings or non-cash assets.

For example you could earn £18600 p.a. but have outgoings of £20,000 p.a. because, say, you are renting and pay £10,000 in rent. You qualify.

Another person could earn £18599 p.a. and have outgoings of £10,000 p.a. because they own a £500k house with no mortgage. They do not qualify!

[7by7]

Yes, you can meet the financial requirement through income, savings above £16,000 or a combination of both.

Although, for some reason, you cannot combine income from self employment with savings.

See the financial requirement appendix for full details.

That you have spoken to two agencies who did not know that savings could be used tells me you need to find a competent agent who knows what they are doing!

I suggest the forum sponsors; Thai Visa Express.

Edit:

Just noticed you say in your final sentence " so for a second visit would probably consider an agency....."

The financial requirement and required evidence to show it is met we are talking about here is for settlement.

Completely different for a visit visa; no fixed minimum, less stringent evidence requirements.

Edited June 22, 2015 by 7by7

[ThaiVisaExpress]

I don't think we were involved in answering your enquiry ? But if we were, then we must apologise for any misunderstanding.

To clarify, you can meet the financial requirement by evidencing your self-employment ( by salary, wage slips, dividends), or by showing savings of at least 62,500 GBP. The savings must have been under your control for at least 6 months, and must be immediately available at the date of application.

Savings and income from self-employment cannot be combined to meet the financial requirement. It has to be one or the other.

Tony M

[bobrussell]

If you have savings of £62K and can demonstrate that you have had control of the savings for six months or more, I think you can meet the financial requirement with that alone.

I am no expert and will happily be corrected but the ECO will be looking for evidence that these are genuine savings!

Thankfully my wife got ILR and citizenship before the new financial requirements came in! At the time I was self employed and getting my head round the rules for the self-employed would have been quite a challenge!

Between £16K and £62K you need to present a combination of savings and income but this is not acceptable for the self employed.

[7by7]

To clarify:-

Savings below £16,000 cannot be used toward the financial requirement.

Savings of £62,500 or above; can meet the financial requirement through savings alone.

Savings between £16,000 and £62,499 and income below £18,600p.a.; can meet the financial requirement through a combination of income and savings.; but not if the income comes from self employment.

Income above £18,600p.a.; can meet the financial requirement through income alone.

Note these figures are for a spouse or partner applicant only. If children are also applying then they will be higher; but if you have children who are British citizens then as they don't need a visa to live in the UK they are not included in the requirement.

If using savings you must provide evidence that the money belongs to you, your spouse/partner or a combination of you both, has been in your possession for at least 6 months prior to the application and state the source of the money. Gifts from third parties are acceptable, but loans are not.

For full details, see the financial appendix linked to above.

[ThaiVisaExpress]

I don't think we were involved in answering your enquiry ? But if we were, then we must apologise for any misunderstanding.

To clarify, you can meet the financial requirement by evidencing your self-employment ( by salary, wage slips, dividends), or by showing savings of at least 62,500 GBP. The savings must have been under your control for at least 6 months, and must be immediately available at the date of application.

Savings and income from self-employment cannot be combined to meet the financial requirement. It has to be one or the other.

Tony M

No not you Tony so no need to apologise.

Its is bizarre (and unfair) there are different rules for self-employed

Just on a technicality - concerning the 62k - would it be enough to have this amount in investments, equities etc which could obviously be sold at a minutes notice ? or does it strictly have to be held in cash in a bog standard bank/building society ?

Very happy to hear that we didn't give you poor advice !

The guidance on savings says this :

7.4. Cash savings – further guidance

7.4.1. Savings must be held in cash in a personal bank/savings account in the name of the applicant, their partner or the couple jointly. The savings can be from any legal source, including a gift from a family member or other third party, provided the source of the cash savings is declared. The applicant and/or their partner must confirm that the money, which cannot be borrowed, is under their control and evidence that it has been held in their bank account for at least the 6 months prior to the date of application.

