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Sponsor is on benefits - will this logic work for settlement

Questions and discussions about claiming benefits while living and working in the UK

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3point14
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Sponsor is on benefits - will this logic work for settlement

Post by 3point14 » Sat May 22, 2010 11:30 pm

Hi,

I wonder if someone could cast an eye over this logic for a UK non married partner settlement visa.

The facts:

I am a UK born resident, my partner is a Thai female, we have been in a relationship outside the UK for 5 years, we have a small child who does not need a visa due to having a UK passport (dual nationality), unfortunately my job fell through and I am claiming benefits. I want to bring her to the UK but supporting 2 homes without an income is hard, and I would rather bring her over now, rather than wait until I can get another job.

The proposal:

I am aware that the current authority on minimum income adequacy is taken to be the level of income support which that family would receive were they not subject to immigration control. I am aware of the non recourse to "extra" public funds as a consequence of her being given a settlement visa. I am aware of the tax credits joint claim disregard. I am aware than due to the length of our relationship outside the UK my partner qualifies for ILE but will be subject to KOL. I am aware of the accommodation requirements.

I believe my partner's application would be successful if I were still in employment. I think I have covered all bases on all requirements except the adequacy of finances and the non recourse to public funds.

I use only simplified example numbers in this example.

If my family were entitled, were my partner not going to be subject to immigration control, to income support and associated benefits payments of £200 per week and my personal benefits entitlement is £150 per week, then my application would fail the adequacy test and I could not claim the extra else the application would fail under the recourse to extra public funds stipulation.

However, if I had capital of say £2600 which would cover the shortfall for a period of one year (52*£50), then would this not plug the hole so to speak and allow a successful visa application on the grounds of financial adequacy.

I use the period of one year as it is widely used as the period beyond which one is thought unable to plan your own suicide and claim under your own life assurance policy. I do not see how they could insist you show the extra provision for longer than one year in all reasonableness. However, if you think one year is not enough, then surely the maximum period which can be considered is the length of the visa, some 27 months after issuance. If so, then a show of capital of (£50*52/12*27) £5850 would seem the maximum which they could need to see.

This is my logic and I would welcome any and all comments. Thank you.

djb123
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Post by djb123 » Sun May 23, 2010 5:54 am

Your logic does seem reasonable, though you may want to prove it to the ECO. You could produce a budget to show how you and your family could live on the money you would have.

The way the job market is I doubt anyone can say for certain they will get a job quickly so normally I would think you'd need to aim for the length of the visa which is 2 years. But in your case as your partner could in theory get ILR very quickly you may not need to show a period that long, though obviously best if you could.

Have you factored in the cost of flights and visas? Is this money you already have? As the ECO may question where it came from if you are borrowing it from family, etc.

3point14
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Post by 3point14 » Sun May 23, 2010 5:53 pm

The argument that one can produce a budget and live within it was debunked by the ruling which established the income support level as the minimum acceptable level for income adequacy. It was accepted that people could live on less than that figure but it was also held that people cannot be forced to do so and thus, the adequacy level was established. Therefore, one only has to prove you have income support levels of income as that is what you need. Your personal preference for exuberance or penny pinching is immaterial.

I know I put forward the 27 months but to be honest, someone who has a great job and fine income cannot state that they will have a job or that income in 27 months time. I think the one year is a more realistic timetable and I could well argue that even that is looking too far into the future.

Yes, she can get ILR a week later if she passes KOL. It is an utter rip off that it cannot be taken outside the UK.

Good points about the flights and other associated expenses. A separate budget for non maintenance items would seem to be the right way to deal with that.

I can construct a very good argument that my supporting her overseas costs far more than the minor extra expense of accommodating her in the UK. However, I am not sure whether to put this forward or not ? I think yes.

