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Visa extension refusal - Home Office error!

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Chris2804
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Visa extension refusal - Home Office error!

Post by Chris2804 » Mon Jan 18, 2021 2:54 pm

Hello,

My wife applied for her spouse visa extension on 20th May last year under the 5 year partner route. We finally received a decision from the Home Office on 16th December (great timing just before Christmas!). To our surprise, her application was refused on the basis that she supposedly failed to meet the £18,600 minimum gross financial threshold.

My wife was underpaid furlough during the first lockdown. However she could not complain for fear of losing her job. Because of this she appeared not to reach the threshold. However in their decision letter the Home Office stated that 'concessions allow your usual monthly gross of £1,494 to be used for your annual income calculation'. All good .... so we thought!

At the time my wife was paid £1,494 every four weeks as clearly evidenced in the letter from her boss, her payslips and her bank statements. This therefore produced an annual salary of £19,422, as stated in her application (i.e. £1,494/4 x 52), well above the threshold. However, for some reason, the Home Office chose to calculate her annual salary as if she was paid per calendar month (i.e. £1,494 x 12) producing an incorrect annual salary of £17,928, which is below the threshold. Consequently she was refused her visa extension under this route.

Since then we have been trying to contact the Home Office asking them to review their calculation. However they seem determined not to respond to our request. They replied instead 'upholding' an earlier complaint about the time taken to provide a decision, but then saying that the decision had now been made. I replied to their email stating that their decision was wrong because their calculation was wrong. That was 20 working days ago and still they have not replied. We also contacted our local MP over Christmas, and again we have received no reply.

My wife has blamed me every step of the way for the delays and the final decision. This has very badly affected our relationship. Notwithstanding the 7 month wait for a decision, they seem to have made such a simple, basic error with the salary calculation. Could anyone please advise how best to take this forward for a speedy resolution?

Thank you.

THO
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Re: Visa extension refusal - Home Office error!

Post by THO » Mon Jan 18, 2021 4:36 pm

My advice is to go for a pre action protocol. Email them at their complaints address and explain that you are seriously considering taking legal action against them due to the ECO's lack of due diligence when considering your application to extend the spouse visa, and the lack of any sensible dialogue.

Simply put that you have tried to contact them and sort things out, but have been forced to ask them to explain their decision, and why they reached the conclusion of her salary, since you have stated 13 x 4 week pay and not 12 x monthly pay slips.

This will force them to look sensibly at the ECO's maths and they will then have no choice to other than overturn the decision. IMHO you have nothing to worry about, since she is already here and you have lots of time to sort it out, it's not like a lot of people on here where their partner is in another country and the HO have made a mess of things and so he/she can't join them.

Should take no longer than 10 weeks from start to finish, but with Covid, maybe longer. Yours is a simple case. My only concern and I can't help you with, is does the fact that her salary fell short due to furlough mean they are right or is Covid taken into consideration, I don't know.

Just do not let it affect your relationship, it's the HO's mistake, and it will get sorted.

TODMATT
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Re: Visa extension refusal - Home Office error!

Post by TODMATT » Mon Jan 18, 2021 6:07 pm

Chris2804 wrote:
Mon Jan 18, 2021 2:54 pm
Hello,

My wife applied for her spouse visa extension on 20th May last year under the 5 year partner route. We finally received a decision from the Home Office on 16th December (great timing just before Christmas!). To our surprise, her application was refused on the basis that she supposedly failed to meet the £18,600 minimum gross financial threshold.

My wife was underpaid furlough during the first lockdown. However she could not complain for fear of losing her job. Because of this she appeared not to reach the threshold. However in their decision letter the Home Office stated that 'concessions allow your usual monthly gross of £1,494 to be used for your annual income calculation'. All good .... so we thought!

At the time my wife was paid £1,494 every four weeks as clearly evidenced in the letter from her boss, her payslips and her bank statements. This therefore produced an annual salary of £19,422, as stated in her application (i.e. £1,494/4 x 52), well above the threshold. However, for some reason, the Home Office chose to calculate her annual salary as if she was paid per calendar month (i.e. £1,494 x 12) producing an incorrect annual salary of £17,928, which is below the threshold. Consequently she was refused her visa extension under this route.

Since then we have been trying to contact the Home Office asking them to review their calculation. However they seem determined not to respond to our request. They replied instead 'upholding' an earlier complaint about the time taken to provide a decision, but then saying that the decision had now been made. I replied to their email stating that their decision was wrong because their calculation was wrong. That was 20 working days ago and still they have not replied. We also contacted our local MP over Christmas, and again we have received no reply.

