Spouse Visa extension refusal

Hi,

We applied for an extension for a spouse visa after the initial 2 and a half years under the family visa application.

Got a letter back that your application and human rights claim has been refused, and it lists refusal based on human rights claim.

Is this just a matter of that the home office has made a mistake and should have considered our application on the basis of a family visa and not under a human rights claim?

We have submitted an appeal and need to send in supporting documents for the appeal.

Thanks for your help in advance.

It would be helpful if you could post the refusal wording with any personal details removed as it is otherwise difficult to understand how UKVI interpreted your application and supporting documents.

Haze77 wrote: ↑

Fri Nov 08, 2019 11:33 am

Hi,

We applied for an extension for a spouse visa after the initial 2 and a half years under the family visa application.

Got a letter back that your application and human rights claim has been refused, and it lists refusal based on human rights claim.

Is this just a matter of that the home office has made a mistake and should have considered our application on the basis of a family visa and not under a human rights claim?

We have submitted an appeal and need to send in supporting documents for the appeal.

Thanks for your help in advance.

Was the extension applied before visa expiry?

Were you or your partner earning sufficiently or had cash savings?

Was the A2/B1/naric comparability statement under red route was attached?

Are there any insurmountable obstacles for applicant or its partner if has to return back home/other country?

Refusal letter attached.

Many Thanks

seagul wrote: ↑

Fri Nov 08, 2019 2:24 pm

Was the extension applied before visa expiry?

Were you or your partner earning sufficiently or had cash savings?

Was the A2/B1/naric comparability statement under red route was attached?

Are there any insurmountable obstacles for applicant or its partner if has to return back home/other country?

Had you applied on flrm/flrfp application form? Also reply for above questions?

The appliction form was filled online and states "TYPE OF VISA / APPLICATION: Family Route"

Application was submitted before visa expiry

both spouses working and earning way above £18k

All documents were taken to the designated office and scanned.

Is that what you mean by red route please?

Many Thanks

Haze77 wrote: ↑

Fri Nov 08, 2019 5:32 pm

Is that what you mean by red route please?

Many Thanks

Red route is a naric assessment over foreign degrees. If you had attached A2 test then the refusal is definitely incorrect.

Yes. English certificate was provided.

What to do then please?

Have appealed.

Shall we just write on the grounds of appeal that wrong visa type was considered and should have been considered as a spouse visa extension?

and hope that the decision will be overturned before appeal?

Is there anything elkse that needs to be done?

Shall we employ a soilictor at this stage?

Many Thanks

Thanks for posting that, it really helps understand the process UKVI went through in assessing what you submitted. It seems like they looked more at how you don't meet the criteria for the various exemptions to the requirements instead of how you actually meet the requirements.

If you had intended to be considered under the standard spouse visa requirements, it doesn't look like UKVI did that so it may be worth a complaint to see if they will take a second look in addition to the appeal as they do sometimes make mistakes (which they usually seem willing to correct reasonably quickly). Contacting your MP also seems to help with this, but I suspect that isn't the case for the next few weeks.

"If you have a complaint about our service or professional conduct, we encourage you to email us at complaints@homeoffice.gov.uk"

https://www.gov.uk/government/organisat ... -procedure

Haze77 wrote: ↑

Fri Nov 08, 2019 6:17 pm

Yes. English certificate was provided.

What to do then please?

Have appealed.

Shall we just write on the grounds of appeal that wrong visa type was considered and should have been considered as a spouse visa extension?

and hope that the decision will be overturned before appeal?

Is there anything elkse that needs to be done?

Shall we employ a soilictor at this stage?

Many Thanks

What evidence exactly was submitted to meet the financial requirements?

What English certificate exactly was submitted to meet the English language requirement? At what level was it?

Completely blame the online system as it confuses so many people about extensions. If FLR M was chosen clearly they should have considered this straight away.

Its a massive shame you have to go through the stress with dealing with appeals. Know that section 3c applies on this case..do post back with outcome when you have it.

Got a reply as below from the compalints section. Stupid mistake on our part, selected no instead of yes.
Can a new application be made or do we have to go through the appeal process?

Many Thanks
=====================================================================================
Thank you for your email correspondence of where you have raised a complaint about the handling of your application for an extension of your spouse visa.

