FLR M refused due to insufficient funds,no right of appeal

[mice]

i have been married to my husband for almost 2 years now,and live together.I applied on 28 th feb,from tier4 student to spouse of british husband.my husband work part time earns 800 per month and i work with care agency.End of october,the case worker requested more evidence of relationship and finances which i submitted on time.To my dismay,they have written to say my application is refused because i cant demonstrate enough finances in my bank statements;we have no children together to use as a family tie,and that i have no right of appeal but given 10 days to leave the country.Let me point out that we live tog with my 5 year old son which i had before i met my husband,but was not included in my application for FLR M. Is there any way I can sort this out without having to return to my home country.

[mice]

i have been married to my husband for almost 2 years now,and live together.I applied on 28 th feb,from tier4 student to spouse of british husband.my husband work part time earns 800 per month and i work with care agency.End of october,the case worker requested more evidence of relationship and finances which i submitted on time.To my dismay,they have written to say my application is refused because i cant demonstrate enough finances in my bank statements;we have no children together to use as a family tie,and that i have no right of appeal but given 10 days to leave the country.Let me point out that we live tog with my 5 year old son which i had before i met my husband,but was not included in my application for FLR M. Is there any way I can sort this out without having to return to my home country.

Is there anyone who can help whjat i should do next.I want to know what is the chance if i ask for judicial review or do a new application altogether and state all my circumstances as to why we cant meet the requirement ....please help i have 10 days left.

[MPH80]

I'm not sure I'm qualified to help here - but I think to aid everyone else - you need to lay out some more details.

Can you provide ... a clear timeline of your key events (e.g. arrival, birth of son, courses attended, visa extensions, marriage etc)?

Can you also provide some details of your finances? How much do both of you earn together? What expenditure do you have?

Can you also clarify the immigration status of your son?

[mice]

I'm not sure I'm qualified to help here - but I think to aid everyone else - you need to lay out some more details.

Can you provide ... a clear timeline of your key events (e.g. arrival, birth of son, courses attended, visa extensions, marriage etc)?

Can you also provide some details of your finances? How much do both of you earn together? What expenditure do you have?

Can you also clarify the immigration status of your son?

I arrived in uk in 2004 and have since been a student in business admin and renewed my visa 4 times visa up to feb 2012.met my husband 2009 and given certificate of approval and got married june 2011 at registrar.lived together since then together with my son but no adoption process took place.my son 5 and half years old,has no status as both i and his dad were subject to immigration control.My husband works part time and earn 175 pounds a week and i bring roughly 160 as my student visa restricts me 20 hours a week.we have no savings .i submit my flr(M) application 3 days before my visa expired which home office sent back within a week for correct payment details.i resubmitted it next day which was 10 days after my visa expiry date. i was invited for biometrics in april and asked for more documents p60,bank statements,work contract and pay slips in october and submitted.
I have now received this letter to say they refuse my visa because 1) i apply for my visa after mine had already expire 2) according to new law,that we have no sufficient income and savings 3)that we have no child between us 4)that there is no insurmountable evidence to show that me and my husband can not go and live comfortably my country and leave england which is my husband home country. We are so confused and donno what to do next.My husband has never lived in any other country apart from uk,has a lifetime condition and gets medical attention evry fortnight.I have no home in africa to take my husband to,and i dont know how they expect us to live apart ,its like we are being punished because we dont earn enough,which is not our fault,my husband look for good job every day but there are no jobs out there now.we are so help less.am also wondering do they have to judge me under new rule on income threshold even though i applied in feb,way before the law existed?sorry for the longest explanation.wil appreciate your advice

[MPH80]

So to summarise it in a bit of an easier to read format:

* 2004 - arrival as student
* 2007 - Son born
* 2009 - Met future husband
* 2011 - Married husband
* Feb 2012 - applied to FLR(M)
* Nov 2012 - Rejected

Your income is £335/week or roughly £1450 per month. This is below the qualifying threshold of £18,600 under the new rules - and you would require more than that due to your son.