John
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Post by John » Sun May 23, 2010 6:01 pm

Yes, she can get ILR a week later if she passes KOL. It is an utter rip off that it cannot be taken outside the UK.
Are you sure that her English is up to it, to successfully study for the test and to pass it? No doubt she might do that eventually but in reality only after a period of time in the UK.
John

3point14
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Post by 3point14 » Sun May 23, 2010 6:04 pm

John wrote:
Yes, she can get ILR a week later if she passes KOL. It is an utter rip off that it cannot be taken outside the UK.
Are you sure that her English is up to it, to successfully study for the test and to pass it? No doubt she might do that eventually but in reality only after a period of time in the UK.
Sorry, I just meant that technically she could, even on the way from the airport if she so chose as opposed to waiting the 24 months.

At the moment, she is getting about 10-15 on the online test questions. She needs 18/24.

I would welcome your thoughts on my logic though. At a rough £1000 cost for TB screening, visa application and associated costs, I would rather not have to fail and go to appeal.

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Post by John » Sun May 23, 2010 6:17 pm

I am not sure what you mean by "associated costs" but surely the cost is quite a bit less than £1000?

But I am not sure where in Thailand she is living. Is it quite a journey to Bangkok? For example to IOM to have the TB test done? And to lodge the papers at VFS?

Do appreciate that there are clearly severe difficulties in Bangkok at the moment, following the Red Shirt demonstrations. It might be a while before matters return to anything like normal.
John

3point14
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Post by 3point14 » Sun May 23, 2010 7:14 pm

I was just rounding it up. I know the visa is THB 33,488 (around £731) and the TB is THB 2600 (around £57) but as we've a child who she cannot reasonably leave for a couple of days, the easiest way is for her to go stay with her friend for a week and drive over to Bangkok twice for the TB check and the pre arranged visa appointment. That is the other cost.

She is some 6 hours minimum from Bangkok so there and back in a day for two appointments is not going to work.

3point14
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Post by 3point14 » Sun May 23, 2010 7:16 pm

John,

Do you think my logic, of covering the mismatch in public funds fully satisfies the minimum adequacy requirements and if so, for how long do you think one must cover that amount ?

I suggest a year at most.

djb123
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Post by djb123 » Mon May 24, 2010 5:10 am

3point14 wrote:The argument that one can produce a budget and live within it was debunked by the ruling which established the income support level as the minimum acceptable level for income adequacy. It was accepted that people could live on less than that figure but it was also held that people cannot be forced to do so and thus, the adequacy level was established. Therefore, one only has to prove you have income support levels of income as that is what you need. Your personal preference for exuberance or penny pinching is immaterial.
Where the sponsor is already in the UK the ECO will not just look at the amount of income compared to the minimum acceptable level for income adequacy, they will look at your current outgoings based on what you state in the application and your bank statements. Your current standard outgoings (eg rent, utility bills, etc) would need to be inline with supporting your family on a minimum income, and a realistic budget statement would only help to show it was. If you can't make your figures add up, then there's a good chance the ECO won't either.
3point14 wrote:I know I put forward the 27 months but to be honest, someone who has a great job and fine income cannot state that they will have a job or that income in 27 months time. I think the one year is a more realistic timetable and I could well argue that even that is looking too far into the future.
Agreed, but a lot of decisions are based on probabilities. Someone who has had a great job and fine income for many years is more likely to still have a great job and fine income in two years time than someone who hasn't worked in the UK for many years. Your aim is to show that you can support your family without additional public funds for as long as possible. In your case a few months is probably not enough, and a couple of years is plenty, but I don't think anyone will be able to say for certain what amount of time you can get away.
3point14 wrote:I can construct a very good argument that my supporting her overseas costs far more than the minor extra expense of accommodating her in the UK. However, I am not sure whether to put this forward or not ? I think yes.
A budget statement showing current outgoings and expected outgoings would be a great way of showing this.....