We have reviewed your case and note that you were granted entry to the UK as a spouse. However, on your latest application you have stated that you are unable to meet the financial requirements of the spouse visa route. Where the form states: ‘The Financial Requirement threshold which has been calculated £18,600.00. Will you be able to prove that the financial requirement is met?’ You have said: ‘No’.

As you indicated that you were unable to meet the financial requirement, you were therefore considered under the 10-year route which is standard to ensure a full consideration is given to applications of this type.

Your application under the 10-year route was refused because you could not provide evidence that there are insurmountable obstacles to continuing your family life together with your partner outside the UK. The guidance regarding insurmountable obstacles states that when assessing an application under paragraph EX.1.(b) and determining whether there are insurmountable obstacles, the decision maker should have regard to the individual circumstances of the applicant and their partner, based on all the information that has been provided. The onus is on the applicant to show that there are insurmountable obstacles, not on the decision maker to show that there are not. The assessment of whether there are insurmountable obstacles is a different and more stringent assessment than whether it would be reasonable to expect an applicant’s partner to join them overseas. A significant degree of hardship or inconvenience does not amount to an insurmountable obstacle.

The decision letter that you received includes details of the next steps that are available to you and the timescales that must be adhered to. It is also open to you to seek independent advice from a qualified UK immigration adviser about the UK’s Immigration Rules and requirements, and how they relate to your particular circumstances. In the UK, the Office of the Immigration Services Commissioner (OISC) regulates immigration advisers. The OISC website www.gov.uk/find-an-immigration-adviser provides a list of immigration advisers. You can also get advice from legally qualified professionals that are regulated by designated professional bodies.
I am unable to uphold your complaint.

I appreciate that this may not be the response that you had hoped for, however I hope that it has clarified the position and addressed your enquiry.

I believe I have addressed all the points you have raised. However, if you feel that there are specific aspects that have not been addressed you can request a review of our response within one month of the date on this letter by writing to us at:

Hi,

From what I can see there is a very good chance an appeal would be successful. I would advise get a good lawyer, (mine was very good, pm me if you want his details) £760, about 12 weeks end to end and the decision was overturned. My Lawyer said he would only take my case if he was as certain as he could be to win.

Much cheaper and less hassle than a new application.

THO.

Interesting.
Seems that even though you say you make over £18600K - because you mistakenly (?) selected that you could not prove it & therefore didn't input the details into the form (presumably?); they haven't bothered to check any of the financial documents that you sent as evidence & have just taken you at your word that you don't meet it and therefore just assessed your application as a human rights claim on the 10 year route.
Interesting insight into their processes if nothing else.
If this is truly the case, it is quite sad that a simple mistake could have this effect

TanJL wrote: ↑

Fri Nov 15, 2019 2:16 pm

Interesting.
Seems that even though you say you make over £18600K - because you mistakenly (?) selected that you could not prove it & therefore didn't input the details into the form (presumably?); they haven't bothered to check any of the financial documents that you sent as evidence & have just taken you at your word that you don't meet it and therefore just assessed your application as a human rights claim on the 10 year route.
Interesting insight into their processes if nothing else.
If this is truly the case, it is quite sad that a simple mistake could have this effect

I believe this is more or less how all government bodies work. They are saying that the burden is on applicant to prove that he or she qualifies, so if the applicant states she doesn't, they don't check it themselves.

It is sad and rather unsettling though, I agree

Did you apply for FLR(M) or FLR(FP)?

Did you provide the specified evidence?
If you do not, you will be automatically considered under the human right route.

Haze77 wrote: ↑

Thu Nov 14, 2019 11:50 pm

Got a reply as below from the compalints section. Stupid mistake on our part, selected no instead of yes.
Can a new application be made or do we have to go through the appeal process?

Many Thanks
=====================================================================================
Thank you for your email correspondence of where you have raised a complaint about the handling of your application for an extension of your spouse visa.

We have reviewed your case and note that you were granted entry to the UK as a spouse. However, on your latest application you have stated that you are unable to meet the financial requirements of the spouse visa route. Where the form states: ‘The Financial Requirement threshold which has been calculated £18,600.00. Will you be able to prove that the financial requirement is met?’ You have said: ‘No’.