I don't believe you qualify under a private life argument. Your son hasn't been here for 7 years (which is the break point) and you would have to prove that your husband couldn't receive the treatment in your home country.

I'm not sure of the best next steps - I suspect you need a good professional to assist.

M.

[mice]

So to summarise it in a bit of an easier to read format:

* 2004 - arrival as student
* 2007 - Son born
* 2009 - Met future husband
* 2011 - Married husband
* Feb 2012 - applied to FLR(M)
* Nov 2012 - Rejected

Your income is £335/week or roughly £1450 per month. This is below the qualifying threshold of £18,600 under the new rules - and you would require more than that due to your son.

I don't believe you qualify under a private life argument. Your son hasn't been here for 7 years (which is the break point) and you would have to prove that your husband couldn't receive the treatment in your home country.

I'm not sure of the best next steps - I suspect you need a good professional to assist.

M.

so in other words,it clearly shows we dont have any chance to win this case.am loss of words. thank you so much for your contribution.

[ID29]

Mice, I'm truly so sorry to hear your news.

I'm NOT an expert but have spent a couple of hours tonight considering what I would do it I were in your situation. I have to report that it doesn't look good.

Your failed application would have been decided under the old rules concerning income/savings. To be fair to the UKBA, it seems the caseworker's request for more information was at least an attempt to see if they could help you squeeze through. Clearly, they've decided that you still don't have sufficient joint income to support yourselves without the real risk of resorting to benefits in the future.

Because your application failed, and because you have lost the right to appeal, any future application would be decided under the new rules concerning income requirements (in your case, £22,400 income per year or £72,000 in savings). They would also expect to see proof of income/savings spanning a much longer period too.

To add to the misery, you no longer have a valid visa so would need to reapply from your own country.

I don't know the law well enough to say your case is impossible but like MPH80 says, you would need the advice of a GOOD professional and thus wouldn't be cheap. And even then, there's no guarantee they could help you.

Looking at your timeline/history I can see where you made your case more difficult than necessary. Firstly, anyone on a student visa for so long is going to attract more attention from the UKBA. That's not to say its a reason for refusal but they will perhaps look closely at the other details and why you are changing visa categories. With that in mind you needed to make sure your application was strong. It also didn't help that there was an error with the payment details... especially as you were so close to the end of your visa expiry. You simply cannot afford to make mistakes like this and as you've seen, they've now used it as one of the failure reasons.

Moving forward, be aware that you need to act quickly. Be careful that you don't break immigration rules by overstaying for example which may seriously damage any future applications.

If you and your husband truly love each other, you will find a way to be together. It may be a difficult road for a while but don't give up.

Again, my heart goes out to you and I hope a solution can be found.

[vinny]

i submit my flr(M) application 3 days before my visa expired which home office sent back within a week for correct payment details.i resubmitted it next day which was 10 days after my visa expiry date.

See also Invalid application due to payment problems?

[ID29]

... am also wondering do they have to judge me under new rule on income threshold even though i applied in feb,way before the law existed?sorry for the longest explanation.wil appreciate your advice

I know you probably have lots of other things to worry about but are you absolutely sure your case was decided under the new rules and not the old ones? Does that part of the refusal indicate the actual rule applied?

Just in case you are confused, they was an income/savings threshold of sorts under the old rules... it just wasn't as strict as the new ones.

[ID29]

Samestory, I'm responding to you here because the forum you originally posted on is concerned with FLR(M) delays, not the reasons for refusals or appeals.

I just read the post above by Mice and replies she got. ID29, I also read your response to her but I think they are being too hard on her. She applied during the old rules but because of payment problems and even the money got successfully taken out later.

I'm sorry you felt my response was harsh, but this lady needs quick guidance not something sugar-coated. What I said was also meant as a warning to others considering making applications not to make these kinds of mistakes because as we've seen the UKBA will punish you for them.

a) She applied in February 2012. The new rules came on in July. 5 months inbetween. If the UKBA treats applications a lot quicker and found there was a problem, Mice would have been able to reapply as per old rules and still get the opportunity to appeal incase the decision was unfavourable. Reapplying as per old rules means she would have still qualified for the old maintenance requirement. Can someone correct me that the maintenance requirements as per old rules was £5,400, I remember seeing that somewhere and Mice's husband earns about a £9,600 per year.

