Questions about appealing a Settlement visa refusal

[rcmk]

Hi, this is my first time posting to this forum, although I have been lurking for a couple of years because the advice is always so useful.

My husband was refused a settlement visa, we have already re-applied and are waiting for the outcome as we were able to easily address the reasons for refusal by adding additional documentation and clarifying what we had, and would prefer to be together again as soon as possible!!

However the reason for refusal was that we were £36 under the financial requirement (we are using savings); we actually evidenced £64,637.037 of savings so something was missed, so I think we actually have a straightforward appeal case and we are still within the 28 days.

I've seen a few times people mention that it is possible to appeal at the same time as re-application? I am a bit confused as to how this works? Should my husband be granted a visa in the next few days through our new application does the appeal become pointless? Or does it mean that we would get our money back for the first application if we were able to show that a mistake had been made?

Secondly, what kind of documentation should I submit for the appeal? Everything we submitted to apply for the visa? Or just documents relevant to the grounds for refusal?

Thank you so much for your help in advance

[7by7]

Yes, you can appeal a refusal and at the same time submit a new application.

Then, whichever one is granted first you simply withdraw the other.

UKVI argue that the visa application fee is to cover the cost of processing the application; not for the visa. So, there is no refund of the fee if an application is refused.

If an application is withdrawn you will get a refund; but only if it is withdrawn before any processing has begun; see Cancel your visa, immigration or citizenship application.

If you withdraw an appeal, you may get a refund of the appeal fee, depending upon your reasons for withdrawal. Withdraw because the post has overturned the original refusal on review and you will probably get a refund; withdraw because a subsequent application has been successful and your probably wont.

It is difficult to comment on the actual refusal without seeing the whole refusal notice (if you do decide to post it here, remove all names and any other identifying information first).

But as the minimum savings required, if meeting the requirement entirely from savings, is £62,500 it does seem from what you say that something was missed by the ECO.

Are the savings all in one place or in two or more accounts?

What evidence did you provide to show these savings exist and are in the possession and control of you, your husband or you both jointly and have been for at least 6 months prior to the application?

Appeals can be a complicated matter.

You can do it yourself; but I would advise using either a solicitor who specialises in immigration matters or a level 3 OISC advisor to assist you. Though obviously they will charge you a fee.

Edited January 24, 2016 by 7by7

[rcmk]

Hi, thank you for your clear and helpful reply.

Our savings did not come from one source so it is easy to see how something could have been missed.

I had £47,600 in my UK savings account evidenced by 6 months of official bank statements.

The rest of the money came from 920,000 Baht which my husband held in Premium Bond Certificates broken down into 4x 200,000 baht and 1x 120,000 baht. On the date of application the exchange rate was 54 baht so that gave us £17,037.03. In order to rely on these he had to convert them to cash and deposit them into a savings account before the date of application which he did and we evidenced that. We had all of the documentation regarding my husband's finances officially translated including the premium bonds savings certificates and his bank book. The receipt for withdrawal for 600,000 baht of the certificates was in English anyway, the other 320,000 baht the bank had just stamped them as sold, which is why we think that the ECO said he could see withdrawal slips for only 600,000 baht of the certificates. We managed to get a receipt and translate it for our second application, however it didn't actually seem to be important to the decision anyway.

The ECO said that he could only see where 800,000 baht of the money in his bank account came from and based his calculations on that which is how we came to be £36 under the financial requirement. Which leads me to think that the Premium Bond Certificate for 120,000 Baht was missed, I actually had a panic and thought I must have forgotten to submit it until it was returned with the rest of the documents!!

I have inserted the financial requirement section of the refusal letter - I hope that makes it a bit clearer. The rest of sections were 'Met'.

It seems that maybe appealing is not worth the hassle for us then if it won't lead to a refund for the first application, as our aim is just to be living in the UK together as soon as possible. We've lived together in Thailand for our whole relationship until I came home to go back to university and we applied for this visa, so we really are not used to being apart.

Thank you so much for making that clearer for me.

[7by7]

Entry Clearance Officers have absolutely no discretion over the financial requirement. Even if it is just £1 short, they must refuse. (Yes, I know that is ridiculous; thank you Mrs. May!)

If your husband appeals then the first action will be to refer the case to Bangkok for review. If that review overturns the refusal then the visa will be issued and you will probably be able to get a refund of the appeal fee.

But, in my opinion to stand any chance of that happening you would have to prove that you did provide the extra document, that it did show that at the time your husband's total cash savings plus yours did exceed the minimum and that this document was missed by the ECO.