As you indicated that you were unable to meet the financial requirement, you were therefore considered under the 10-year route which is standard to ensure a full consideration is given to applications of this type.

Your application under the 10-year route was refused because you could not provide evidence that there are insurmountable obstacles to continuing your family life together with your partner outside the UK. The guidance regarding insurmountable obstacles states that when assessing an application under paragraph EX.1.(b) and determining whether there are insurmountable obstacles, the decision maker should have regard to the individual circumstances of the applicant and their partner, based on all the information that has been provided. The onus is on the applicant to show that there are insurmountable obstacles, not on the decision maker to show that there are not. The assessment of whether there are insurmountable obstacles is a different and more stringent assessment than whether it would be reasonable to expect an applicant’s partner to join them overseas. A significant degree of hardship or inconvenience does not amount to an insurmountable obstacle.

The decision letter that you received includes details of the next steps that are available to you and the timescales that must be adhered to. It is also open to you to seek independent advice from a qualified UK immigration adviser about the UK’s Immigration Rules and requirements, and how they relate to your particular circumstances. In the UK, the Office of the Immigration Services Commissioner (OISC) regulates immigration advisers. The OISC website www.gov.uk/find-an-immigration-adviser provides a list of immigration advisers. You can also get advice from legally qualified professionals that are regulated by designated professional bodies.
I am unable to uphold your complaint.

I appreciate that this may not be the response that you had hoped for, however I hope that it has clarified the position and addressed your enquiry.

I believe I have addressed all the points you have raised. However, if you feel that there are specific aspects that have not been addressed you can request a review of our response within one month of the date on this letter by writing to us at:

Perhaps op's post is not getting be read in entirety. OP had applied on correct form but because of mistakenly selecting the incorrect answer of meeting the financial requirement despite being able to meet that. Therefore, he was transferred into 10 years of route where was refused on basis of not having insurmountable obstacles in returning back home with his family. In my opinion appealing & complaining is the best remedy because caseworker should have reviewed all the attached documents and other answers on the applications especially the ones relating to financial requirement.

The difficulty with the refusal, is that the case worker was required to first consider why the requirements under the 5 years route was not met, then consider whether or not the requirements of EX 1 is met. I see no reason in the refusal why a conclusion was reached that the OP does not qualify under the 5 years route.

Appeal date has been set for the beginning of January.

Do we need a solicitor or do we represent ourselves and say that it was a genuine mistake, and show all the evidence that the requirements for the 5 year spouse visa route were met?

What options does it leave please if the appeal is rejected? Would they seek to deport or are there any further legal options available please?

Many Thanks

I would at this stage, certainly get a solicitor. It seems you have made some mistakes, or presented the information incorrectly (it is confusing, so not a criticism) and I would now get someone who can give you the best shot.

Let us know how it goes.

Haze77 wrote: ↑

Thu Dec 19, 2019 9:46 pm

Appeal date has been set for the beginning of January.

Do we need a solicitor or do we represent ourselves and say that it was a genuine mistake, and show all the evidence that the requirements for the 5 year spouse visa route were met?

What options does it leave please if the appeal is rejected? Would they seek to deport or are there any further legal options available please?

Many Thanks

Have you addressed the issues on the basis of which the application was refused.

Obie wrote: ↑

Fri Dec 20, 2019 10:32 am

Haze77 wrote: ↑

Thu Dec 19, 2019 9:46 pm

Appeal date has been set for the beginning of January.

Do we need a solicitor or do we represent ourselves and say that it was a genuine mistake, and show all the evidence that the requirements for the 5 year spouse visa route were met?

What options does it leave please if the appeal is rejected? Would they seek to deport or are there any further legal options available please?

Many Thanks

Have you addressed the issues on the basis of which the application was refused.

Hi,

Yes the issues have been addressed. It has been made clear that there was an error in clicking "no" that we do not meet the financial requirement, and shown from the documents submitted that we far exceed the earnings required to meet the financial requirement. Combined income from both spouses' earnings is more than £29k.

Thanks

my other question was that what would happen if the appeal was refused? Would they deport or is there a further legal options if the appeal is refused?

Many Thanks