Samestory, I'm not sure Mice's case was considered under the 'new rules'? I know she says it was but is this just an assumption on her part, did the refusal actually state which rule was being applied?

Whether the case was dealt with quickly or not makes no difference. It was likely refused under the old rules and would certainly fail again under the new rules too.

Under the old rules, the maintenance requirements don't specify an exact amount but generally its accepted that you would need an income of £105/week after housing costs have been paid. That's probably where you get the £5400 figure from?

We don't know what (if any) information Mice gave regarding outgoings but clearly UKBA didn't think they had enough to live on after these costs were met.

b) If they argue, 'Yeah, but we told you that to process FLR(M) takes 6 months and the new rules took off in July, giving an extra month of August to process Mice's FLR(M), then they should be reminded that they did not even abide by the 6 month rule to give her a decision. She was instead contacted in October.

The Government indicated they were considering changing the rules last year, they also announced the change in advance of them being applied. And, currently, most applicants in this category are/will be decided under the old rules.

Mice married her husband June 2011 and has had plenty of time to have made an earlier application.

c) Applying 3 days before her visa expired is not important. Her visa was still valid, even if she made her application a day before it expired, it is not supposed to be their business. Sending in an application doesn't entail just filling the forms and posting it to them. You will have to scout for the exhorbitant application fees, added to the other commitments immigrants have. Mice is a single mother even though she is married to a resident. I can imagine the hell she's been through these 5 years bringing up a child on her own in the UK and having to bother about immigration.

Mice is NOT a single mother. She is married to a British citizen.

You are correct, she did apply before her existing visa expired. However, there was a problem with the payment details... the application forms, guidance notes and websites are quite clear about failed payments and she was fortunate her application wasn't rejected there and then. It was also bad luck that Mice wasn't able to correct those details before her visa expired but that's the risk when you leave everything to the last minute.

Yes the application process is arduous but that's not the UKBA's problem is it? The Government is tightening up the rules to make it even more difficult in future.

d)They did try to make a truce by asking for more documents from Mice but they should have considered her under the old rules, not the new rules. They should take blame too for responding late and this is why taking too much time to process our applications should be unacceptable.

I'm still struggling to believe the case was considered under the new rules. We really need to get this question settled.

e) Mice, I still don't know why you were studying for nearly 8 years. You probably got pregnant in 2006 and had the baby in 2007. If you were on a Masters program in 2004, you should have rounded up before the baby arrived in 2007. If you were on your first degree in 2004, then you may have been in your third year before the baby arrived and most first degrees are for 3 years. You had so much time to finish your program and apply for post study work visa instead of remaining on a student visa for too long but I know immediately the baby arrived, you would find it difficult to concentrate on any school work left. You will need to push yourself really hard to finish school with a young child, and I mean skipping meals, not sleeping, not caring about your appearance. I know this because I had a baby while doing a 2 year Masters program and still made a distinction on the course. You have some blame to carry in this mess.

At the end of the day, these are personal choices and not really relevant now.

f) Does anyone know if being on a terminal illness qualifies Mice's husband to apply for disability? Based on the new rules, I think there is no financial requirement for disabled persons' partners. Since Mice has a few days left in the UK, can her partner write the UKBA, explaining about his health status, pending when Mice can reapply. They stated there was no evidence why Mice and her husband couldn't move to another country. This is a good enough reason - his doctors are here and he is terminally ill. Any ideas who he should address the letter to?

Mice said he had a "lifetime condition" not a terminal illness. The two things are quite different.

You are correct that the new rule financial requirements are relaxed for certain disability benefit claimants. However, the gentleman is currently working, not disabled. Nor is he likely on one of the qualifying benefits right now.

Are you seriously suggesting he can quit work, convince a doctor he is disabled, apply for and receive a qualifying benefit, and then write to the UKBA before Mice has to leave the UK?

g) Even though Mice's baby doesn't have status, he is still a minor and cannot be removed. Doesn't he have any rights?