7.4.2. Savings can be held in any form of bank/savings account. This bank/savings account can be a deposit or investment account. Deposit accounts are usually easily identifiable. An investment account must also meet all of the other cash savings requirements to be considered as a bank/savings account for the purposes of the cash savings rules at paragraphs 11 and 11A(a).

7.4.4. For example, in the UK a ‘stocks and shares’ Individual Savings Account (ISA) does meet the definition of a savings account and the funds can be considered as cash savings if all the requirements above are met. Likewise, a pension savings account from which savings can be immediately withdrawn (like the 401K in the US).

7.4.5. Funds that are held in an account at the date of application that do not meet all of the requirements listed in the above table cannot be considered as cash savings that meet the requirements of paragraphs 11 and 11A(a) in Appendix FM of the rules. An example of an account that generally does not meet all of these requirements is a brokerage account in which funds are used by stockbrokers to purchase shares for the account holder. It does not meet the criteria of being a current account or a savings account. A

brokerage account may also fail to meet other criteria such as not being held in a bank or building society. See paragraph 7.4.9. in respect of funds held in an investment account which does not meet the requirements of paragraphs 11 and 11A(a). A betting account held with a bookmaker or gambling operator will also not meet the requirements of paragraphs 11 and 11A(a).

There is a lot more, and it would be worth reading the attached ( from 7.4.5 onwards

Appendix_FM_Annex_1_7_Financial_Requirement.pdf

Tony M

[7by7]

Its is bizarre (and unfair) there are different rules for self-employed

The whole financial requirement is bizarre and unfair; as has been discussed at length on this forum in the past.

Another three obvious examples being:

If the British partner is a returning expat and has a definite job in the UK paying at least £18,600 p.a. they do not meet the requirement unless they have been earning that amount or more whilst abroad for at least the 6 months prior to the application. If they haven't then they have to return alone and be in that job in the UK for at least 6 months before their partner can apply to join them.

The applicant's potential earnings once in the UK cannot be used. So even if the applicant has a definite job once in the UK paying more than £18,600 p.a. that will be ignored.

As durhamboy says above, no account is taken of outgoings.

To misquote Mr Micawber:

"Annual income £18,600, annual expenditure £18,601; result happiness, visa issued.

Annual income £18,599, annual expenditure zero; result misery, visa not issued."

Edited June 23, 2015 by 7by7

[johnch1213]

Its is bizarre (and unfair) there are different rules for self-employed

The whole financial requirement is bizarre and unfair; as has been discussed at length on this forum in the past.

Another three obvious examples being:

If the British partner is a returning expat and has a definite job in the UK paying at least £18,600 p.a. they do not meet the requirement unless they have been earning that amount or more whilst abroad for at least the 6 months prior to the application. If they haven't then they have to return alone and be in that job in the UK for at least 6 months before their partner can apply to join them.

The applicant's potential earnings once in the UK cannot be used. So even if the applicant has a definite job once in the UK paying more than £18,600 p.a. that will be ignored.

As durhamboy says above, no account is taken of outgoings.

To misquote Mr Micawber:

"Annual income £18,600, annual expenditure £18,601; result happiness, visa issued.

Annual income £18,599, annual expenditure zero; result misery, visa not issued."

The Rules are set out if you like them or not makes little difference they are the requirements and if people don't like it complain to your MP

[bobrussell]

Its is bizarre (and unfair) there are different rules for self-employed

The whole financial requirement is bizarre and unfair; as has been discussed at length on this forum in the past.

Another three obvious examples being:

If the British partner is a returning expat and has a definite job in the UK paying at least £18,600 p.a. they do not meet the requirement unless they have been earning that amount or more whilst abroad for at least the 6 months prior to the application. If they haven't then they have to return alone and be in that job in the UK for at least 6 months before their partner can apply to join them.

The applicant's potential earnings once in the UK cannot be used. So even if the applicant has a definite job once in the UK paying more than £18,600 p.a. that will be ignored.

As durhamboy says above, no account is taken of outgoings.

To misquote Mr Micawber:

"Annual income £18,600, annual expenditure £18,601; result happiness, visa issued.

Annual income £18,599, annual expenditure zero; result misery, visa not issued."

