Urgent - Correspondence with UKBA after Refusal

Dear all,

I am assisting a friend who has been rejected for PSW due to inadequate maintenance funds because the closing balance on the accounts he submitted was below the required £800. I understand that the closing balance is the number relied on by the UKBA. However, he did have the required funds for a 90 consecutive day period less than one month before his application date (i.e. he had correct funds between 7 Sep 2010 to 17 Dec 2010 and his application date was 13 Jan 2011). Following the refusal on 11 March 2011, my friend wrote to the UKBA and resubmitted the same accounts (i.e. those with a closing balance less than £800). The UKBA responded on 15 March 2011 saying that despite not having a right to administrative review (because he is an in-country application under the points system) they are responding to let him know that they were correct to rely on the closing figure of the accounts submitted.

At this point, 23 March 2011, we write the UKBA again, submitting new accounts for only the relevant period on which we want to rely (i.e. 7 Sep 2010 to 17 Dec 2010). We did this by taking the complete accounts and redacting the dates before 7 Sep 2010 and after 17 Dec 2010. This redaction was required because HSBC can only provide bank statements within preset dates and the date your statement begins or ends cannot be modified. In addition to the redacted statements we submitted a letter from HSBC (on letterhead and including all the information set out in the guidance) stating that the account holder held amounts in excess of £800 for the duration of the 7 Sep to 17 Dec 2010 time period. This letter and supporting documents were sent on 23 March 2011 by special delivery and receipt was confirmed on 24 March 2011.

We have not yet heard back from UKBA. We have called their application tracking service on 7 April 2011 and they have said the letter has been received and we should wait for a response. During this time, my friend has been contacted by the Voluntary Departures Department who currently hold his passport asking him to make arrangements to leave the UK to Iran (his country of nationality).

Does anyone have any advice as to what my friend should do in this situation? Continue to wait to hear back from the UKBA on his letter? Will he be considered over-staying during the time he is waiting?

Also, other facts which may or may not have any bearing on the above situation:
My friend will not be able to return to Iran as he would be at serious risk of detention and persecution for his involvement in political activities following Iran's 2009 disputed election. His brother has already been arrested in Iran and sentenced to five years in prison. There are also other surrounding factors which would make his Human Rights case viable. If forced to leave the UK, he will need to go Turkey (where Iranians can stay for 90 days without the need to obtain a visa) and reapply for a visa to enter the UK from there. As an Iranian, he can also apply for a UK visa from Abu Dhabi, but he will need a visa to go there and his passport is currently with the UKBA. The Voluntary Departures Department has said they will refuse to give him his passport if he does not have a ticket to go back to his country of nationality or another country in which he has legal residence (which in my friend's case there is none besides Iran). Is this correct?

If this is correct (i.e. he must return to his country of nationality) how can he go about making human rights claim to allow him to temporarily stay in the UK and reapply for the correct visa type here? Should this situation be mentioned to the UKBA at this stage as they are considering the letter on the maintenance funds mentioned above, or should we wait to hear back on that before corresponding with UKBA on these issues?

Also of possible relevance:
My friend has received admission for a doctorate program to start in 2011.
His wife is currently in the UK on a PSW, and he can go on her visa as a dependant.

Many thanks for your time and kind consideration. Any insight into this situation would be greatly appreciated.

well, as far as the decision by UKBA is concerned, it is within the published guidance which says that ukba would look at the statement provided and work backwards to determine if maintenance requirements are fulfilled or not.

if he was refused, surely he would have been given right to appeal?

did he appeal? why didnt he?

legally, he dont have any reason to stay in UK as all this correspondance is, if you like, off the record.

i cant comment on human rights claim but if it was that easy to do, there will be hundreds of this type of claim being made by those who were refused so id say odds are not looking good for him

ofcourse, im not a lawyer and just my 'gut' feeling

Thank you for your comment. From my reading, the Policy Guidance (paragraph 100, page 20) provides that "Where an applicant is providing evidence of maintenance from a single account, we will always assess the funds available to an applicant from the closing balance given on the document provided." So, even though if the UKBA worked backwards they would see the required funds for a sufficient period, they have (as set out in the guidance) looked at the closing balance (which was below £800).

The applicant was not given right to appeal nor was given right of administrative review (as I believe in-country applicants under the points system do not qualify for such a review).