The short answer is no.

h)Mice, are you pregnant at the moment for your new partner?

And if she were, then what??

Don't guess. Go away and come back when you can explain fully how such an outcome would change anything in the next few days.

i) Is it legal to say an applicant can't appeal on a case? Shouldn't that be left to a judge to decide? We should find a way to stand up to these ridiculous rules.

Yes it is legal. Its a device that is used to prevent people appealing over and over again about decisions they didn't like. There are exceptions and in some cases a Judge could over-rule a decision but ONLY when the UKBA didn't apply the rules correctly. You cannot for example produce new information and claim you forgot to submit it or it wasn't available at the time and then request an appeal.

In Mice's case they allowed her case to be considered when the original payment failed and they also sought additional documents when questions arose about her income. In this case, I think the UKBA has been fair.

Just because she has lost her rights to appeal, it only applies to the current application. That application is now closed. However there is nothing preventing her making a new application.

j) No matter how bleak this case looks, I think Mice should remain and fight this decision. In my opinion, 'You have no right to appeal' is casework tactics to scare Mice. You can find out that the UKBA is not always right and get proved wrong sometimes by court judges.

No, YOU would have to prove the UKBA made a mistake and then CONVINCE a judge. You cannot just argue that you didn't like the outcome and hope a judge agrees.

As for remaining... to do so without permission is a serious breach of the immigration rules. This is the main reason they remove the rights to appeal so that you are forced to continue making your case or apply for a new visa from abroad and not remain in the UK while you do it.

I am only sad because Mice would have to find and pay a lawyer. Are there any immigration lawyers that offer service free? Mice, can you contact emyfraser and ask him/her the procedure because he/she posted they have been refused a right to appeal before?

I think we all feel sad for Mice but the free advice probably ends on these forums. A decent professional who is practised and qualified in these matters won't come cheap.

k) Asking Mice to leave in the next 10days may have reasons why this is not possible. For instance, to book a flight to an African country will cost nearly a £1,000. To Asia, more. She will have to pay for her partner and son in order to relocate, at least £3,000 in flight costs. Where is she expected to cough that kind of money from? I don't know if computers make these decisions.

Again, just because you don't like the decision (or cannot afford the flight home) isn't grounds to have it struck out. UKBA would probably tell you to approach your own embassy for help or place you in a detention centre while they sort out a flight for you.

Everything has consequences. Before the application failed the worse you could expect was a simple 'No'... but now a wrong choice or action could see you detained or prevented from ever entering the UK again.

Yes its unfair but anyone in this situation needs to be very careful what they do because it could seriously harm them in future. That is why I and others have urged Mice to seek professional advice.

l) Please, can most posters make an effort to comment so that Mice can get as much varied advice as possible and know how to find help. She must be feeling depressed, confused and helpless at this time and a carer to both husband and son.

I know you mean well Samestory but the last thing this lady needs is random advice from people who don't fully understand the procedures.

Lets hope Mice got the help she needs yesterday. Ideally, she'll find a way to gain permission to extend her stay while she considers what options are open to her.

[ID29]

Hi Everbody
I ve been reading all the above post in reference of Mice refusal Decision, samestory thanks for the good point ,

I believe that the refusal decision is total unfair to unfair hearing.
She applied in the month of Feb and because the payment did not go true and the application was returned as invalid, who knows if payment was process at the beginning by payment department?

We know it because Mice said they'd written back to her in days. She'd also be able to check with her bank or credit card to see when the payment was made.

Have we ask our self why did their take more than 6 months to make a decision on the application that has been paid for? This application is not for free, Mice paid for this service and it took them more than six months to make a decision on the application, it is conspicuous unfairness, The secretary of state failure to determine Mice application on time is UNLAWFUL .

Which law? I don't know of any that limits how long UKBA have to decide an application. If anything the Sales of Goods & Services Acts might come close but I'm sure the Government is exempt. Long waits unfair? Yes. Unlawful? No, sadly they aren't.

