Kiwifruitbat

Hi Everyone.
Sorry for this long ramble but I would like to know if anyone is able to give me any advice on the next step to take in this situation, as the only way I can see to go forward is to contact an immigration lawyer ASAP in the morning.

I am a New Zealander and have been married to a Brit since 2010.
I applied for my spouse visa and received initial entry clearance in 2015 and arrived in the UK in April 2015
FLM was obtained on the 20/12/17 and I was issued with my Biometric residence Permit which expired on 28/6/20.
I applied for ILR in May 2020 and submitted my documents and new biometric facial recognition on the UKVCAS app. Heard nothing back until an email request for further information at the beginning of November.

Background information is - we have relied on my husbands salary to fulfill both the initial entry visa financial requirements as well as FLR in 2017 and have had no issues in obtaining these two visas.
My husband has always worked as an Engineer on a rotational position on a boat, spending 6 months of the year offshore at sea.
After obtaining FLR the boat my husband worked on was sold and he has been working as a land based Engineer on a new boat build, in Germany.
My husband has been paid by the same Canadian company since 2005 and earns above what is required to meet the financial requirement.
He commutes between our home in the UK and Germany where the new vessel is being built and he is paid by his Canadian employer into our UK bank account. Since moving to a land based position he pays his UK taxes via
self assessment.
Due to the nature of the yachting industry he does not have an official employment contract while landbased and will revert to a standard Seafarers Employment Agreement when the vessel launches and he goes back to sea.
For the past 2 applications and this current one for ILR we have always submitted a letter from his employer stating that he is a fulltime permanent employee and has been since 2005, his current position as Chief Engineer and his gross
annual salary as well as confirmation of the 6 months of pay slips from his employer - corresponding to the bank statements.

At the beginning of November we finally had an email from the homeoffice requesting information about where my husband pays tax so we sent through evidence of his UK self assessment tax returns for 2018/2019 and 2019/2020. The home office also asked for his employment contract, audited or non audited accounts as well as further tax and banking information. We sent through the tax and banking information but stated that he does not have an employment contract and asking for clarification on what accounts they required. The caseworker seemed to think that my husband was/is the Director of this company so we made it clear that he is a full time salaried employee and we do not have access to his employers company accounts. We further repeated this over the course of a few backwards and forwards emails with the caseworker.

We heard nothing back until today when I received an email stating that I do not qualify for ILR but they are satisfied that I would be granted LLR for another 30 months if I pay the NHS surcharge in 10 days time. A failure to pay the immigration health surcharge will mean your application for limited leave to remain will be treated as invalid, we will not be able to grant you limited leave to remain and your application fee will not be refunded. You will not be able to appeal this decision and you may be liable for removal from the United Kingdom.


Reasons I failed
- you fail to meet the requirements of R-ILRP.1.1. (e) with reference to E-LTRP.3.1. of
the Immigration Rules. This is because we have requested on three occasions for
further information specifically unaudited/ audited accounts, official employment
contract and tax submission confirmation for tax year April 2018 - April 2019 and
April 2019 – April 2020 to consider your sponsor’s finance. (This information we sent through as requested on Nov 6th)

Can anyone shed any further light on where I have gone completely wrong with this application?
Should I appeal this decision and if so - how do I do that?
Or is my best bet to hire an immigration Lawyer?
Or do I just suck it up and pay the NHS surcharge and do another 2,5yrs on LLR?

Thank you in advance.

scot47

I would say, pay the NHS surcharge and get another 2.5 years of Limited Leave

SanDiegogirl

Confusing that, while he has a letter from a Canadian company stating he is paid as a fulltime permanent employee, the OP does his own tax assessment - something which is usually done by folks who are self employed. Hence I can see why the HO asked where he is paying taxes and for audited or non audited accounts.

Full time employees usually have their taxes deducted by their company. Sounds as though the Canadian company does not have a UK presence in order to do payroll taxes, and has an 'arrangement' for the OP to do his own taxes since 2017 when he became land based.

