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Dependant Family Member - Any ideas re financial dependance?

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bototo
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Dependant Family Member - Any ideas re financial dependance?

Post by bototo » Fri Dec 05, 2008 11:07 am

I'm applying for my 70 year old widowed mother to get ILR as a parent/dependant. I am the sponsor. I'm confident I can prove everything they require on issues like my financial situation, accomodation etc. But she does have some savings back in India (about Rs 400,000, circa £5,000).

I can't just make that money "disappear". And with the cost of living in India being around £100 per month UKBA may well argue that she's got enough there to live on for a while.

She does have some medical problems but I can't claim that this money is earmarked for treatment as it may look like she's applying to come here for free NHS care.

Any ideas? She is really frail, ALL her children and grandchildren are here in the UK, there is no close family in India to take care of her and I really need her to come to the UK so I can look after her.
Last edited by bototo on Fri Dec 05, 2008 3:13 pm, edited 1 time in total.

Wanderer
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Post by Wanderer » Fri Dec 05, 2008 11:26 am

Is she dependent ie do u send her money?
An chéad stad eile Stáisiún Uí Chonghaile....

bototo
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Post by bototo » Fri Dec 05, 2008 12:57 pm

Unfortunately, all those remittances were in cash till recently. I've about 3 months worth of on-record transfers to her bank account.

bototo
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Post by bototo » Mon Jan 05, 2009 2:15 pm

Anyone?

SUB-ZERO
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Post by SUB-ZERO » Mon Jan 05, 2009 5:42 pm

The savings that she has are gonna be a problem,£5 000 is a lot of money if living costs are £100 for a month.HO is really going to fight this one ,like u stated.they gonna feel that you can support her while she is there without the need for her to live with you in the uk and the savings that she has are going to be an added bonus to their case and its gonna seal the case for them.

Its really going to be hard,The success rate of dependent visas for settlement are very slim.

bototo
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Post by bototo » Mon Jan 05, 2009 6:10 pm

Thanks for your reply.

I've had one idea since then. Four years ago mum sold the family property for slightly more than she has in her bank account at the moment. None of us - her children - have made any claim on her for part of that money yet but the legal position based on probate documents in my possession is that she is entitled to only 20% of the proceeds from the sale of the house.

She has also been getting interest on that money for four years (exceeding Rs 130,000). Legally, she entitled to only 20% of that as well.

If we children put in our claims now she ends up with zero savings.

Am I grasping at straws here?

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Post by PaperPusher » Mon Jan 05, 2009 7:40 pm

Hello bototo

I have read through your past posts & it seems that your mum is in India and you want her to come over on a visitor's visa and then apply for ILR on SET(F)

It also does not seem that she is financially mainly dependant on you because she has her own funds that she could survive on the for the next 5 years or so. She may even have a pension or other income. Does your mum have any other income?

Has your mum already got a visitor's visa, say a 5 years one. Has you mum had an appeal recently, where she said something like "I will definitely leave the UK, please give me a visitor's visa"?

I can forsee problems and I am going to quote a much better authority than me here:
"Where the application comes post-entry from someone who entered as a visitor or a student, it may be sensible to enquire whether there has been a change of circumstances since entry, to deal with any allegation of deception on entry (ie, by failing to indicate an intention to remain as a dependant relative. [sic] But on such an application, the requirements of dependancy..........are to be applied by assessing the notional condition of the applicant if he or she were in the home country at the date of decision, rather than seeking actual dependency etc before arrival"
para 11.127, page 768, Immigration Law and Practice in the United Kingdom, Seventh edition, Ed Ian A Macdonald QC and Ronan Tool
"The dependency must be of necessicity, not of choice. In Zaman v Entry Clearance Officer, Lahore, an elderly Pakistani farmer and his wife applied to join their son in the UK. The father owned two farms and the income from these was given away to three sons who were still resident in that country, in accordance with custom. Nevertheless, the Tribunal held that they were not wholly or mainly dependent, since their dependence was not necessary.
para 11.129, page 770, ibid.
"An application for variation of leave may be refused if the person has failed to honour any declaration or undertaking given orally or in writing as to the intended duration and/or purpose of that person's stay. The situation arises most often when a family visitor decides to apply for leave to remain in the UK with the sponsoring family member, having said on arrival or at entry clearance interview that he or she would return home at the end of the visit.............So far as 'undertakings' are concerned Tribunal authorities under earlier rules held that the only undertakings which count are those which amount to false representations. In other words, a genuine change of circumstances since the 'undertaking' will not prevent an extension of leave. This appears to be the way the rule is interpreted by the Home Office in the IDI, which state that where there is good reason for the applicant's change of mind, such as unforseen circumstances, leave may be granted"
para 4.38, page 212, ibid.

I know you have said you have a solicitor, but I am just pointing out that these sorts of application are not always successful.

If you mum comes in to the UK and lies to the IO at the desk because she knows she is going to apply for settlement in the UK, this could get her refused further leave in the UK.

