Appeal or reapply for UK Spouse Visa?

[wtmo]

Hi everyone,

First time poster hoping to gratefully receive some advice/pointers/gut-feelings regarding my wife's recently rejected spouse visa application for the UK (24 June 2016). Apologies regarding the length, hoping to pre-empt any questions and potential for other applicants to register their disbelief or lack of disbelief based on the info....

The reason for the refusal was that I failed to provide full specified evidence in relation to my self-employment as the director of a limited company, specifically:

• No registration of a Limited Company attached;
  
• No evidence of VAT payments and
  
• No bank statements to demonstrate income.

My application was submitted via a solicitor/consultant which was recommended on the Home Office website (although I'm thinking that using a Home Office recommended third party may have been akin to hiring a burglar as bank security.....). In the first (and only face-to-face) meeting I explained my situation as a Director which may (or may not) have been unusual and I wanted specific advice on from them. This is as follows:

My company year which the CT600 is based on runs from 1/12/2014 - 30/11/2015 (give or take a few days....). However, I didn't actually start a contract in that company year until July which effectively only gave me 5 months of work within that company year. Added to this I don't (I know I probably should but unfortunately I can't go back and change this at all) pay myself from my company account to my personal account on a regular basis. I just pay myself round sums of for example £1,000 or £5,000 or whatever when I feel the personal account could do with a boost or when an event (e.g. my wedding or an unnecessarily expensive spouse visa application) was coming up. In some ways my business account is basically a savings account.......

I informed the solicitor of this ad-hoc payment system and was basically told to get the accounts and take it from there. He left without notice within 2 weeks of the initial consultancy and the application was taken over by another solicitor at the same company. I obtained all the accounts, SA 302, CT600, dividend vouchers, Self-Assessment etc and in short these stated my earnings in the last financial year as £31,067 - clearly higher than the £18,600 financial requirement.

Prior to submitting the app I called and asked the solicitor directly "I notice there are no statements submitted (business or personal); should we submit my bank statements?" The response was that there was no need as the financial accounts were sufficient. Obviously, a week later my wife and I discovered this was incorrect.

I appreciate that the ECO was well within his/her rights to refuse based on the statements not being provided (and the other documents - although my company number was on several documents provided and the ECO could easily have spent about 15 seconds checking the number on Companies House or even google which would link through to Companies House; I also have a turnover of less than the £79,000 at which VAT registration was compulsory - although I am registered for VAT voluntarily - yet the ECO has appeared to presume that I pay VAT and therefore should have submitted receipts). I really feel discretion could have been applied - especially when some of the missing info is in the public domain such as the company number - and all missing info could have been provided with relative ease, possibly on the same day as the request!

I'm therefore in 2 minds as to whether to appeal or not. I've read other posts on this (and other) forums and the bottom line tends to say that an appeal is probably not worth it as the ECO was technically within his/her right to refuse. But have any posters successfully appealed? Or have any even unsuccessfully appealed, and if so were the circumstances similar?

If I appeal I'm also in the screwed up position that, with me not working for 7 months of that company year (I spent 3 months with my wife - fiancee at the time - and 4 months self-studying for a qualification I required in order to get the contract I ultimately ended up starting in July 2015) I did not transfer anywhere near £18,600 from my business to my personal account during that period which is the one covered by my CT600. Actually I've just looked at the amount I did transfer and it doesn't even come to £10,000...... So if I had submitted/did appeal and submit the statements I'd possibly (probably? certainly??) have been refused anyway even though the accounts say I earned £31,067........

I know the best advice is to seek a professional - but I did that on day one and ended up submitting an app without probably the most crucial documents. And despite spending a grand on this legal advice I'm still none-the-wiser as to what my position is re: the paper earnings not being converted into something that shows up on a statement.

On the other hand, since the end of the last company year 30/11/2015 I've transferred about £30K to my personal account. Is it worth shortening my company year to, for example, 30/06/2016 which would cover the year since I started the contract, getting new accounts for that year and having concrete evidence that I have earned and paid myself over and above the £18,600 requirement?

As I said, thanks for any advice that anybody is able to provide. This is my first experience of applying for a spouse visa so if I am able to provide any relevant advice, for what it's worth, to the failed applicants of the future then I am more than willing to share whatever information they would feel helpful as my contribution to the community.