My wife has blamed me every step of the way for the delays and the final decision. This has very badly affected our relationship. Notwithstanding the 7 month wait for a decision, they seem to have made such a simple, basic error with the salary calculation. Could anyone please advise how best to take this forward for a speedy resolution?

Thank you.

Can you post the letter please?
My opinions should not be constituted as an immigration or legal advice.

Chris2804
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Joined: Mon Jan 18, 2021 1:56 pm

Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Mon Jan 18, 2021 8:04 pm

Thanks THO that sounds like a good approach.

I don't think there should be a problem with furlough pay. The decision letter stated as follows:

'Your salaried income has a few months evidence of furlough pay.
Concessions allow your usual monthly gross of £1,494.00 to be used for your
annual income calculation
.'

Chris2804
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Mon Jan 18, 2021 8:09 pm

Hi TODMATT,

The relevant part of the letter was as follows:

GRANT OF LEAVE TO REMAIN
TEN YEAR PARTNER ROUTE
Dear Xxxxx,
You applied for leave to remain on 22 May 2020 under the Appendix FM 5-year
partner route.
However we have decided that you meet the requirements of the 10-year
partner route under paragraphs R-LTRP.1.1.(a), (b) and (d) of Appendix FM.
You have been granted on this route under EX.1 as it would be unreasonable to
expect you to leave the UK because you have a British child.
Accordingly you have been granted a period of 30 months limited leave to
remain on the 10-year partner route under paragraph D-LTRP.1.2. of Appendix
FM.
We have decided that you do not meet the requirements for a grant of leave
under the 5-year partner route under paragraphs E-LTRP. 3.1 and E-LTRP.3.2
(b) for the following reasons:
You state in your application that you have worked for your employer Xxxxxxx since 31 August 2019, that you earn the same amount continuously
working for them, and it is above the financial requirement amount.
You have stated that your annual income before tax for this employment in GBP
is £19,422.00.
You have provided the required 6 months of wage slips preceding your
application and corresponding bank statements along with confirmation of
employment from Xxxxxxx.
Your salaried income has a few months evidence of furlough pay.
Concessions allow your usual monthly gross of £1,494.00 to be used for your
annual income calculation.
We have calculated from this gross monthly salary that your gross annual
income is £17,928.00
You have failed to meet the £18,600 minimum gross financial threshold as
stated in Appendix FM of the Immigration Rules. You therefore fail to fulfil
ELTRP. 3.1 and E-LTRP.3.2 (b) of Appendix FM of the Immigration Rules.
ICD.4546 Partner 10 Yr 2 of 5
For further guidance please visit https://www.gov.uk/remain-in-ukfamily/eligibility
We have decided that your application does not meet the requirements of
paragraph GEN.1.11A. of Appendix FM. Your grant of limited leave to remain in
the UK is therefore subject to a condition of No Recourse to Public Funds. This
means you are not entitled to receive public funds to help meet your living and
accommodation costs (or those of any dependants). In addition your sponsor is
not entitled to claim or receive public funds on your behalf.

Korekt
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Re: Visa extension refusal - Home Office error!

Post by Korekt » Mon Jan 18, 2021 8:53 pm

Chris2804 wrote:
Mon Jan 18, 2021 2:54 pm
To our surprise, her application was refused on the basis that she supposedly failed to meet the £18,600 minimum gross financial threshold.
Your opening post makes it seem it was an outright refusal of the application.

You may request a reconsideration.
"Facts are sacred. Opinions are free."

TODMATT
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Re: Visa extension refusal - Home Office error!

Post by TODMATT » Mon Jan 18, 2021 10:29 pm

Did you employer state that you are paid every 4 weeks in hot employment letter?
My opinions should not be constituted as an immigration or legal advice.

Chris2804
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Mon Jan 18, 2021 11:25 pm

Thanks Korekt,

Apologies, I wasn't very clear, her application was not rejected entirely, she was moved onto the 10-year route rather than the 5-year route.

Chris2804
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Mon Jan 18, 2021 11:37 pm

TODMATT, yes her employer did state clearly she was paid every 4 weeks, extract below:

'This is to confirm that Xxxxx Xxxxx at the above address has been employed by our company since 31st August 2019. She is working full time and her position is permanent. Her current gross wage is £1,494 every 4 weeks.'

TODMATT
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Re: Visa extension refusal - Home Office error!