I don't want to rain on your parade, but perhaps she would be better off applying in India. Also appealing for 3 years like someone mentioned on here must cost a lot of money, and a lot of heartache.

Regular remittances do not count if they just improve the person's lifestyle, but they do not need them.

People do swith to dependent relative in the UK, but it is not automatic, nor necessarily easy in my opinion.

This is just my two pence worth, & I thought you might like it from an authority other than anonymous posters on a forum.

Regards

bototo
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Post by bototo » Mon Jan 05, 2009 9:35 pm

Thanks for your thoughtful input, PaperPusher, I appreciate it.

Just to confirm - my mother is actually in the UK on a VV - her ninth visit. This is a multiple entry visa. On this particular visa she has made previous trips to the UK and returned on time. On this occasion I'm reluctant to let her go back as her health has really gone downhill, she's become almost fully wheelchair bound and she's losing some of her faculties.

I had a business in India and rental income in India for over 15 years that used to go entirely to mum to help support her. I'm hoping to argue that this was a financial contribution. And to argue that not taking my share of the family property proceeds is also a contribution. Or does financial contribution have to be in a specified format of £x per month? I've also made numerous cash gifts to her whenever she came down or someone from here went to India. How do applicants prove cash gifts? They wouldn't take my word on this, would they?

She does have a pension.... I know, I know, but the pension certainly wouldn't cover the costs of her staying in a home (I've got costings, price lists etc from care homes in our home city) which she currently needs. In fact, it wouldn't cover half her current living costs in her little flat (again, I've got extensive receipts for six years showing how much it costed her for rent, electricity etc)

This would be her second application. She made one some years ago - from India - and was turned down on the financial dependency grounds. She thought it was a fair decision based on the rules and did not appeal that time.

My mother cannot lie. If she were asked a question by the IO she'd answer honestly. However, I accept that they may not believe that and it is incumbent on me to show that she did not expect to be making an application while on this visit.
In other words, a genuine change of circumstances since the 'undertaking' will not prevent an extension of leave
That looks encouraging.

Do you think that if I fail in the application I have a better chance of success at appeal where I can present the facts and mum can attend the hearing? Finances are not a problem and I can easily afford solicitors and barristers but, yes, there's the emotional cost of it dragging on for years. That is certainly something I would like to avoid.

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Post by PaperPusher » Mon Jan 05, 2009 11:06 pm

Hello bototo

I just wanted to point some issues out to you, but as you can see your mums situation is not totally negative.

I am not an expert, and I hope I have given you some things to think about before your next appointment with your solicitor, or before filling out the form with your mum.

As the rules state, your mum does have to be mainly financially dependent on you - thems the Immigration Rules.
Parents, grandparents and other dependent relatives of persons present and settled in the United Kingdom

Requirements for indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom
317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways:

(a) mother or grandmother who is a widow aged 65 years or over; or

(b) father or grandfather who is a widower aged 65 years or over; or

(c) parents or grandparents travelling together of whom at least one is aged 65 or over; or

(d) a parent or grandparent aged 65 or over who has entered into a second relationship of marriage or civil partnership but cannot look to the spouse, civil partner or children of that second relationship for financial support; and where the person settled in the United Kingdom is able and willing to maintain the parent or grandparent and any spouse or civil partner or child of the second relationship who would be admissible as a dependant; or

(e) parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; or

(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom; and

(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and

(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and

(v) has no other close relatives in his own country to whom he could turn for financial support; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity
Immigration Rules part 8 paragraph 317

I notice that you said you have looked at homes, but the rules say that the person
can, and will, be accommodated adequately .... in accommodation which the sponsor owns or occupies exclusively
That says, to me at least, that she must be coming to live with you.

PP

bototo
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Post by bototo » Tue Jan 06, 2009 7:38 am

I meant care "homes" back in India i.e. if she went back to India she's need to live in a home and my costings were for that. Sorry for any confusion.

I don't anticipate any problems with proving accomodation in my house. It's just the financial dependence issue.

bototo
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Post by bototo » Wed Jan 07, 2009 6:12 pm

This looks interesting and the bold text below really helps my case
Evidence of financial support may be:

* payments from the sponsor necessary because the applicant is unable to finance himself/herself, possibly from a small pension;
* a house provided by the sponsor;
* rent from land or property owned by the sponsor and paid to the applicant.

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Post by PaperPusher » Wed Jan 07, 2009 10:20 pm

I think you are getting the idea. It is more complicated than people make it out to be.

Someone posted on here recently about applying for a visitor's visa for their mum, and then when she arrived appling for ILR. I hope it is clear why this is not a good idea now. Your situation seems slightly diffierent.

bototo
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Post by bototo » Thu Jan 08, 2009 9:33 am

For the record I don't approve of people playing the system and coming in on a V V fully expecting to make an ILR application while here.

For other readers of this thread I'd like to point out that I've also discovered that what solicitors say about proving financial dependence is not always right. Mine said that the only way was to show regular payments into the dependent's bank account and build up a history of that i.e. history of support is important. From my research it appears that this is not the case. The applicant's dependence at the point of making the application is what needs to be considered and you don't necessarily have to prove support over the last x months. So, for example, if the earning parent suddenly dies, the applicant has no close relatives and you are an only child ... you may have a good case.

