Welcome to immigrationboards.com!
Chris2804 wrote: ↑Mon Jan 18, 2021 2:54 pmHello,
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?
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.Chris2804 wrote: ↑Mon Jan 18, 2021 11:37 pmTODMATT, 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.'
Wishing you the best out come in the step you have taken without getting to the courts. Good luck.Chris2804 wrote: ↑Wed Jan 20, 2021 10:23 pmHi 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.
Chris2804 wrote: ↑Wed Feb 17, 2021 11:30 amWe 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.
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.
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 ...'
This is good news and I knew the complaint would work. Congrats!Chris2804 wrote: ↑Wed Mar 17, 2021 9:44 pmHi 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 .
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