Post by TODMATT » Tue Jan 19, 2021 9:38 pm

Chris2804 wrote:
Mon Jan 18, 2021 11:37 pm
TODMATT, yes her employer did state clearly she was paid every 4 weeks, extract below:

'This is to confirm that Xxxxx Xxxxx at the above address has been employed by our company since 31st August 2019. She is working full time and her position is permanent. Her current gross wage is £1,494 every 4 weeks.'
The quickest way to get this overturned is to make a complaint. You have to be persistent because it seems the caseworker has made an error with the decision.

I would write a detailed explanation and point out the error in the letter and hopefully correct leave would be granted.
My opinions should not be constituted as an immigration or legal advice.

Chris2804
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Posts: 12
Joined: Mon Jan 18, 2021 1:56 pm

Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Wed Jan 20, 2021 10:23 pm

Hi all and thank you for your suggestions regarding my wife's visa problem.

Tod we did make a complaint, but that was more than 20 working days ago and we have heard precisely .... nothing. I believe you are not allowed to complain about the outcome of an application so this could be why? I've come to realise that if you give the Home Office the slightest opportunity to completely ignore a request, they will!

My wife has become increasingly agitated and stressed as she cannot understand how a relatively simple application such as hers can be so obstructed by such a basic error as that made by the Home Office. Further they seem intent on making it virtually impossible to even consider our issue.

We considered lodging an appeal or requesting an administrative review, but neither of these routes were open to us as the decision letter included no right of appeal (not very helpful!). So the next option open to us is to ask for a reconsideration (thank you Korekt!). We missed the initial 14 working day deadline (14 working days .. what a strange number .. clearly they originally thought 14 days as in 2 weeks then simply decided to stick working days on the end probably to tie in with the wording in other regulation!). But I had a documented case of covid with some debilitating additional symptoms that I am still being treated for now. This should (hopefully) be sufficient to explain the late request. The legislation does allow for extraordinary circumstances. They did after all use covid to explain the seven month delay in their providing a decision!

My wife applied for a reconsideration today. The legislation requires us to send the request in writing to the team who made the decision. We have done this (guaranteed next day, signed for) however I am conscious the HO have said they will return any written correspondence unopened! We received our decision by email so we also sent our reconsideration request to the same email address. However they say this address is not monitored! We have also sent it to a couple of other email addresses that have previously responded in some way when we have contacted them. Hopefully our reconsideration request will somehow find its way to the right people. I'm not holding my breath though!

We will give them one month to respond before taking the next step, the pre action protocol (thanks THO!). Again if we do not receive a reply from this approach we will consider legal action, being very conscious that we have to lodge this with the Courts no more than three months after receiving the decision letter.

I think it is very sad that we have to assume the Home Office will fail to adhere to their own procedures, but it is pretty clear that this is quite a likely outcome. I will update for any developments. Best wishes and good luck to anybody else trying to find their way through the Home Office maze.

AmazonianX
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Re: Visa extension refusal - Home Office error!

Post by AmazonianX » Wed Jan 20, 2021 11:01 pm

Chris2804 wrote:
Wed Jan 20, 2021 10:23 pm
Hi all and thank you for your suggestions regarding my wife's visa problem.

Tod we did make a complaint, but that was more than 20 working days ago and we have heard precisely .... nothing. I believe you are not allowed to complain about the outcome of an application so this could be why? I've come to realise that if you give the Home Office the slightest opportunity to completely ignore a request, they will!

My wife has become increasingly agitated and stressed as she cannot understand how a relatively simple application such as hers can be so obstructed by such a basic error as that made by the Home Office. Further they seem intent on making it virtually impossible to even consider our issue.

We considered lodging an appeal or requesting an administrative review, but neither of these routes were open to us as the decision letter included no right of appeal (not very helpful!). So the next option open to us is to ask for a reconsideration (thank you Korekt!). We missed the initial 14 working day deadline (14 working days .. what a strange number .. clearly they originally thought 14 days as in 2 weeks then simply decided to stick working days on the end probably to tie in with the wording in other regulation!). But I had a documented case of covid with some debilitating additional symptoms that I am still being treated for now. This should (hopefully) be sufficient to explain the late request. The legislation does allow for extraordinary circumstances. They did after all use covid to explain the seven month delay in their providing a decision!

My wife applied for a reconsideration today. The legislation requires us to send the request in writing to the team who made the decision. We have done this (guaranteed next day, signed for) however I am conscious the HO have said they will return any written correspondence unopened! We received our decision by email so we also sent our reconsideration request to the same email address. However they say this address is not monitored! We have also sent it to a couple of other email addresses that have previously responded in some way when we have contacted them. Hopefully our reconsideration request will somehow find its way to the right people. I'm not holding my breath though!