I would still appreciate any ideas on making the fact of cash payments more believable.

Also a question, this time on health: Does UKBA look negatively on anyone who might become a burden on the NHS? Mum's problems - like dementia and being wheel chair bound - are issues that we as her carers have to contend with and they don't make heavy demands on the NHS. But is the UKBA going to think otherwise? And if they do what effect does that have on the application?

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Post by PaperPusher » Thu Jan 08, 2009 8:07 pm

NHS care is not counted as a public fund, so it will not effect the maintance and accomodation part of the application.

Your mum's health should not be a reason for refusing the case, and I have never heard of something like that being used as a reason for refusal. It would be completely different on visitor's application of course.

In my last post I was pointing out the VV-ILR situation for the benefit of other readers too, not having a dig at you!
I would still appreciate any ideas on making the fact of cash payments more believable.
This one is hard.
The applicant's dependence at the point of making the application is what needs to be considered and you don't necessarily have to prove support over the last x months
Correct, but it also should not be one of convenience, that is why a history helps.

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Post by bototo » Fri Jan 09, 2009 8:48 am

That's a relief about NHS treatment. I wasn't worried so much about it affecting the maintenance and accommodation part of the application but that they would think she shouldn't be admitted because of the possible "burden" she could impose on the state. However, I suppose, as per the rules, that's not something they need to take into consideration.

As for the cash remittances I'm thinking of getting a letter from the Chartered Accountant in India who handled her affairs. He'd be willing to give a statement saying he knew of the cash payments from me.

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Post by Frontier Mole » Fri Jan 09, 2009 9:04 am

I agree that NHS treatment is not counted as using public funds however many NHS Trusts are now direct billing non EEA residents if they do not have a long term visa or ILR / PR.

As for consideration in regards health matters, that can be a positive. If your mother is assessed by a NHS Doctor as not being capable of looking after herself I believe you will add weight to your claim for change of circumstances. The failing health point would outweigh the funds available in India.

Even if the application was refused, you have the appeal process based on HR. A little old frail wheelchair bound Grand Mum with obvious difficulties is going to get a HR based decision in their favour. IJ’s look at the HR circumstances differently to the UKBA. They will get DL at least but that resolves the issue in that your Mum can stay in the UK.

bototo
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Post by bototo » Fri Jan 09, 2009 9:49 am

Thanks for your reply, FM.

My mother has received a little NHS care over the last few months and I've agreed to pay should a bill arrive - that's only fair as she's not entitled to NHS care. I only took her to the NHS doctor (and later, consultant) because I couldn't get a quick appointment at the local private hospital.
The failing health point would outweigh the funds available in India.
While the failing health isn't good for mum it's good that it "trumps" the funds issue. This application is going to be tough but it's looking better by the day :) thanks to the input from all of you.
They will get DL at least
Forgive my ignorance but what is DL?

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Post by vinny » Fri Jan 09, 2009 10:02 am

bototo wrote:Forgive my ignorance but what is DL?
Discretionary leave
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Post by joe777 » Fri Jan 09, 2009 1:32 pm

Frontier Mole wrote:I agree that NHS treatment is not counted as using public funds however many NHS Trusts are now direct billing non EEA residents if they do not have a long term visa or ILR / PR.
NHS treatment is free at the point of entry, but it doesn't stop them passing you on to social services, where community care etc can be means tested and may need paying for.

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Post by bototo » Thu Jan 15, 2009 9:57 am

I've managed to get letters from the NHS doctor and consultant (thanks FM) and they state unequivocally that her condition is deteriorating, that she is in extreme pain and that her condition is in a particularly "advanced" state. We knew all of that of course but it's great that I got this paperwork.

Now it's fingers crossed re the application.

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Post by bototo » Mon Jul 06, 2009 2:48 pm

Thanks everyone for your help. I'm sorry to say that her application was turned down.

I'm hoping you can help me again.

The rejection letter has turned her down on these grounds:
In view of the fact that you have submitted evidence of finances of your own including a pension and savings, the Secretary of State is not satisfied that you are wholly or mainly financially dependent on your son in the United Kingdom
Those seem to be the only grounds mentioned in the letter. They do go on to say that they considered her under Article 8 but that because she was aware when she entered the UK that she would have to leave, they do not consider their refusal a breach of Article 8.

They have explained that she has the right to appeal and I am therefore going ahead with taking this to the AIT.

Any help/suggestions anyone can give me?

Can I take it as safe that they accept everything else we've provided evidence for e.g. my financial ability, ability to accomodate her, that she doesn't have anyone in India to take care of her etc?

What are good grounds to argue they did not consider the financial situation adequately? That she has a pension and/or savings does not automatically mean that they are adequate; does not automatically mean that she's not mainly financially dependent on me, does it?

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Post by bototo » Wed Jul 08, 2009 10:31 pm

No takers? :(

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