GM

[rasg]

I am self employed without a limited company.

I don't know the answer to most of your questions but this is what I did.

I sent the visa requirements needed as a PDF to my accountant and let him get on with it to produce a set of accounts and to get the SA302 for me. The SA302 can take up to two weeks. I was lucky to get it in a few days. He charged me £100 to do it.

Presumably you do know that you can aggregate two years of accounts to produce a figure that exceeds the £18600 if you need to? I do my own VAT returns and just sent the four returns for the year of the accounts that I was sending.

Bank statements. I printed mine out from the Internet statements I get, stapled them together in months, popped them into Santander and they then stamped and dated the first page of each month.

I would complain to the visa company that advised you if I was you if they blatantly left things out. Basic stuff like that is unforgivable. possibly complain to the Home Office who recommended them if you get no joy from the visa company. They cost you a lot of cash.

[7by7]

I'll leave specific advice to those more knowledgeable in this area than I; but my gut feeling is that as you were refused for not providing documents which the guidance says you must submit means that an appeal will probably fail.

Although the ECO does have some discretion to ask the applicant or sponsor for missing documents in certain situations, they don't have the time, and probably are not allowed, to go looking up records at Companies House or elsewhere. At the end of the day the onus is on the applicant and sponsor to submit all the required documentation.

I am intrigued, however, when you say

My application was submitted via a solicitor/consultant which was recommended on the Home Office website

As far as I am aware, the Home Office do not recommend individual solicitors, consultants or visa agents, and never have.

Can you provide a link to the Home Office page where you saw this advice?

[wtmo]

Hi Rasg,

Thanks a lot for your reply. You're right - I think a complaint to the solicitor is definitely in order. Not sending the bank statements was only going to lead to a request for them at best, or an outright rejection at worst. Especially galling as I specifically asked whether they were required.

I've done a quick average of the 13/14 and 14/15 company years limiting it to actual transfer of funds from business account to personal account. 13/14 brought up the average for sure, unfortunately only to the £16,500 mark........

My gut feeling is telling me to reassess with my accountant (whose expertise I trust) and probably reapply with something approaching a watertight financial requirement bundle (i.e. no compulsory evidence missing.

Cheers mate

GM

[wtmo]

Hi 7by7,

Actually I might have been unwittingly misleading by saying they were recommended on the Home Office website. From memory I entered my post code on the Home Office website in the "Find an Immigration Adviser" section, and was led to the site I found the agent I used on. I've just tried to replicate that search and what actually happened was that it contains a link to registered immigration advisers in England & Wales, which leads you to the Law Society website. From there I found the consultancy I used. "Recommendation" completely the wrong word to use in this instance. My memory failed me and my OP probably made it sound like the Home Office website was more proactive in my choice. On reflection, it wasn't...... I've added the link below anyway.

https://www.gov.uk/find-an-immigration-adviser/search-for-an-adviser

Cheers mate,

GM

[rasg]

Actually I might have been unwittingly misleading by saying they were recommended on the Home Office website. From memory I entered my post code on the Home Office website in the "Find an Immigration Adviser" section, and was led to the site I found the agent I used on. I've just tried to replicate that search and what actually happened was that it contains a link to registered immigration advisers in England & Wales, which leads you to the Law Society website.

On that basis if you get no joy from the visa company, complain to the Law Society!

I've done a quick average of the 13/14 and 14/15 company years limiting it to actual transfer of funds from business account to personal account. 13/14 brought up the average for sure, unfortunately only to the £16,500 mark........

My gut feeling is telling me to reassess with my accountant (whose expertise I trust) and probably reapply with something approaching a watertight financial requirement bundle (i.e. no compulsory evidence missing.

I'm not that sure it matters if you don't transfer the money into your personal account as long as it's your company alone and that you have control of all of the money in your account. That applied to me but I don't know how it applies to a Limited Company.

One of the real anomalies with being self employed is that you can’t combine savings with your income. You can for any other category of employment, pension or anything else. I don't know if this applies to a Limited Company. Again. Your accountant should have the expertise to know.