Do the UKBA have discretion in reviewing his additional correspondence to revise their decision? If not, what other avenues of recourse would he have (e.g. Judicial Review, etc)

Any comments would be much appreciated.

Many thanks!

In country PBS applicants don't have a right to admin review because they usually have a full statutory right of appeal unless they apply out of time or have extant leave at the date of decision. When did your friends leave expire?

If his leave has already expired which presumably it has if the ukba have retained his passport then yes his continued stay here is unlawful and the fact he is still waiting for a response from ukba to his most recent letter is not relevant. He will still be considered an overstayer.

The ukba do have discretion but they rarely exercise it in PBS cases and your friend is not going to get anywhere by submitting earlier statements as they have already made the decision on the basis of the most recent ones.

If he has now overstayed for more than 28 days then he likely to be refused entry clearance to join his wife as a psw dependent and subject to a ban of at least a year.

With regard to his fear on return to Iran he needs to urgently seek advice from an immigration solicitor or advisor as he is at risk of removal to Iran considering ukba have his passport.

skhoshroo wrote:Dear all,

I am assisting a friend who has been rejected for PSW due to inadequate maintenance funds because the closing balance on the accounts he submitted was below the required £800. I understand that the closing balance is the number relied on by the UKBA. However, he did have the required funds for a 90 consecutive day period less than one month before his application date (i.e. he had correct funds between 7 Sep 2010 to 17 Dec 2010 and his application date was 13 Jan 2011). Following the refusal on 11 March 2011, my friend wrote to the UKBA and resubmitted the same accounts (i.e. those with a closing balance less than £800). The UKBA responded on 15 March 2011 saying that despite not having a right to administrative review (because he is an in-country application under the points system) they are responding to let him know that they were correct to rely on the closing figure of the accounts submitted.

At this point, 23 March 2011, we write the UKBA again, submitting new accounts for only the relevant period on which we want to rely (i.e. 7 Sep 2010 to 17 Dec 2010). We did this by taking the complete accounts and redacting the dates before 7 Sep 2010 and after 17 Dec 2010. This redaction was required because HSBC can only provide bank statements within preset dates and the date your statement begins or ends cannot be modified. In addition to the redacted statements we submitted a letter from HSBC (on letterhead and including all the information set out in the guidance) stating that the account holder held amounts in excess of £800 for the duration of the 7 Sep to 17 Dec 2010 time period. This letter and supporting documents were sent on 23 March 2011 by special delivery and receipt was confirmed on 24 March 2011.

We have not yet heard back from UKBA. We have called their application tracking service on 7 April 2011 and they have said the letter has been received and we should wait for a response. During this time, my friend has been contacted by the Voluntary Departures Department who currently hold his passport asking him to make arrangements to leave the UK to Iran (his country of nationality).

Does anyone have any advice as to what my friend should do in this situation? Continue to wait to hear back from the UKBA on his letter? Will he be considered over-staying during the time he is waiting?

Also, other facts which may or may not have any bearing on the above situation:
My friend will not be able to return to Iran as he would be at serious risk of detention and persecution for his involvement in political activities following Iran's 2009 disputed election. His brother has already been arrested in Iran and sentenced to five years in prison. There are also other surrounding factors which would make his Human Rights case viable. If forced to leave the UK, he will need to go Turkey (where Iranians can stay for 90 days without the need to obtain a visa) and reapply for a visa to enter the UK from there. As an Iranian, he can also apply for a UK visa from Abu Dhabi, but he will need a visa to go there and his passport is currently with the UKBA. The Voluntary Departures Department has said they will refuse to give him his passport if he does not have a ticket to go back to his country of nationality or another country in which he has legal residence (which in my friend's case there is none besides Iran). Is this correct?

If this is correct (i.e. he must return to his country of nationality) how can he go about making human rights claim to allow him to temporarily stay in the UK and reapply for the correct visa type here? Should this situation be mentioned to the UKBA at this stage as they are considering the letter on the maintenance funds mentioned above, or should we wait to hear back on that before corresponding with UKBA on these issues?

Also of possible relevance:
My friend has received admission for a doctorate program to start in 2011.
His wife is currently in the UK on a PSW, and he can go on her visa as a dependant.

Many thanks for your time and kind consideration. Any insight into this situation would be greatly appreciated.

hi your case is interesting as i am in the same predicament. what happened. did the ukba give your friend his psw? who did you write to? was it the team that dealt with your application.