The Rules are set out if you like them or not makes little difference they are the requirements and if people don't like it complain to your MP

Many, many people have done just that. The rules are bizarre and unfair.

The self-employed are discriminated against, those perfectly capable of living on their own income may be unable to meet the requirements whereas a family waist high in debt and expenses could sail through, unquestioned.

I believe every applicant should have the opportunity to satisfy the UKVI that they can settle without the need for extra public funds.

[7by7]

(Some quotes removed for clarity and to comply with forum software)

The Rules are set out if you like them or not makes little difference they are the requirements and if people don't like it complain to your MP

Many, many people have done just that. The rules are bizarre and unfair.

Including me.

I also submitted evidence to the APPG inquiry, which reported in June 2013.

My MP, being a Tory, ignored me, as the government ignored the report and recommendations of the APPG inquiry.

<snip>
I believe every applicant should have the opportunity to satisfy the UKVI that they can settle without the need for extra public funds.

Which is essentially what the old rules said.

Prior to July 2012 there was no fixed minimum income required in the rules.

However, in 2006, the UKAIT in UKAIT 00065 KA and Others (Pakistan), strongly suggested that it would not be appropriate to have immigrant families existing on resources that were less than the Income Support level for a British family of that size.

Which in practice meant that a couple had to show that after paying housing costs, rent or mortgage, and any other regualr financial commitments, such as servicing debts, they had a disposable income equal to the income support level for a couple. Where both partners are over 18, that is currently £114.85 pw, £5972,20 p.a.

No one, including my MP, has yet been able to provide a satisfactory explanation of why that figure cannot be used as the minimum income be used, nor why the set figure is gross income, not disposable income.

Under both the old rules and the new the immigrant partner is banned from claiming most* non contributory public funds until they have ILR and the British partner cannot claim any extra due to their immigrant family members living with them until those family members have ILR.

I don't think anyone here has a problem with that.

*The main exception being tax credits. HMRC rules state these must be claimed jointly by husband and wife, so not only can the immigrant partner be included in the claim, they must be.

[durhamboy]

johnch1213 "The Rules are set out if you like them or not makes little difference they are the requirements and if people don't like it complain to your MP"

As usual you make a glib statement without explaining your position. Yes, we can complain to our MPs. Some have and look how far they have got..........nowhere!

So, amongst other things, we complain here. If you don't like it then don't read our posts and take your glib comments elsewhere. Also please note, in addition to making these comments we give valuable advice to people making visa applications e.g. Benroon above was unaware of the savings route.

[1975]

6-12 months waiting time for an appeal. So if it's your wife your waiting for then your never gonna wait that long.

[Trevor1809]

As for the non return of your documents, originals are only returned if a copy is also provided.

Does this apply to the FLR as well? If I don't provide copies then they will keep my original divorce certificate, my kid's birth certificate, my VAT registration certificate, my P60? You can't get duplicates of these documents so if they keep them then they are not available for other purposes. These people can't even get the application form right, see my post, yet they expect the applicant to be word perfect.

[ukguy51]

Hi Guys

New to the Forum so forgive me if I am posting in the wrong place. Just had my Wife's spouse visa refused on 3 grounds everything else was ok. I just wanted to show how petty the system really is and with the ECO not having discretion or common sense to check within government departments on the geniality of documents supplied or reason a document could not be supplied as in our case. This begs to believe if they actually check any docs are genuine and just look for any reason to refuse.

1. Bank statements was not the full 12 months. I supplied the bank statements to cover the period I relied Upon to meet the £18600 I only worked the last 6 months of the tax year 2014/15 however still earnt over the threshold. I did read up on as much as I could find and it is a mine field and a lot a play on words to confuse us. I read this and many other guidelines also reading a lot on here and very helpful thanks for that guys.

(Immigration Directorate Instruction Family Migration: Appendix FM Section 1.7 Appendix Armed Forces

Financial Requirement

August 2015

3.2.2. The applicant has to demonstrate and evidence the income/savings required to meet the level of the financial requirement relevant to their application. They do not need to provide information in the first instance about any income/savings which they and/or the partner may have beyond this). I did exactly what it said supplied the correct statements for the period I relied upon in the Tax year and submitted to HMRC for my tax return.