If you go to the following link it will allow you to download a PDF for the financial requirement. I deleted the pages that were not relevant and emailed those that were to my accountant and explained he had a bit of bedtime reading. The whole thing is 67 pages long!

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/525708/Appendix_FM_1_7_Financial_Requirement.pdf

[bobrussell]

The Home Office are quite quick to recommend an applicant consults an immigration specialist should you submit a complaint.

If you have paid either a solicitor or an OISC registered advisor then it is likely you have some form of redress if he/she/they have failed to submit information that is required. Some documents fall into a grey area between helpful and compulsory. This is where a paid advisor should be earning their fee!

On the face of it you seem to have a good case against them unless you have failed to provide them with information and instructed them to submit the application anyway.

You can be sure that anything like this will have been documented by them!

Have you talked to them and requested a reason why documentation was not submitted? What do they propose to do about the situation? They will carry insurance to cover failures like this.

These are pretty fundamental documents so UKVI can only be considered at fault because they failed to request the documents. They seem pretty reluctant to do this even though at £1000 an application, most people would consider it the right thing to do. I suspect reapplying will be the way forward sadly.

Talk to the advisors but don't take any nonsense from them if they have been negligent.

[wtmo]

Hi bobrussell and good evening once again rasg.

I'll definitely be raising a complaint with the solicitor. I called her last week to discuss the outcome: she said she was shocked herself at the result and had raised a complaint with UKVI regarding lack of discretion applied; she also mentioned a discrepancy between applications made in UK and those made externally then said the appeal fee would be £140, her fee to make the appeal £1,000 (on top of the £1,000 already lumped in her direction!) and then barrister fees on top..... I said I'd get back to her (which I will, with a complaint. The thought of rewarding what is, at the end of the day, her professional incompetence with a "double-yer-money" wedge irks me somewhat).

Re: rasg's comment about whether it will matter that I didn't transfer the money into my personal account as long as it's my company alone and that I have control of all of the money in the account. I'd love to know if that is true for company directors. That was my biggest concern pre-application and was the main driver in seeking legal assistance in the first place. Sadly despite being a few grand out of pocket I still don't know the answer! I am the sole director and as I said in the OP kind of treat it like a savings account in as much as I like to see it growing before transferring a lump sum over.

It might be overkill or I might be just plain wrong in my line of thinking, but if I was to shorten my company year to (for example) 30 June 2016 would I then require a CT600 covering 1 July 2015 to 30 June 2016 even though I have already covered 1 July 2015 to 30 November 2015 in a previous CT600? I'd like to be able to submit personal bank statements literally showing the £18,600 and some going into the personal account, almost all of which has been transferred since 30 November 2015 which my last CT600 was made up to...... Like I say, might be overkill but really don't want to leave any room for ECO comebacks. Incredible to think that if I make a reapplication I'll have spent over £6K on the process which is 1/3 of the blooming financial requirement! She is worth it though, bless her....

Once again thanks for your and everyone else's comments. My wife and I really do appreciate it

Cheers guys

GM

[rasg]

I'll definitely be raising a complaint with the solicitor. I called her last week to discuss the outcome: she said she was shocked herself at the result and had raised a complaint with UKVI regarding lack of discretion applied; she also mentioned a discrepancy between applications made in UK and those made externally then said the appeal fee would be £140, her fee to make the appeal £1,000 (on top of the £1,000 already lumped in her direction!) and then barrister fees on top..... I said I'd get back to her (which I will, with a complaint. The thought of rewarding what is, at the end of the day, her professional incompetence with a "double-yer-money" wedge irks me somewhat).

She should be doing the work that she should have done in the first place for nothing and I would insist she does if you can stomach using her again. With the help of your accountant you can do it yourself. You know from the refusal letter exactly what is needed. As I am self employed I can do pretty much anything with the money in both my business account and my personal accounts. I supplied statements from both. You need help from your accountant.

Re: rasg's comment about whether it will matter that I didn't transfer the money into my personal account as long as it's my company alone and that I have control of all of the money in the account. I'd love to know if that is true for company directors. That was my biggest concern pre-application and was the main driver in seeking legal assistance in the first place. Sadly despite being a few grand out of pocket I still don't know the answer! I am the sole director and as I said in the OP kind of treat it like a savings account in as much as I like to see it growing before transferring a lump sum over.