I think that if the appeal went to the tribunal you would also have to prove that.

Sorry, but I've no idea how you could do that. Did you include a list of all documents submitted with the application? That may help.

Another point to consider is that a second application will probably be processed much more quickly than any appeal.

But I am not an expert on appeals.

Hopefully someone with more expertise in this area than I will be able to advise you further.

Edited January 24, 2016 by 7by7

[rcmk]

Thank you, I think you're right that we would have to prove that the document was missing which does seem to be next to impossible to do. I did include a contents page listing documents but I just listed the certificates as 'Premium Bond Certificates x5' so probably in no-where enough detail to prove anything, and the ECO also did not retain the contents so presumably I don't actually have a way of proving I submitted a contents page in the first place as it was just a word document so they could easily argue that I just made it for the purposes of the appeal if they wanted to!

So the second application does seem to quicker and simpler.

[bobrussell]

Why on earth did the ECO not make a phone call requesting evidence of an additional £36. A question of beaurocracy gone bonkers.

Nobody in their right mind is going to apply short of £36 so it has to be an error on the part of the applicant or ECO. If the applicant cannot show the additional £36 then the visa will be rejected but nobody with these savings will be unable to demonstrate an additional small sum such as this!

If the ECO has missed something then request a review on the grounds that the ECO has made a mistake. Jobsworth to the extreme!

The ECO should be retaining full copies of documentation, how else are they supposed to fight appeals!

I have long accepted there is a form of madness taking over at UKVI but this is the worst example yet!

[Tony M]

There are several points here, and I may be repeating what others have said. You can appeal and submit a new application at the same time. If the visa is issued, then you should be asked to withdraw the appeal, but the UKVI might do that on your behalf.

VFS should have taken a list of documents submitted ( and the applicant will have been asked to sign it as correct), so that should be on file with the Embassy and/or VFS.

UKVI are obliged, when refusing an appealable application, to copy all documents, as they are needed for the appeal. Therefore your evidence should be "on file". But getting hold of them before the appeal is heard is not so easy. You can ask UKVI Bangkok if there is a copy of the missing document on file, and you may, or may not, get a response. You can, however, make a Subject Access Request (SAR) under the Data Protection Act. It costs 10 GBP. All of the documents that you submitted should have been scanned to the database in the UK, as required by the DPA. The UKVI are legally obliged to provide all of the documents on file when an SAR is made, and the fee is paid. They have 40 days to respond. So, the Embassy in Bangkok are not actually involved in the process. Having scanned everything, the data is held on a server with the Home Office Data Protection Unit. If your missing document is among the documents supplied to you from your SAR, then I think you have a good case for asking for a fee refund, as it should show that the ECO made an error. You could try submitting a complaint now to the UKVI about the missing document, and if they agree that they missed it, the you could make a request for a refund.

If the decision does go to appeal, then there will be a review by an Entry Clearance Manager. These reviews are no longer carried out by the Embassy (in Bangkok), but are done in the UK, where the ECM should have access to all of the scanned documents.

[Trevor1809]

Why on earth did the ECO not make a phone call requesting evidence of an additional £36. A question of beaurocracy gone bonkers.

Nobody in their right mind is going to apply short of £36 so it has to be an error on the part of the applicant or ECO. If the applicant cannot show the additional £36 then the visa will be rejected but nobody with these savings will be unable to demonstrate an additional small sum such as this!

If the ECO has missed something then request a review on the grounds that the ECO has made a mistake. Jobsworth to the extreme!

The ECO should be retaining full copies of documentation, how else are they supposed to fight appeals!

I have long accepted there is a form of madness taking over at UKVI but this is the worst example yet!

Just goes to show that providing everything that UKVI ask for and that you meet all the requirements that there is not zero risk of a rejection.

[7by7]

Thanks for the clarifications, Tony.

Most helpful to the OP, I'm sure.

You've also updated my information and corrected my mistakes, for which I'm grateful.

[bobrussell]

An ECO is allowed to make errors, they are human! The idea that a very expensive application is to be rejected for the price of a taxi fare strikes me as crackers. The ECO actually accepts this is the case 'de minimis' so why on earth did he or she not do something about it.

Clearly the applicant is going to meet the requirements with little or no effort so why was there no phone call to ask why the figures were short? Tens of thousands short, thousands short - refuse but tens??

If the ECO can use terms such as de minimis then he or she are well enough educated to think for themselves.

UKVI are making more and more bizarre decisions and making lots of errors, clearly they should accept the fact that they need to show a degree of commonsense even when they have no flexibility under the rules.