The delay in making a decision in her matter is in breach of her human
Right to fair hearing and the delay was unfair; their decision is unreasonable to her young child who is in school, this child is a minor and there have no form of
Authority to ask her to leave the country in next 10 working days, she have the right to live here with her family.

Fair hearings apply to people charged with crimes and trials in court.

But yes it is unfair on the child and yes the Government does have the authority to ask them to leave and no she doesn't now have the right to live here with her family... but her husband might have?

My Advice to you Mice, is to be strong, don’t give up, don’t let anybody say to you that you have no chance of wining this case, don’t even say that to ur self, I can see victory at the end of it, you are not in this alone. We still have Feb Applicant here in which I am one of them and still waiting for a decision.

I agree. But at the moment there is no case to win unless Mice can get permission to remain, even temporarily.

Get a very good solicitor to seek for permission for judicial Review at the High Court Human of Justice, The secretary of State does not like to go to court I can assure that.

I think I know what you mean, but access to the European Court of Human Rights takes years and years. Mice has a week.

There decision is Unreasonable and is in breach of Article 6 of Ur Human Rights Act 1998

Again, I'm not sure the European Human Rights Act applies now or can be used in this instance.

I'm not trying to be negative, but its not simply a case of digging in and hoping it will turn out okay in the end. Mice needs to stay focussed on avoiding deportation not fighting battles that have already been lost... you might argue the UKBA did her a favour by delaying a decision. But that decision has been made and cannot be overturned now. Lets hope she finds a way forward not allow herself to be dragged backwards.

[Greenie]

Mice you really need to seek legal advice from a competent immigration solicitor. You need a solicitor and not an Oisc advisor as you need advice on judicial review.

Will try to keep this as short as possible as it appears your thread has already been overrun by rambling posts that are not entirely helpful.

1.you say they wrote to you to ask for correct payment details-can you confirm that you provided the wrong payment details initially?

2. Although you applied before 9 July your application was considered out of time and thus considered according to the new income threshold. This is because out on time applications cannot succeed under the old rules and therefore they've essentially considered your application under the new 10 year family life route.

3. You don't have a right of appeal because you applied out of time and out of time decisions do not attract a right of appeal.

4. Ukba are unlikely to try to make you leave the UK as you have a British husband and young child. In order to make you leave they would have to issue you with an immigration decision to remove you- this would attract a right of appeal.

5. You need to seek legal advice on whether

- your original application should have been rejected due to payment problems
- there are grounds to try to force ukba to make a decision to remove you so you can appeal to the tribunal (where you have a better chance of success
-whether you should re apply with evidence of your husbands illness etc and ask that they grant you leave under the 10 year family route.

Despite ukbas attempt to limit the scope of article 8 in the rules the case law on article 8 remains far more favourable to applicants and it is likely that a judge would find in your favour.

Your case is complicated hence why i am reluctant to make much further comment here. You probably qualify for legal aid so i would urge you to seek legal advice.

[mice]

so in other words,it clearly shows we dont have any chance to win this case.am loss of words. thank you so much for your contribution.[/quote]


Just been going thru the sharp and some soothing comments , and can honestly say i wouldnt wish for anyone to walk in my path. Its an inexplicable phase... i really do wish i knew then what i know now....i mean wish.

[ID29]

so in other words,it clearly shows we dont have any chance to win this case

There is always a chance.

I was once sued by one of the world's richest men, his company and his lawyers with offices around the globe. A specialist defence lawyer would have cost me several hundred times more than a good immigration one would. There was no way I could afford one. Did I give up? No.

I knew I was right, so set about proving it.

I spent 3 months and 18 hours every day without a break learning a sub-section of the law. I learned it so well I was able to beat one of the world's best law firms with 1400 lawyers to call upon. And all this in a Swiss court too. So yeah, I eventually won.

Mice, people here like Greenie, MPH80, Vinny and emyfraser (in the other forum) have given good advice. If you're unsure how to use it, pass it to someone who does... like your MP and/or legal advisor.

Do NOT give up, I'm wishing you all the best.