HELP!!! Hearing date near.

[maniani]

Dear friends,

My visa was refuse and you can see my timeline . My hearing date is about to come and I want to get some advice. During my visa application , I applied in financial category A but now I want judge to consider my appeal under category B. Is it possible to change category of financial requirement?

[Obie]

No you cannot, Section 85(5) does not permit you to do that.

[maniani]

No you cannot, Section 85(5) does not permit you to do that.

But I want to judge to consider my employment which was before my visa application.

[maniani]

But according to APL 7.5.2 :
Additional evidence:
If evidence relating to the initial application is submitted with the appeal this should be taken into account by the ECM. The most common instances of additional evidence will be documents that the appellant omitted to include with the application.
Examples of additional evidence
These are common examples and are not an exhaustive list.
• A bank statement issued after the date of decision that shows a satisfactory balance on or leading up to the date of decision.
• Satisfactory evidence of accommodation submitted by the sponsor relevant to the decision.
• Evidence of employment at the date of decision which was omitted from the original application.
• A birth certificate evidencing the relationship of parties which was not produced at the time of decision..

So in this way i can use my another employement of my pre decision which was omitted in application.

[Obie]

That may be possible, but not evidence that only became available after the decision.

[maniani]

That may be possible, but not evidence that only became available after the decision.

But the employment was before the decision and I dont mention it in my application . So in this way I can use Category B and can combine both pre-decision employment.....

[Amber]

Obie is right, specified evidence can't be considered after the decision under Appendix FM-SE unless it was already disclosed. I'm not sure if this rule is fair or reasonable, but that's a different argument.

[Obie]

Amber I believe this is another complex area which even judges , and legal or action er are finding increasingly complex.

Appendix FM-SE is designed for ECO and the SOS official.

The Tribunal is governed by section 85 as to matter which they should consider.

Sub section 4 deals with in country appeal, and subsection 5 deals with Entry clearance.

Subsection 5 is designed in almost similar terms to appendix FM-SE, but not in similar terms.

Subsection deals with material circumstance that exist at the time of application, not evidence produced at time of application.

The consequence of this is that an appellant can argue that at the time of an application they earned 18.6k but they did not provide the bank statement. Judge will be entitled to accept it, provided the earning did not take place after the decision.

Missing evidence can be added or provided, so long as it demonstrate a state of affair that existed prior to application.

[Amber]

On an appeal against a refusal of EC, new evidence may be relied upon to show the circumstances at the time the UK Border Agency made the decision. However, new evidence cannot be relied upon to show new circumstances. The OP wants to set new circumstances, not merely add bank statements.

A new application for entry clearance may be made instead.

[Obie]

She is saying, I had another job at the time of application but I forgot to add it. If I had added it , I would have fallen into category B.

That may be acceptable under 85 (5). Let see what the judge thinks. Evidence was available but was not submitted.

It is not that the evidence became available after decision, it existed, but was not before decision maker.

[Rayking]

Well,even if the appeal is won,the ECO obviously didn't make a mistake then.Appeal is to correct ECO's mistakes I think.

[maniani]

Dear Amber

Obie is right. I am adding a employment which occured before the application. You can understande by my timline

1 employer which i omitted . I worked from 1 januart 2013 to 30 june 2013

2 employer which i used in my application for which i worked from 1 July 2013 to till now....

I made my application on 22 january 2014. But now in appeal I want judge to consider my 1st employment also because it was before my application.

[maniani]

Any advice ????

[Rayking]

Think you have a valid argument but be prepared to answer questions when you get there,for instance why did you apply on cat A when you knew you didn't qualify on cat A?
Or why exactly were you refused on cat A?

[Obie]

The law governing the Judges state that "Situation appertaining as at the day of the decision to refuse" and "not evidence available to the decision maker as at the time of the decision to refuse". I think there is a difference between the 2 terms.

There will be a bit of fighting, but i believe argued properly, you should succeed.

The law is seeking to penalise people who are seeking to exploit the appeal process to make a new EC application, when on the date of the refusal, the circumstance they are seeking to present before the tribunal did not exist.

Cases like the OP are rare, the is every possibility that most applicant will submit all evidence at first instance, so it will not lead to undermining of the appeal process or suppress the purpose of 85(5).

[Rayking]

@ Obie,don't you think the OP could have been refused on technical ground rather than not actually meeting the financial requirement?
Or did he actually apply knowing he didn't qualify?
It might be better to post the actual refusal contents, may be that will shed more light.

[Obie]

@ Obie,don't you think the OP could have been refused on technical ground rather than not actually meeting the financial requirement?
Or did he actually apply knowing he didn't qualify?
It might be better to post the actual refusal contents, may be that will shed more light.

We can only go by what we are told. OP said the refusal was as a result of not meeting the financial requirement, and propose to submit document which was not initially submitted.

If he/ she has provided the forum with wrong or misleading information, then that is not my problem, she is not my client, i have no legal obligation to him/her. I can only comment on the information provided.

[maniani]

So there is chance of winning appeal....
I think a letter explaining everything will be sufficient for judge......what do you think Obie and Rayking?

[Obie]

Possibly , provided the information you have given me is accurate.

If there is an oral hearing, you will need more than a letter, there will be argument, the Home Office Presenting Officer may seek to resist your contention, and the judge may seek assistance from you or ask you question.

[maniani]

Possibly , provided the information you have given me is accurate.

If there is an oral hearing, you will need more than a letter, there will be argument, the Home Office Presenting Officer may seek to resist your contention, and the judge may seek assistance from you or ask you question.

Yes there is oral hearing and I am hiring a barrister for my appeal.

[maniani]

Any other senior member advice please!!!!!!!!

[Obie]

Well if you have hired a barrister then I am not sure our assistance is required.

[maniani]

Well if you have hired a barrister then I am not sure our assistance is required.

Thanks Obie , Rayking and Amber for giving me advice. Specially thanks to Obie..........

[Obie]

I hope barrister has put the ECM on notice of your intention prior to the appeal.

There will be immense scrutiny of these new documents, you better make sure everything straight.

Wish you all the best, and hopefully your barrister will be a fearless lion.

[maniani]

I hope barrister has put the ECM on notice of your intention prior to the appeal.

There will be immense scrutiny of these new documents, you better make sure everything straight.

Wish you all the best, and hopefully your barrister will be a fearless lion.

Thanks Obie...................................................