We will give them one month to respond before taking the next step, the pre action protocol (thanks THO!). Again if we do not receive a reply from this approach we will consider legal action, being very conscious that we have to lodge this with the Courts no more than three months after receiving the decision letter.

I think it is very sad that we have to assume the Home Office will fail to adhere to their own procedures, but it is pretty clear that this is quite a likely outcome. I will update for any developments. Best wishes and good luck to anybody else trying to find their way through the Home Office maze.
Wishing you the best out come in the step you have taken without getting to the courts. Good luck.

THO
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Re: Visa extension refusal - Home Office error!

Post by THO » Thu Jan 21, 2021 10:21 am

I do not think there is anything stopping you from starting the pre-action protocol route right now, and run it in conjunction with your reconsideration. Make it plain in your letter that you are asking for a reconsideration, but in-order to speed things up if they fail to respond correctly, you need these facts to take further action.

My experience has been that the HO is very hard work (refused visas for really stupid reasons and ended up going on the attack twice, to get what my wife and I are entitled too), but you must not give up, since they have made an error. You're not fighting to make a non existent case out of some spurious reasons you feel you should be given the visa, like a lot of people on this board, the ECO made an error, and you need to force them to see this, rather than allow them to ignore and hope you go away.

It will be far simpler to get them to overturn the decision if you attack, because it is simply not good enough to treat honest people like that. Tell them very clearly why you are right, and ask them to explain why they think you are wrong, so you have something you can take them to court over. i.e. you now know where their error lies and have something a judge can rule on.

Keep us informed of how you get on. Good luck. You will sort it out and overturn the decision, as you have right on your side, the HO might often be crap at their job, but you can reverse wrong decisions. And you are both together, which is a blessing.

Chris2804
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Mon Jan 25, 2021 11:53 am

Hi Tho, I think you are probably right regarding the pre-action protocol. I've had a quick look at other experiences regarding asking for a reconsideration and many people have not received a response after four months. At least with a PAP they have to respond within 14 days. Even if that then leads to a further 'reconsideration'. But it does mean that we will have completed the legal requirements around taking legal action at a later date if required.

My wife actually earns a little more now, so even if they do treat her 4 weekly salary as monthly she would still earn enough to qualify for the 5-year route. So we could potentially re-apply? I would need to confirm if this is possible given she has been accepted on the 10-year route. But because we feel wronged by the incorrect HO decision my preference is to make them correct it.

I am very busy with other matters for the next two weeks so I will allow them this time to at least acknowledge our reconsideration request (unlikely) but then I will go straight to the PAP. Thank you for your help and again good luck to everybody with similar issues to overcome. If you know you are right, persistence is the key.

Chris2804
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Posts: 12
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Wed Feb 17, 2021 11:30 am

We finally received a reply from the Home Office regarding my wife's visa application complaint. To recap - my wife was granted the wrong visa route because the HO calculated her annual salary incorrectly.

Their response is still confusing (please see below). Could anybody help with the following questions?

1. We requested a reconsideration but have been granted a 'review'. Would this be an administrative review or is this just another way of saying 'reconsideration'?
2. It is interesting they have asked my wife to return her BRP. Does this mean they are effectively cancelling their previous decision and re-starting the process?
3. The three month deadline if we applied for a Judicial Review is in one months time (16th March). Is this strictly enforced or would a delay be acceptable in order to allow the HO time to complete their 'review'?
4. Should we go ahead with the Pre Application Protocol (PAP) anyway?


'Thank you for your further email correspondence ... I am conducting an independent review of your complaint following your further submissions.

Your complaint:
You believe you have been granted leave incorrectly under the 10 year route when it should have been granted under the 5 year route. This is because you have said that your annual income is above the threshold required under Appendix FM of the Immigration Rules.

My decision:
In view of your correspondence, I contacted the casework team with your request for a review. It has been decided that your case will be reviewed and you will be contacted once there is an outcome or if further information is required. I am unable to provide a timescale regarding when the review will be completed.
In the meantime, you are requested to return your Biometric Residence Permit to the address that was provided on the covering letter of your decision. Please ensure you return this via recorded delivery.

There are no grounds to warrant further consideration of your case. I am satisfied with the decision to uphold your complaint. My response now concludes our complaint procedure ...'

THO
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Re: Visa extension refusal - Home Office error!

Post by THO » Wed Feb 17, 2021 1:24 pm

That is confusing, one line says they will look into it, and below it says they have upheld your complaint which would indicate they agree with you.

I think they normally ask for the BRP card back, so if they have not made the decision, when they do they have the card already and it saves time. But I agree, a confused message, but I think it is positive for you.

THO.

