Appeal time period

[flyguy]

A close relation of mine a British citizen and passport holder got married in India to a indian citizen. His wife got rejected a visa only on the basis of not meeting the English Language requirements. A ILETS test was booked and as soon as possible the test was done and the appeal form submitted and sent to New Delhi within the 28 day time period. He stated on the appeal form that the test result could not be sent with the application but included links to check the result online after 13 days from the date of the test and that the certificate will be sent as soon as it arrives. She passed her ILETS with a overall score of 4.0. The result transcript was couriered to New Delhi when it arrived. It has come to the end of 7 weeks this week from the date of the appeal submission. It was hoped that the ECO in New Delhi will overturn the decision as it was a stright forward process and not a complicated case and issue the visa. Does anyone know how long the appeal processing takes in New Delhi and why it could be taking so long. The notification of receiving the appeal was receieved very quickly about 4 days after sending the appeal.

[Lucapooka]

You have to appeal within 28 days but can submit fresh evidence any time before the actual hearing. However, I think you will be lucky to win this appeal because new evidence has to pre-date the original refusal (rather than the 28 day appeal window). She had not passed the test at the time of decision and having passed it now is post-decision. It would be different if she had passed the test but merely forgot to enclose the certificate in the application evidence.

Maybe they will overlook this matter and allow it but, under the guidelines, they are not obliged to.

Post decision evidence
An ECM or Immigration Judge is entitled to look at circumstances/evidence after the date of decision only if they relate to circumstances before or at the time of decision.


http://www.ukvisas.gov.uk/en/ecg/appeal ... w#22054461

[flyguy]

I have'nt got the actual wording of the ECO decision to hand at the moment 9 but can re-post the exact wording later on today, however it was something along the lines although you have submitted a SCS (or something similar) certificate to prove you meet the English language requirements it is not from an approved provider and therefore i am not satified you meet the english language requirements.

The appeal form says something along the lines show how you now meet the refusal decision. Somewhere from memory it says the ECO may be able to overturn the decision before going to appeal tribunal ins ome cases.

So is it best now to submit a fresh application and can the same documents be used from back in March 2011 ? It seems he may have wasted 7 weeks now, and another 12 weeks max for a new application.

[Lucapooka]

I would say a fresh application is better in this situation. If you can afford (time) to wait then you might be lucky and get the ECM review to overturn the decision but, given the nature of the post-decision evidence, I would not hold my breath for this scenario.

[flyguy]

The wording from the Refusal notice is as follows "the certificate that you have submitted with your application as evidence that you meet the English Language requirements is not from an approved provider as per the guidance. You have failed to submit the specified evidence with your application...therfore refuse...not satisfied you meet the english language requirements para 281 (i) (a)(ii).

Having looked at the ECM Appeal process document (APL7) under the heading APL7.5 Post Decision evidence. There is a paragraph "..in practice this means when conducting the review the ECM should only look at circumstances leading up to and including the date of refusal. An ECM or immigration judge is entitled to look at circumstances/evidence after the date of decision only if they relate to the circumstances before or at the time of decision.

So in the above last paragraph translates that the english test completed after the refusal notice can still be taken into consideration as it relates to the original application and also the only reason for the refusal notice?

[Lucapooka]

No. It means that it (the test pass grade) won't be taken into consideration as it did not exist before the refusal decision. Something that did not exist before the application can't be used.

A sum of money held in a bank account before the application, but not shown in the application because the statement was missing, but the omitted statement is then sent in for the appeal, would fulfill that requirement.

[flyguy]

Thanks - now if he goes down the route of re-applying his current account bank balance in the last 6 months as been in the overdraft limit more then it being in the black, only about 2 months out of 6 has the balance in the bank account been in the black. His saving account with approx 6k and shares, approx 1.5k have remained the same and untouched from when he submitted his original spouse application earlier in the year and has been static like that for approx 2 years. Also works full time with income of approx 2k a month after tax and has all the payslips. Now would the current accout bank balance be dentrimental to his new application?