[Trevor1809]

An ECO is allowed to make errors, they are human! The idea that a very expensive application is to be rejected for the price of a taxi fare strikes me as crackers. The ECO actually accepts this is the case 'de minimis' so why on earth did he or she not do something about it.

Clearly the applicant is going to meet the requirements with little or no effort so why was there no phone call to ask why the figures were short? Tens of thousands short, thousands short - refuse but tens??

If the ECO can use terms such as de minimis then he or she are well enough educated to think for themselves.

UKVI are making more and more bizarre decisions and making lots of errors, clearly they should accept the fact that they need to show a degree of commonsense even when they have no flexibility under the rules.

I would assume that you would have the right for the Parliamentary Ombudsman to investigate maladministration. Apparantly with the Home Office the Ombudsman finds in favour of the complainant in 67% of cases.

[bobrussell]

The Independent Chief Inspector of Borders has been very critical of the refusal of UKVI staff to contact applicants where small issues are found. They can phone interview trying to catch people out but a missing bit of paper, a small oversight or confusion does not result in a phone call. This is built into the rules!

£36 must be the smallest reason to refuse a settlement visa ever!

Edited January 25, 2016 by bobrussell

[rcmk]

Thank you to everyone who has responded and for all the invaluable advice given. I am looking in to all suggestions of courses of action just now. Also, thank you for all the indignation on our behalf, it's quite the morale booster! I would almost prefer if the applications were processed over a longer period of time like the Australian ones for example, so that situations like this might be avoided. Ours took only 6 days, and missing documents just feels a bit rushed!

[tonyk]

All refusal appeals are sent to Bangkok to initially be reviewed by one of the ECMs. As the ECO says this is de minimis and why he then quotes the rule and calculation for a shortfall in the income requirement is totally nonsensical.

[7by7]

The error the ECO seems to have made here is not in refusing when the amount of savings fell just £36 below the minimum required. The apparent error was in missing documents which showed that the amount was actually above the minimum required.

£36 may be, indeed is, peanuts; but the required minimum figure is set in law and it has to be met or exceeded.

If it isn't, then the ECO has no choice other than to refuse; even if, as I said earlier, it is just £1 short.

Don't blame the ECOs for this; put the blame where it rightfully lies; Mrs May and her advisors.

[bobrussell]

If the applicant genuinely was £36 short and had absolutely no way of showing any more savings then the application should have been rejected. The reality is that by not questioning the fact that the applicant appeared to be £36 short, UKVI will have a lot more work to do and will have to do a reverse turn when the case is reviewed. Worse still they may stick to their guns and it all go to appeal.

If the idea is to reject as many as possible in order to get additional fees then this is the ultimate in meanness.

The applicant should have been given at least one chance to clarify the financial position. In this case it would have allowed the visa to be granted (according to the refusal notice) and the information given by the original poster. It probably would have taken less time than filling in the refusal papers.

ECO's may be the 'professionals' but that is no excuse for penalising the applicant who is probably not so experienced at filling in the forms.

Edited January 26, 2016 by bobrussell

[Tony M]

The ECO seems to say that it is not just a shortfall of 36 GBP. He says it is 36 GBP multiplied by 2.5, and then added to 16,000 GBP. So the ECO ( or rather the immigration rules) makes the shortfall 16,090 GBP ?

To re-affirm my earlier statement concerning appeals, current appeal procedures are that all appeals, and related work, are dealt with in the UK, not overseas, and this includes ECM reviews. The exception to this procedure is if the appeal has "a high level of risk", or if the appeal relies heavily on local knowledge. Under those circumstances the review can be done "in post". In the case under discussion here, it is most unlikely that the ECM review would be done in Bangkok.

[tonyk]

Tony M Where do you get the idea that ECM reviews are done in the UK? The Tribunal sends all appeals to the ECM in Bangkok to review if the refusing ECO does not concede.

[Tony M]

Tony M Where do you get the idea that ECM reviews are done in the UK? The Tribunal sends all appeals to the ECM in Bangkok to review if the refusing ECO does not concede.

tonyk, three ECM's have told me so, including one at Sheffield where some of the reviews are done. I can't really tell them they are wrong, as they are the ones who are actually operating the visa and appeal system. Certainly, Bangkok don't do any appeal work now, and all of their ECM reviews are carried out at Sheffield. I even have one here in front of me.

[7by7]

If the applicant genuinely was £36 short and had absolutely no way of showing any more savings then the application should have been rejected. The reality is that by not questioning the fact that the applicant appeared to be £36 short, UKVI will have a lot more work to do and will have to do a reverse turn when the case is reviewed. Worse still they may stick to their guns and it all go to appeal.