2. Class 2 National Insurance. When I went to pay my Class 2 well before we prepared the Visa application HMRC could not produce me a bill because DWP had left open a claim for ESA I had due to illness at the start of 2014. I had closed the claim when I returned to work but DWP screwed up and did not close the NI credits. This did not come to light until I rang HMRC to get my bill and pay.

HMRC told me that DWP are holding open the NI credits and until that's closed HMRC cant do a thing. After weeks backwards and forwards with DPW it finally go closed some 4 months later in fact Aug 13 2015. My application was submitted on 1st July. DWP new I needed this for the Visa and said to included the member of staffs at DWP name, department and phone number. To put an explanation in and she would confirm it was their error I could not pay the NI. I also rang UKVI a week before my wife put application explaining all this. They said the same put a letter in explaining it and it will be ok. I put a full cover letter in with DWP and UKVI details.

ECO nope ignore and refused.

3. Showing planning permission. I took this to my Local council planning office and asked for the relevant document, they printed me a copy. I again put a cover letter to this stating the Planning office member who printed it's name and contact in case of query

ECO nope wrong document refused.

(iii) Evidence to show appropriate planning permission or local planning authority consent is held to operate the type/class of business at the trading address (where this is a local authority requirement);

When I got the refusal​ yesterday wife sent by email I rang local council to complain. Reply really sorry but we have no idea what the ECO is asking for this is all we have about you shop. Hmmmmm DWP and Council get me 2 refusal reasons what hope is there.

To say the least a very bad day yesterday .

[bobrussell]

Having seen UKVI at work recently I am becoming more convinced that they are looking for reasons to refuse. It could just be that they are too rushed to do a job properly or they might just be rubbish at it!

The refusal notice should indicate your appeal rights.

Get confirmation in writing from DWP and the council and get back to the UKVI.

I have felt quite supportive of ECO's working in a pretty difficult situation but finding this more difficult at the moment. I do wonder what those redacted spaces in the ECO guidance notes actually say! I cannot see how any of their decision making processes require secrecy.

[ukguy51]

Bobrussell

Yes got rights of appeal under Human rights, have actually yesterday emailed the whole lot to my MP. he is taking the case on and has asked a senior member of the home office to contact him Tomorrow so fingers crossed they get this overturned. DWP have not called me back yet but hopefully will get documented evidence of their screw up and as for the planning department at the Council they have no idea what the ECO wants if it was not for being such a serious blow to my family it is laughable.

[tonyk]

UKguy51 Why are you mixing up the Armed Forces provisions under FM with the self-employed requirements? You have simply not provided the required information/documentation. Provide it and you may be able to get the decision reversed but you will need to launch an appeal. If you do not have these then you cannot win on appeal as the law states what is required.

[ukguy51]

tonyk

Thank you for your reply in no way did I intend to use the rules for armed forces long done. I got that link through a blog on here from a well know member. I will say this that even armed forces have to provide the same evidence of income as none armed forces. I have read many post's on this site and have accepted when us "joe public" get it wrong being our own fault. You though sound professional in the UKVI ! Try looking at what I posted and the rules I posted they apply to every application, appendix FM-SE has the exact same rules. No I supplied every thing in that document had I supplied any more bank statements than I did I would be lying, Instant refusal and possible life ban for my wife, I did as the rule 3.2.2 says .

This site and post's are to help people on the trials and problems we all face/faced and give help to them applying that's all I posted.

Ok feel good you know so much how ever my MP has designated a member of his team to personal deal with my wife's and my issue believing the ECO acted wrongly outside of the rules. To me and only my opinion and no offence meant you sound more like a justifier to boost money for the immigration staff and home office, by saying stick another G in have another pop and maybe you will get lucky.

Look at the reasons of refusal please, Two the governments doing the other I personally think illegal in that the ECO made up rules not there in Appendix fm-se. I again quote the rules.......