I would say that the HO is not convinced your husband is a full time employee of the Canadian company even with the presentation of payslips and bank statements.
If they 'think' he is actually self employed then tax records, tax payments, audited and.or unaudited etc etc must be provided to show gross income, tax paid etc.

You have the option of paying the health surcharge, remaining in the country and sorting out your finances - ready for the next application in 30 months.
You can't appeal by the sounds of it.
Yes, get advise to sort out your finances

Kiwifruitbat

Thanks for the advice - we've since spoken to a Lawyer who advised us to apply for an Administrative Review as it seems that (after re-reading all the communications) that the HO assumed my Husband is a company Director because they said we submitted his CT600 company tax return at the time of initial application. This is plainly untrue as we'd never even heard of a CT600 & had to look it up....in fact the only tax documents we ever submitted were the two tax returns the HO asked for as further evidence. My Husband is a full time employee of a Canadian company that has no presence in the UK & so he has to pay UK tax by self assessment as we explained to the HO, but were apparently ignored. I've read several complaints of people being refused visas for supposedly not submitting documents when they had in fact done so, but never anyone being denied on the grounds of a document that never existed! We have now paid the IHS fee to avoid the threatened deportation (is now £1500), & the Lawyer has offered to help us submit an Administrative Review for £1000(+ VAT) but have also advised us to enlist a Barrister to help write it for a further £1000+.....! I am obviously tempted to submit the AR online myself to save a further couple of grand as I feel we have a good case, but if the HO can make documents appear out of thin air I am also worried that we will be refused again for some other unfathomable reason. I clearly don't want to re-apply for the same reason(aside from the cost), as we are not at fault & feel extremely hard done by.

Has anyone else found themselves in this situation & if so, what would you advise?

SanDiegogirl

Submitting the AR form is not the main issue here..... setting out your case that your husband is employed and not self employed IS.
If you can present t he case such that the HO will reverse its decision, then go for it.
If you have doubts as to your ability to do this then paying for a barrister is not money wasted.
Any chance you can scan in the refusal letter? The actual reasons given.

Kiwifruitbat

I totally agree but surely all it should take is for the HO to check whether a CT600 was submitted (or not as the case may be)? Probably I'm being naive, but the mistake is theirs & could so easily be rectified by confirming the non-existence of the document. We provided all the paperwork required as set out in 'Section 2 of Immigration Rules Appendix FM-SE: family members specified evidence' for salaried employment outside of the UK just as we did successfully at the LLR & FLR stages & nothing has changed. I really don't know how else we could prove my husband is employed beyond the letter stating that from his employer - get another letter perhaps?

There were actually three documents listed on the refusal letter that (they say) we failed to provide, but requests to see these documents all stem from the same non-existent CT600 dilemma. I won't post the whole letter as it has too much info, but the reasons for refusal are posted at the top of the following argument I'm writing (but haven't yet sent) stating my case for an AR:-According to the Decision Letter I received, my application for Indefinite Leave to Remain was refused on the basis of the following:-

“You fail to meet the requirements of R-ILRP.1.1. (e) with reference to E-LTRP.3.1. of the Immigration Rules. This is because we have requested on three occasions for further information specifically unaudited/ audited accounts, official employment contract and tax submission confirmation for tax year April 2018 - April 2019 and April 2019 – April 2020 to consider your sponsor’s finance.”

“Unaudited/ audited accounts” - It was alleged by the Caseworker in an email dated 16th November that I submitted a CT600 with my original application which had led them to believe my Husband (& sponsor) is the Director of a limited company & as such they would need to see audited or unaudited accounts of his company as evidence. This is incorrect as at no point did I submit a CT600 as my husband is a full time employee & is not & has never been the director of a limited company. He is employed by a Canadian company with no presence in the UK & so pays his taxes in the UK via Self Assessment. He is not self employed. We have never been in possession of a CT600.

“Official employment contract” – This I could not supply as my husband does not currently have a contract of employment. I explained this in an email to the Caseworker on 16 November:- “My husband is a Seafarer & would normally have a contract when working at sea but he is currently working on a new build vessel ashore & will not have an official contract of employment until the vessel is completed & launched, at which point he will have a standard Seafarer's Employment Agreement.”.