Again. Your accountant. I didn’t; have to visit mine. All done online and he posted the accounts to submit to me and the SA302 came directly from the taxman.

It might be overkill or I might be just plain wrong in my line of thinking, but if I was to shorten my company year to (for example) 30 June 2016 would I then require a CT600 covering 1 July 2015 to 30 June 2016 even though I have already covered 1 July 2015 to 30 November 2015 in a previous CT600? I'd like to be able to submit personal bank statements literally showing the £18,600 and some going into the personal account, almost all of which has been transferred since 30 November 2015 which my last CT600 was made up to...... Like I say, might be overkill but really don't want to leave any room for ECO comebacks. Incredible to think that if I make a reapplication I'll have spent over £6K on the process which is 1/3 of the blooming financial requirement! She is worth it though, bless her....

I can’t answer your questions on this. Shoot that PDF I linked to you over to your accountant. Get him to read it and do what's needed. Apart from the time I spent, it cost me £100 extra to the accountant and the visa itself.

Once again thanks for your and everyone else's comments. My wife and I really do appreciate it

[bobrussell]

You should be restricting your comments at this stage to 'why did you not send the correct papers with the application?'

Not sure this is really an appeal job as the application did not include required information. The idea of a solicitor charging to put right, the job they should have done right in the first place, is a bit rich!

Don't talk in terms of appeals until the solicitor has justified her actions. Make it clear that you were using her services precisely to prevent this sort of thing happening.

Assuming there are no major factors we are unaware of, the UKVI may well have behaved correctly under the rules!

[7by7]

In your position I would not use the same solicitor again; they have already shown their incompetence.

If she had even just read the financial appendix linked to by rasg and the specified evidence appendix linked to from there before 'advising' you, which she should have done, then she would have known exactly what documents are required and that ECOs have very little discretion in this, or any other, area.

In your position I would use a level 3 OISC advisor for any appeal rather than someone who has already shown her incompetence. A level 3 OISC advisor is also able to represent you and your wife at the tribunal and may well cheaper overall than the fee your solicitor is demanding.

I'd also use an OISC advisor if you want further professional help should you decide to reapply.

Which, as I said previously, is the course I believe you should take as from what you have said this refusal is correct under the rules so any appeal is, I believe, extremely unlikely to succeed.

When Parliament in the Immigration and Asylum Act 1999 decided to make it against the law to offer professional immigration advice in the UK unless registered with one of the organisations in your previous link they, I firmly believe, they made a huge mistake in allowing all solicitors to do so. (Does the fact that many MPs are also lawyers have anything to do with it? I think we should be told!)

This is because your average solicitor does not have the knowledge nor experience; they do very little, if any, immigration work.

They spend most, if not all, of their time on conveyancing, wills and probate, family law, civil cases etc.; many don't even handle criminal cases.

If using a solicitor again, ensure it is one who specialises in immigration work.

Or use an OISC registered advisor; who does specialise in immigration and, unlike a solicitor, has to prove their knowledge in order to be registered.

Edited July 8, 2016 by 7by7

[bobrussell]

I quite agree that immigration lawyers with experience are few and far between. My sister in law just struck lucky a few years ago. We had a very capable one almost on our doorstep. Sadly they have gone now!

I cannot see how an appeal is going to be successful (obviously we don't have all the detailed information) because the refusal seems correct under the rules. The solicitor seems to believe the UKVI are going to request more information rather than reject. She has just had a wake up call. Most people posting here are quite aware that when it comes to visas communication is a one way street!

My advice is to try to get your solicitor to put it right and/or recover as much of your costs as possible. Then use someone else.

[7by7]

You should definitely make a complaint about the poor service you have received; which has cost you not only her fee but the application fee as well.

First step is to make an official complaint to the firm.

In England all firms must have a written complaints procedure and must give you a copy if you ask for it.

At the very least I think that they should recompense you for all your out of pocket expenses including their fee and the lost application fee,

See Complaints about legal advisers.

Note that page is for England; use the tool on the left if you are in Northern Ireland, Scotland or Wales.