If the idea is to reject as many as possible in order to get additional fees then this is the ultimate in meanness.

The applicant should have been given at least one chance to clarify the financial position. In this case it would have allowed the visa to be granted (according to the refusal notice) and the information given by the original poster. It probably would have taken less time than filling in the refusal papers.

ECO's may be the 'professionals' but that is no excuse for penalising the applicant who is probably not so experienced at filling in the forms.

As previously said, Bob, you are directing your ire at the wrong target.

From the financial appendix

3.2.1. Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met. It is a matter of public policy to operate a financial requirement based on a minimum income threshold for the sponsorship of partners and children. It must be clear and consistently applied in all cases.

3.4.1 Under Appendix FM-SE there is discretion for decision-makers to defer an application pending submission of missing evidence or the correct version of it, within a 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.

So in a case where the financial requirement is not met then the ECO is simply not allowed to contact the applicant and say "You're £36 short; got that anywhere?"

Neither are they allowed to contact the applicant and ask for missing evidence because they would have to refuse as the financial requirement isn't met.

As you know, I believe this to be ridiculous. I think the minimum income and/or savings required are too high and I think there should be room for flexibility in the system.

But we have to operate in the world as it is, not as we wish it to be. Any changes will be a political decision taken by the government. I cannot see any government of any political persuasion changing this requirement; except to make it tougher!

ECOs deliberately refusing applications in order to make more money for UKVI? Sorry; fantasy. Why would they create more work for themselves? They are not on a commission!

Yes, many applicants may be confused at first by the various forms. Which is why an application should not be rushed and advice should be sought from a reputable source if needed.

But the forms do make it very clear that the onus is upon the applicant to provide all the necessary information and evidence to enable the ECO make their decision.

OK, this, too, may be confusing to someone with limited English; but even if the applicant doesn't understand it, their sponsor should.

All the above is general, onto this particular case.

From what the OP has said it seems that she and her husband do meet the requirement through their savings.

Furthermore, it seems that they provided all the necessary evidence to prove this; but some of it was missed by the ECO.

So this refusal is due to ECO error; which in a perfect world should not happen.

But you, yourself, have already said that the ECOs are human and so can make mistakes. It is regrettable when they do, not least because it causes great anguish, and possible further expense, to the applicant and sponsor concerned.

Let us hope that sense is seen in this case and the refusal is quickly overturned on ECM review.

[bobrussell]

Appendix FM17 section 3.4 allows discretion to defer an application pending submission of missing evidence or the correct version of it. They do not have need to defer it if they do not believe this will lead to a visa being granted. £36 sound exactly the situation where this should come into play.

They can also grant despite minor evidential problems. This could be as simple as proof of a few premium bonds that had been missed out.

I am sure this will be overturned on ECM review but presumably this has already been referred to someone more senior before such a major decision is made based on such a tiny shortfall.

Even within inflexible rules there is scope for a bit of common sense. It must be clear to anyone with half a brain that this is going to be challenged by the applicant even if it was his or her mistake. A quick phone call to clarify why there was such a shortfall would have been sensible, fair, money saving and humane.

[Tony M]

Appendix FM17 section 3.4 allows discretion to defer an application pending submission of missing evidence or the correct version of it. They do not have need to defer it if they do not believe this will lead to a visa being granted. £36 sound exactly the situation where this should come into play.

They can also grant despite minor evidential problems. This could be as simple as proof of a few premium bonds that had been missed out.

I am sure this will be overturned on ECM review but presumably this has already been referred to someone more senior before such a major decision is made based on such a tiny shortfall.

Even within inflexible rules there is scope for a bit of common sense. It must be clear to anyone with half a brain that this is going to be challenged by the applicant even if it was his or her mistake. A quick phone call to clarify why there was such a shortfall would have been sensible, fair, money saving and humane.

I agree, and I think that is exactly what the Australian Embassy would have done. They would have given a quick call, and asked if the applicant/sponsor was aware that there was a shortfall of 36 GBP. Presumably the applicant/sponsor would have pointed out the document that the ECO seems to have missed, and the visa would have been issued.

[7by7]

I totally agree that in a perfect world common sense would have been used and the ECO would have contacted the applicant.

But, unfortunately, as I read it the rules and regulations simply do not allow them to do so.

For that we have to blame Mrs. May and her advisors who drafted these absurd regulations; not the ECOs at the sharp end who have to abide by and work within them.