3.2.2. The applicant has to demonstrate and evidence the income/savings required to meet the level of the financial requirement relevant to their application. They do not need to provide information in the first instance about any income/savings which they and/or the partner may have beyond this). I did exactly what it said supplied the correct statements for the period I relied upon in the Tax year and submitted to HMRC for my tax return.​

The other 2 refusal reasons I had no control over but the government did. I found your post negative and frankly insulting. I only posted my wife's and I issue to help others and the pitfalls, I never asked for your advice on what to do, I am dealing with that myself.

Trouble is to many read into rules and make up stuff that is just not there and justify making rules up as they go along bit like an ECO !

Edited August 21, 2015 by ukguy51

[ukguy51]

Update

Phone call from really helpful lady in HMRC NI deartment, They have now rectified DWP's Cockup and she has even emailed my MP to tell him so.

Local council sent me two moe documents to satisfy (iii) Evidence to show appropriate planning permission or local planning authority consent is held to operate the type/class of business at the trading address (where this is a local authority requirement); Sent to MP both wrong yet again.

Edited August 21, 2015 by ukguy51

[7by7]

<snip>

The refusal notice should indicate your appeal rights.

More importantly, it will give the reasons for the ECO refusing.

ukguy51, if you can post a copy here, after removing all names and other identifying information, then we can make comments and give advice based upon facts rather than speculation.

From Appendix FM 1.7: Financial Requirement

3.4. Evidential flexibility

3.4.5. It can be helpful to the Tribunal in any appeal against a refusal based on a failure to meet the financial requirement for lack of provision of specified evidence under Appendix FM-SE if the refusal notice or letter briefly explains whether and why the evidential flexibility provisions have or have not been applied. A refusal notice or letter should contain such a brief explanation where the applicant, in making their application, has asked the decision-maker to apply the evidential flexibility provisions and the decision-maker has refused to do so: see Sultana and Others (rules: waiver/further enquiry; discretion) [2014] UKUT 540 (IAC).

[ukguy51]

Our Refusal Letter.

[ukguy51]

Sorry had no idea how to make pics smaller.

answers to not provided and was documented with each item submitted.

1. Bank Statements. I did not work the first part of last year due to illness. I supplied all statements from the day I returned to work till the end of the tax year 5th April and this more than covered the £18,600. The actual amount I eant I declared on My 2014/15 tax return which a copy was also supplied. I did not have this account before then so no statements before then. I used this rule in Appendix FM-SE...

3.2.2. The applicant has to demonstrate and evidence the income/savings required to meet the level of the financial requirement relevant to their application. They do not need to provide information in the first instance about any income/savings which they and/or the partner may have beyond this. Also this.

(e) Where the person holds or held a separate business bank account(s), bank statements for the same 12-month period as the tax return(s).

I supplied bank statements for the tax return 2014/15 which both matched and over the 18,600. Why would I then have to supply anything else as stated in 3.2.2. the statements I had are for the same 12 month period (tax year) as my tax return. it does not say a full 12 months statements and must have April 5th 2014 to April 6th 2015 dates show on the . What happens if someone only does one job but earns over the threshold and it was paid on April the 1st at the end of the tax year and only has one page bank statement ? There is nothing in the rules that says anyone must work every week of every month in that 12 months.

[7by7]

The meaning of Para 3.2.2 is that if one source of income and/or savings meets, or is above, the minimum required then any other sources are, to all intents and purposes, irrelevant to the application and evidence of them is not required.

It does not mean that you don't have to include any of the specified evidence required for the category you are using; self employed income in your case.

You say your provided business bank account statements for the tax year 2014/15; but the refusal notice says you only provided them covering 1/11/14 to 2/6/15; which is not the whole tax year.

Is that correct?

As you have quoted, Para 7 (e) of Appendix FM-SE, quoted in Para 9.6.1 of the financial requirement appendix, says "(e) Where the person holds or held a separate business bank account(s), bank statements for the same 12-month period as the tax return(s)."

Same 12 month period; not part of it!

ECOs can exercise evidential flexibility if one document in a series, such as one bank statement, is missing; but not when seven out of twelve are!

