Skasunic

Hello all, this is my first post on this forum. I am a US citizen in the UK who recently applied to switch from a Tier 4 into FLR(M) after getting married to a British citizen in January. We applied at the Solihull PEO on January 25, 2017 using financial catagory A combining my husband's income and my own income from working on my Tier 4. When we applied I was a few days away from receiving my 6 month payslip with my company. As my hours for January were completed, my company was able to provide a letter confirming all of the information for January's pay and when it would be deposited. We knew that this was a risk, but decided to take it as my Tier 4 visa was going to expire on January 30, 2017, a day before I received my 6 month payslip. As such Solihull PEO was not able to give us a decision on the day and asked us for more bank statements to try and consider our application under financial category B (although I knew we didn't make enough using this category). When I sent them these bank statements I also sent them my January payslip and bank statement showing it had been deposited as at that point I had received my 6 month payslip. However, a week later we received a refusal notice, citing that I had not been at my job for 6 months and therefore could not combine my income with my husband's, and subsequently did not meet the financial requirement. I have been given 14 days to file an appeal or leave the country. Home Office has kept my passport and BRP. Would we have any grounds to appeal? I understand that the day of which we applied I was a few days away from being at my job for 6 months, but they had been supplied with my 6th month payslip and corresponding bank statement during their request for extra documents since as at that point I had been at my job for 6 months. Therefore, this wouldn't necessarily be new evidence if taken to an appeal...at least I think? We have also considered reapplying at Solihull PEO next week, but am a bit concerned about being class an overstayer ( my Tier 4 expired whilst waiting for PEO decision on FLR(M)) and the fact that PEO did not return my passport or BRP with my refusal notice. How am I suppose to reapply at PEO before 14 days without my passport? Is there a way I could get it back or pick it up from Solihull PEO? Also, now that my FLR(M) app has been refused, are my work rights null and void? If I apply next week will they not consider my pay anymore? My work is willing to help out as much as they can within their legal right. My visa expired less than 28 days ago, and one HR member mentioned that they think they could keep me hired for at least 28 days, if this is true then maybe reapplying (given the passport situation being fixed) would be an option? It has also been brought to my attention that if I apply for an appeal, and then withdraw, I would receive 28 days to launch a new application and could retain my work rights during the whole process...is this a better option? Thank you for your time and consideration of this mess of a case. Just feel so defeated as I just want to start my life with my husband in the UK and cringe at the prospect of possibly having to go back to the US alone.

angie_329

Personally I would consult a visa agent that is experienced in dealing with appeals and/or refusal -as not all can be appealed- to get an initial assessment of your chances/the best way forward.

Medivisas.com are one who are OISC registered to level 3 and been around a long time. . They state they will only take on cases that have merit and give you an appraisal first. I have not used them but knew of them via my previous work in relocation.
What to do if Your UK Visa Application has been Refused | MediVisas

Skasunic

Thank you for the reply. I will look into it! I've been scared to speak with a solicitor given the costs involved. Our wedding and this recent visa application have not been very forgiving on our finances. I have posted on a quite a few forums though and almost all of the advice I am receiving contradicts. I really appreciate everyone's input, I just wish Home Office made this process more straightforward.

Skasunic

Does anyone know if my passport is still at Solihull PEO or does it get sent somewhere else after a refusal? And if I appeal, will a receive my passport back? It really freaks me out to be in another country without my primary ID being on me.

angie_329

Unfortunately the HO is rather opaque and one has to navigate the maze!

You can just phone and ask what the cost of this initial assessment of your situation would be. On their website it says 100 pounds for a consultation up to one hour. If you email them your refusal letter- they will have the information they need to tell you if you/they can do anything or you need to leave the UK and re-apply - if that is the only option or the cheaper option. It may be that only an administrative review is needed so ask about that.

Make a list of questions You can also ask them about your passport.

If you are not clear after speaking to them you can look up other oisc level 3 advisers on the gov oisc website; https://www.gov.uk/find-an-immigration-adviser

Then you can decide what to do also in relation to your financial situation.

If you are getting conflicting advice on forums then you do not have much option but to consult an expert, as you are running out of time. Until you know the facts you will not be able to make a decision.

angie_329

I would add that the first question I would ask an adviser is: was my application processed and the decision made in accordance with immigration law and the/its guidelines? (in case there was an error by caseworker).

If it was done correctly in law, then appeal or administrative reviews will probably not help and may be a waste of money. It may be then the better/cheaper long term option is to return to the USA and work towards your husband qualifying on his salary on a spouse visa for you. Thereby avoiding being an overstayer with possible ban.

Also did the caseworker have any discretion they could have applied to your case? ( I am thinking of the payslip issue).

I understand that the financial requirements are strictly applied so they have no wriggle room. They have to be met absolutely.

If you are told you can appeal I would ask: what is the percentage chance of success? Cost? Timescale?

And if the appeal is rejected will it adversely impact any future spouse visa application you may make?

If these questions are answered clearly then you will be able to reach a decision.

Vadio

You got good advice on another forum - you were refused because you did not meet the criteria for using your income, as you applied prior to being in your job for 6 months and could not provide the required number of payslips.

With all due respect, asking the same question on multiple forums hoping to get a different answer is not in your best interest. Either return to the US and apply for a spouse visa (assuming your spouse can qualify as a sponsor), or consult a really good immigration lawyer/visa specialist, which can be expensive - particularly if you get one who knows little but promises a lot. If you were rightly refused (which you were), there are no grounds for appeal.

BritInParis

Hindsight is a wonderful thing though it appears you did apply knowing you didn't have the requisite paperwork. You will need to lodge another application. If you're not permitted to do so from within the UK you'll need to return to the US and do so from there.