[bobrussell]

If there is a shortfall then the rules say it must be refused. I have no argument that this is right under the rules but every applicant should have a right (considering the size of the fee) to a fair chance to correct minor issues.

Even assuming the calculation was correct, it is still daft to refuse such an application without any attempt to clarify the situation. I believe the ECO was completely at fault by not even making an attempt to sort out a minor discrepancy. For him or her to hide behind the regulations confirms a level of stupidity that even Ms May probably would not accept.

Taking absurd regulations and interpreting them absurdly is a double whammy!

I can almost visualise the expression on a tribunal judges face should he or she be faced with this one! The cost of the UKVI barristers lunch allowance will be greater than the apparent shortfall!

[7by7]

I'm sorry, Bob.

I simply cannot see what it is you do not understand about para 3.2.1 of the appendix:

"Decision-makers cannot exercise any discretion or flexibility with regard to the level of the financial requirement that must be met."

Seems very clear to me that it is not that they can't be bothered to "clarify the situation." Nor that they are "hiding behind the rules." They have no choice.

Absurd as that may seem to you, me and an immigration judge.

As for Mrs. May; I'm certain her response would be a load of political waffle in an attempt to disguise the absurdity.

I think it is fair to say that we agree more often than we disagree, but I think we will have to agree to disagree on this.

[bobrussell]

I am not saying they have any flexibility with the required figures. What they do have is the ability to phone and question why there is an apparent shortfall in the numbers.

I have said that if the absolute maximum the applicant can show is below the required level then the application has to be rejected. What is wrong is that the applicant clearly believed acceptable paperwork had been submitted (and I have no reason to believe the OP's story) but the ECO did not identify all the savings.

The mean and unsavoury element is that the ECO had so little respect for an applicant that he or she did not make any attempt to phone.

Clearly someone short by many thousands should be rejected but an apparent shortfall of £35? This tiny sum has to be an error by the ECO or the applicant, both of which could be clarified by a phone call. ECO's should not be unthinking machines, blindly crunching figures.

Ms May may be responsible for much of the mean spiritedness within the visa system but this does not excuse the lack of consideration by the ECO IMO. A half decent person would have done what the Aussies would have probably done and picked up the phone or fired off a quick email.

Edited January 28, 2016 by bobrussell

[tonyk]

I called the tribunal today who confirmed that all appeals are sent to Bangkok for review.

[Tony M]

I called the tribunal today who confirmed that all appeals are sent to Bangkok for review.

Whatever the Tribunal may say, appeals and ECM reviews are now dealt with in the UK, and not at post, except in the limted exceptions I mentioned in my earlier post. ECM reviews are certainly not carried out in Bangkok or other posts where I have spoken with the ECM's. The Tribunal may send them, but Bangkok do not deal with them. ECM reviews are carried out in the UK, and, as I said, I have one here before me, a review done fairly recently in Sheffield.

This may, or may not be the right place to debate this point, as it may detract from the OP. You have my personal email, Tony, and we can discuss it there, if you wish. I'm not here to score points.

[theoldgit]

I do wonder that with ECM reviews now being carried out at places like Sheffield, what encouragement is there for ECO's to make reasoned decisions?

If I were an ECO and my manager was constantly having to reverse my decisions it might well be taken into consideration at my annual staff appraisal.

I suppose it could be argued that using ECM's who are not part of the decision makers line management chain would allow impartiality, but they probably have no local knowledge or an understanding of the ECO who made the original decision.

Tony M, do you know if they've reduced the compliment of ECO's at the Bangkok post?

[Tony M]

I do wonder that with ECM reviews now being carried out at places like Sheffield, what encouragement is there for ECO's to make reasoned decisions?

If I were an ECO and my manager was constantly having to reverse my decisions it might well be taken into consideration at my annual staff appraisal.

I suppose it could be argued that using ECM's who are not part of the decision makers line management chain would allow impartiality, but they probably have no local knowledge or an understanding of the ECO who made the original decision.

Tony M, do you know if they've reduced the compliment of ECO's at the Bangkok post?

I don't know if they have reduced the number of ECO's. I suspect not, as the decisions in Bangkok are currently being made very quickly. It may have happened, of course, and probably will happen if it hasn't already.

As I understand it, the feeling is that reviews of decisions don't necessarily need to be done locally, as the same argument applies to application decisions not being made locally. The ECO "posts" in the UK are getting larger and larger, and many applications are now "hubbed' to posts such as Abu Dhabi ( and Bangkok, of course). Why then is there a need for reviews to be done at post ( except in the circumstances I have already described) ?