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Post by 3point14 » Mon May 24, 2010 5:20 pm

djb123 wrote:Where the sponsor is already in the UK the ECO will not just look at the amount of income compared to the minimum acceptable level for income adequacy, they will look at your current outgoings based on what you state in the application and your bank statements. Your current standard outgoings (eg rent, utility bills, etc) would need to be inline with supporting your family on a minimum income, and a realistic budget statement would only help to show it was. If you can't make your figures add up, then there's a good chance the ECO won't either.
Point taken but are you giving your opinion or quoting from statute or case law ?
Agreed, but a lot of decisions are based on probabilities. Someone who has had a great job and fine income for many years is more likely to still have a great job and fine income in two years time than someone who hasn't worked in the UK for many years. Your aim is to show that you can support your family without additional public funds for as long as possible. In your case a few months is probably not enough, and a couple of years is plenty, but I don't think anyone will be able to say for certain what amount of time you can get away.
I would think it difficult for anyone to make a case for longer than one year.
A budget statement showing current outgoings and expected outgoings would be a great way of showing this.....
My budget is well documented and will be below any income received. My utilities are automated via direct debits.

My thoughts are that the people making the decision are just not clued up enough. However, actually putting the numbers in front of them can be seen as being pushy. Yet if they are not aware of the numbers and just have some number their boss made up, then it would be far better to refer to the case law and make them aware that you are aware of the numbers which have been held to be adequate.

Making that call is where I feel exposed. I favour going in very lightly, perhaps with a simple reference to a budget which shows income and capital over the adequacy limits and my being able to live well within that.

????????

djb123
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Post by djb123 » Tue May 25, 2010 4:38 am

My comments are based on a mixture between my opinion, my understanding of the immigration rules, and my knowledge of cases that have been successful even though technically they didn't meet the level of income you keep mentioning.

You want the ECO to quickly look at your case and be happy that you can support your family without any further help from public funds. Any information you can give them to quickly make this decision can only help. As I said in my knowledge of cases where the financial side is weak it appears that budget statements have helped. I'm not suggesting a detailed breakdown of every last penny but a quick overview. Including for example that you say your utility bills are detailed, but they will increase with additional family members (especially in winter unless your family is use to cold weather?). I don't think it would be seen as being pushy just purely demonstrating that you have given it some thought and you are confident that you can support your family.

With a borderline case I think you are taking a risk if your financial argument is just that the minimum acceptable level of income is X, I can have an income of X so that will be enough. Especially because as far as I am aware the immigration rules do not mention that figure. Maybe you could use that arguement at an appeal using the previous case you keep mentioning, but you don't want to have to appeal.

A year may be enough, I personally couldn't say either way.

3point14
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Post by 3point14 » Tue May 25, 2010 9:39 am

I am in no doubt that were the income side of this application not an issue, it would take 5 minutes to process and agree the visa. You are right though that even in the current circumstances, I would want the decision to be as easy to make as possible and also in my favour.

I do take your well thought argument about utilities bills being higher in winter. I actually never thought of explaining that, though I am on a plan which I manage across the year. My work to prove to E-on that I really do use this little electricity will come in handy then !

I think that if someone's partner had to wait the 24 months before applying for ILR, then you might have to cover that whole period in your explanation but as my partner does not have to wait the 24 months on the basis of our relationship outside the UK, I think a year should be sufficient. I don't like to make particular reference to it though, but will refer to it as an amount over the income support level for a long period of time or some such phrase.

I think that on the balance of probabilities, it is rather obvious I present a good case when it comes to future employment. I will also look at how best to structure my partner's case for future employment in the UK. So I would like to think the future expectations are covered.

That just brings us back to the present and in the present we have the income support levels.

I actually took your advice and started to put together a budget last night, just a simple one at this stage. I think you are right, the numbers do show more than mere words and I think it removes any ambiguity in whether the sponsor can support the applicant within the existing public funds received. I think the addition of a general one line statement referring to the income support thresholds and the shown funds being quite some way in excess of that would be in order rather than using specific numbers, though I may use those as well.

Thanks for your comments. You provide some thought provoking ideas and I value your help and assistance.

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