“Tax submission confirmation for tax year April 2018 - April 2019 and April 2019 – April 2020 to consider your sponsor’s finance.” – After the initial request from the Caseworker to submit this evidence on 6th November I sent my Husband’s completed 2018/2019 tax return and his 2019/2020 tax return which at that time hadn’t been submitted to HMRC. This was subsequently submitted to HMRC and at the further request of the Caseworker on 17th November to see the evidence this had been submitted, I then sent on the 2019/2020 tax return online submission confirmation later on the same date.

I hope all that makes sense. Our next dilemma is that having been advised to apply for an AR by the Lawyer despite their being no option of it mentioned on the Decision Letter, I'm wondering if a 'Reconsideration Request' is our better option. Trouble is you only have 14 days to apply for one or the other & time is running out for us...

SanDiegogirl

Can't offer any more assistance, but would certainly demand sight of the CT600 document.

A question: under what status does your husband submit his self assessment taxes? The Canadian company he is employed by does not, apparently, have a UK presence; your husband is not self employed with his own company; so how does he pay self assessment taxes.?

spouse of scouse

Hi Kiwifruitbat, I'm sorry to hear about your refusal. I note that the exerpt of the email you posted in your opening post doesn't say you can't appeal the current decision to refuse your ILR, it only states that if you don't pay the IHS so that the Home Office can grant Limited Leave to Remain (LLR), then you would fail to be granted LLR and you couldn't appeal that decision. What I'm saying in a roundabout way is that is seems there is no bar to you applying for an Administrative Review (AR) based on the fact that your ILR caseworker did not apply the immigration rules to your application correctly, but best to have that confirmed by a lawyer which you've done.

You sound very competent to complete your own AR but I agree with SanDiegogirl, if you feel unsure about it then a lawyer who's experienced in this area would be a good investment. In case you haven't seen it already, these are the guidlines the Home Office has issued to its caseworkers for reviewing AR requests https://assets.publishing.service.go...-v10.0-ext.pdf

Wishing you the very best of luck.

SanDiegogirl

Were you advised in your refusal letter that your case is eligible for Administrative Review?

https://www.gov.uk/ask-for-a-visa-ad...oure-in-the-uk

If you're in the UK

You’ll be told in your application refusal letter if you can ask for the decision on your visa application to be reviewed. This is known as an ‘administrative review’.

Kiwifruitbat

Thanks for all the input everyone - to answer your questions SanDiegogirl, we're not aware of any 'status' as such under which my Husband pays tax but it's very common for UK Seafarers to use self assessment as they can apply for benefits this way when working at sea. He pays tax owed directly to HMRC via bank transfer.
Regarding the AR application issue, this is what has me worried as there's nothing in the Refusal Letter mentioning the option of an AR, but despite this our lawyer still recommends we apply for one. If we do & he is wrong then we will more than likely have missed the 14 day window to apply for a Reconsideration Request. Am currently trying to get a second opinion on this from another lawyer.

christmasoompa

I'd ask him to check his latest tax returns, as that will tell him.

Both my husband and I file self assessment returns each year, my husband's is as an employee, mine is as a sole trader. The application form will ask about being an employee paid via PAYE, or a director of a Ltd company, or a sole trader, etc, etc, so you need to find out which bit of the form he's completing and therefore which status he is claiming. I'd think that will be fairly crucial if you want to prove he's an employee, lots of employees do submit self-assessment tax returns (including my husband), but what's on that tax return will be the important bit.

Best of luck to you.

Kiwifruitbat

Thanks for the pointer - I should have thought of that.....however, my Husband's last two tax returns were filed on the basis of him being an employee. Both of these returns were submitted to the case worker on request, so more confusion as to why they're insisting he's the Director of a company - can only guess it goes back again to the mystery CT600.

christmasoompa

That is odd then, if he's filled in the self assessment as an employee and no mention of a Ltd company, not sure why they're asking for the CT600. I would think the lack of an employment contract is probably the issue, does he have a written statement setting out his employment terms? If he's a genuine employee it should be fairly easy to prove, and hopefully overturn the decision.

Best of luck.