Skasunic

If members circulate multiple forums they are under no obligation to respond on each forum. Even your suggestion that I do not have grounds for an appeal have been contradicted given that the ECO did receive requested evidence of my 6 month payslip and bank statement after suggesting that he could use discretion. Therefore we would not be submitting any new evidence at an appeal. This is not to say that you are incorrect or that that the person who suggested that are wrong, but understandably this is why I wanted to gather a consensus from multiple forums. I received my refusal on Friday and was just hoping to get a bit further ahead on information through these forums before speaking to a solicitor on Monday.

Other people in my situation on these forums are being advised to file for an appeal, and wait it out until they are ready to withdraw their appeal and reapply (given how long appeals cases are taking to place). Although our hope for a positive appeal is small, would this be a viable option? This would allow me to maintain my life with my husband here and continue working. Then if we ultimately decide against an appeal and are in a better financial situation we could always withdraw the application and I could return to the US and reapply? My spouse is not able to meet the requirement on his own at the moment (his salary is 500 GBP short), if that was the case I would have returned home and launched a new application no question.

Skasunic

Also, a member on another forum sent the rule change memorandum that was produce by Home Office on November 3rd, 2016.

https://www.gov.uk/government/upload...emorandum_.pdf

"7.48. For those whose previous application was in-time but decided before their
leave expired, or was made out of time but permitted by virtue of the provision
outlined in paragraph 7.56, the 28-day period will be reduced to within 14 days of:
The refusal of the previous application for leave.

The expiry of the time-limit for making an in-time application for
administrative review or appeal (where applicable).
Any administrative review or appeal being concluded, withdrawn or
abandoned or lapsing.
This is to ensure that individuals to whom these circumstances apply also have 14
days to make a further application."

Please correct me if I am wrong, but that seems to indicate that I could make a further application in the 14 days following my refusal given that my initial application was made before me Tier 4 visa expired.

According to the EXPLANATORY MEMORANDUM TO THE STATEMENT OF CHANGES IN IMMIGRATION RULES PRESENTED TO PARLIAMENT ON 3 NOVEMBER 2016 (HC 667)

""7.48. For those whose previous application was in-time but decided before their
leave expired, or was made out of time but permitted by virtue of the provision
outlined in paragraph 7.56, the 28-day period will be reduced to within 14 days of:
The refusal of the previous application for leave.

The expiry of the time-limit for making an in-time application for
administrative review or appeal (where applicable).
Any administrative review or appeal being concluded, withdrawn or
abandoned or lapsing.
This is to ensure that individuals to whom these circumstances apply also have 14
days to make a further application."

Does this not suggest that legally I am allowed to make another in-country application within 14 days of my refusal?

Thanks!!

angie_329

I hope you can get some clarity tomorrow via an immigration adviser, now that you have had various inputs and opinons to consider.

Obviously it is a shock and upsetting to have this refusal and face having to return to the US without your husband. If all else fails hopefully your husband could find some additional part time income to bring his salary up to the required level for a new application down the line.

I believe you can supplement the salary shortfall with savings, but they may have to have been held for a certain time.
Let us know what happens.

Primetym

Hi Skasunic,

I just got a negative response (refusal) from HO today and here I am looking for an answer, your case is very similar to mine. I sent a FLR(M) application on 29/11/2016 before my Tier 4 expires on 31/11/2016.
Since then I have received many letters from HO saying that my application is complex and eventually I received another letter that said it's on hold. Then refusal today (29/08/2017) with 14 days right to appeal.
My wife and I graduated from uni the same time and she got a job that met the financial requirement, however she only worked on that job 3 months before my visa was about to run out and I had to apply combining her pay slips and a cash savings over 18k which was held in our account for 5 months and 25 days (5 days short of the 6 months requirement)

During all these months of delay we have sent some new documents proving that she has worked in her job for over 6 months (seems like they case worker didn't consider the new documents).

My question is can I make a fresh application from within U.K. Now that she has worked for 11 months and we have all the pay slips? Or can I appeal with new documents?

Thank you

John

SanDiegogirl

From the looks of it you applied for FLR without your wife being in her job for a minimum of 6 months and also not having savings in the account for 6 months.

I think you were correctly refused - (perhaps you could scan in your refusal letter, so we can see actual reasons for the refusal)

You cannot admit documents which were not available at time of application, so the case worker rightly did not accept the additional documents.

Your Tier 4 visa expired last November.

What does the appeal notice say?

As your Tier 4 visa has expired, if you wish to re-apply (and I think this is your only option) you will have to do this from your home country.

quiltman

At the risk of being flamed, why with all the stories on TV/Papers regarding immigration problems, do folks wait until the last minute to do things? UK Immi is very strict on the rules and it matters not a jot if you are 5days or 5mins early to meet the requirements. If you do not meet the requirements when you apply then it's immaterial that you meet them whilst the application is in progress. The judgement is made on the documentation etc submitted. A new application will likely succeed as OP now meets the requirements - I notice they say the case officer "could use discretion" - is this in writing ? If so then an appeal may succeed but if not then I presume the appeal would be based on the original documentation submitted and will fail. Or am I just being thick?

angie_329

The financial requirements are very strict, even one day out will incur a refusal. I believe you may be able to resubmit a new application within the 14 days from within the UK. but I suggest you consult an OISC registered immigration advisor ( level 3) immediately as the time is very short and if you exceed it you will be classed as an overstayer.

An appeal is likely to fail as the requirements have not been met on the application that was refused. It will also take months and you have to leave the country.

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