You ask why you need to provide statements for the whole tax year when those you did provide show that your income is above the minimum. I'm afraid the answer is because the regulations say that you have to; even if they show no income during that period.

I am not an expert in meeting the financial requirement through self employed income; but it does seem to me that this refusal is correct under the rules.

My advice is to seek professional help from an OISC advisor or immigration solicitor.

Edited August 22, 2015 by 7by7

[7by7]

What type of visa was that for, Benroon?

Your previous posts suggest it was a visit visa.

The rules and financial requirements for settlement are completely different to those for visits.

[ukguy51]

Thanks 7by7 for your reply. I would have put 12 months in had i had them I did not have any before I returned to work on the 1/11/2014 hence why the ones provided are from that date to 5th April 2015 end of tax year.

The others i supplied from the 5th April 2015 to the 2/06/2015 which is when my wife flew back to Thailand were aditional to help the ECO understand my business was still ongoing again these were not mandatory but because of the screw up from DWP over my Class 2 I tried to show the ECO more information.

I am sure somewhere in the appendix FM-SE it mention ECO discretion can be used if a document cant be supplied because it is permanently lost surely that the statements he said missing and duly refused on never existed holds some weight for discretion or the drafters of the Appendix FM-SE should make another rule and make it very clear you must hold a bank account for a whole year and have statements for a whole year. Not sure what the rule 3.2.2 implies.

I supplied all the statements I had for the tax year 2014/15 which evidenced my tax return which the ECO accepted. All I could supply over and above the business statements was a personal cash account which was totally irrelevant to money I was relying on to prove the £18,600 and so used 3.2.2 and did not include them.

I did not expect the ECO to have a crystal ball and guess why I only supplied statements from the dates I did I put a cover letter on the statement bundle explaining why and my illness prior to returning to work. In relation to my first post the Class 2 and Planning consent are duly logged by my MP to the home office. MP is speaking with them next week. Amazing DWP and local council get there finger out when an MP is involved Not sure what I can do to rectify the statement issue and to be totally frank 3.2.2 in my opinion is my defence. Its a play on words in

Para 7 (e) of Appendix FM-SE, quoted in Para 9.6.1 of the financial requirement appendix, says "(e) Where the person holds or held a separate business bank account(s), bank statements for the same 12-month period as the tax return(s)."

Tthe amount I declared to HMRC on my tax return for the year 2014/15 was money I made from 1/11/2014 to April 5th 2015 so the statements I supply are in my opinion from the same 12 month period as the tax return. Also I really can not see if I have supplied documented evidence to show I earn over the £18,600 anything over and above falls under 3.2.2 and is irrelevant and no grounds to refuse.

[bobrussell]

How hard is it for an ECO to phone/write, email an applicant that has spent over a grand to request/demand the other six months of bank statements? It is not their place to sort out a poor application but why not spend a couple of minutes helping where possible?

The system is becoming even more adversarial IMO. ECO refusing on grounds that can be easily cleared up because he or she can, applicants trying to second guess what the ECO is going to find fault with.

The system should be there to aid the genuine applicant and weed out the bad ones. Clearly not to the point that a lot more resources are required but absolutely to the point of being fair to everyone!

[7by7]

I understand that you were not working for those 7 months, and as you explained it in your sponsor's letter I assume that the ECO dooes as well.

However, this does not change the fact that the regulations, laid down by Parliament (read government and Home Office!) say that you need to provide bank statements covering the whole 12 months of the tax return.

Are you saying that you lost those 7 months of statements? If so, surely your bank could have provided copies.

Or was it a new account? In which case surely your old bank could have provided the relevant statements.

Or is it a new business and prior to that you were not self employed?

Bob, I understand what you are saying; and you know my feelings regarding the stupidity of much of this requirement. But as the rules stand, the ECOs have bugger all discretion over requesting further information or documentation.

It is easy to blame the ECOs; but the fault lies with the government and their advisors who drew up and set in place this ridiculous requirement when the old one, able to support and accommodate without recourse to public funds, was perfectly serviceable and had worked well for many years.