Chris2804
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Thu Feb 18, 2021 7:49 pm

Further update .....

Yes it does appear to be a reconsideration, we confirmed via admin review enquiries, despite their use of the word review, but based on experience of others it looks like four months plus before we might hear the outcome :? . I think by upholding our complaint it does not necessarily mean they agree with us, just that there are grounds to reconsider.

I think we will go ahead with the PAP ... my wife is really struggling with this as she thought her application was straightforward. It is badly damaging our relationship but I'm pushing forward with it the best I can.

Might investigate contacting our MP again now that the complaint procedure has come to an end.

TODMATT
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Re: Visa extension refusal - Home Office error!

Post by TODMATT » Thu Feb 18, 2021 8:11 pm

Chris2804 wrote:
Wed Feb 17, 2021 11:30 am
We finally received a reply from the Home Office regarding my wife's visa application complaint. To recap - my wife was granted the wrong visa route because the HO calculated her annual salary incorrectly.

Their response is still confusing (please see below). Could anybody help with the following questions?

1. We requested a reconsideration but have been granted a 'review'. Would this be an administrative review or is this just another way of saying 'reconsideration'?
2. It is interesting they have asked my wife to return her BRP. Does this mean they are effectively cancelling their previous decision and re-starting the process?
3. The three month deadline if we applied for a Judicial Review is in one months time (16th March). Is this strictly enforced or would a delay be acceptable in order to allow the HO time to complete their 'review'?
4. Should we go ahead with the Pre Application Protocol (PAP) anyway?


'Thank you for your further email correspondence ... I am conducting an independent review of your complaint following your further submissions.

Your complaint:
You believe you have been granted leave incorrectly under the 10 year route when it should have been granted under the 5 year route. This is because you have said that your annual income is above the threshold required under Appendix FM of the Immigration Rules.

My decision:
In view of your correspondence, I contacted the casework team with your request for a review. It has been decided that your case will be reviewed and you will be contacted once there is an outcome or if further information is required. I am unable to provide a timescale regarding when the review will be completed.
In the meantime, you are requested to return your Biometric Residence Permit to the address that was provided on the covering letter of your decision. Please ensure you return this via recorded delivery.

There are no grounds to warrant further consideration of your case. I am satisfied with the decision to uphold your complaint. My response now concludes our complaint procedure ...'



There's good news in the complaint even though it is worded badly.

The caseworker will be reviewing your decision again to see the point you have raised. I would recommend you to be patient and wait to hear from them. In the mean time, return the BRP in a recorded delivery and no need to issue any PAP in this regard because they are currently looking into it.
My opinions should not be constituted as an immigration or legal advice.

Chris2804
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Re: Visa extension refusal - Home Office error!

Post by Chris2804 » Wed Mar 17, 2021 9:44 pm

Hi all. Just wanted to provide an update as my wife received her 5-year route partner visa last week! If you know you are right persistence and patience can eventually pay off :D .

She is still concerned that the one year delay in receiving her visa could in turn delay when she can apply for Indefinite Leave to Remain. However I have assured her that she can still apply one month before the 5 year anniversary of her arriving in the UK under the 5-year route visa. Please let me know if I am wrong regarding this!

Many thanks again to everyone who has provided advice on how to deal with her situation. All suggestions have been very much appreciated. Good luck to anyone in a similar situation to ourselves.

Best wishes, Chris

THO
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Re: Visa extension refusal - Home Office error!

Post by THO » Thu Mar 18, 2021 10:13 am

Well, it was an obvious oversight on the HO's side, so you would always win the case. I'm sure this decision has now made your wife so relieved and dispersed any strain it was putting on your relationship.

Great news and I am happy for you both. Relax now.

TODMATT
Diamond Member
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Re: Visa extension refusal - Home Office error!

Post by TODMATT » Thu Mar 18, 2021 8:29 pm

Chris2804 wrote:
Wed Mar 17, 2021 9:44 pm
Hi all. Just wanted to provide an update as my wife received her 5-year route partner visa last week! If you know you are right persistence and patience can eventually pay off :D .

She is still concerned that the one year delay in receiving her visa could in turn delay when she can apply for Indefinite Leave to Remain. However I have assured her that she can still apply one month before the 5 year anniversary of her arriving in the UK under the 5-year route visa. Please let me know if I am wrong regarding this!

Many thanks again to everyone who has provided advice on how to deal with her situation. All suggestions have been very much appreciated. Good luck to anyone in a similar situation to ourselves.

Best wishes, Chris
This is good news and I knew the complaint would work. Congrats!
My opinions should not be constituted as an immigration or legal advice.

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