My husbands spouse visa got refused

[lyndsay89]

hey guys

i would just like some advice on what happens next.
my husband was born in Honduras. But at the age of 9 he was taken over to the USA illegally by his parents and siblings.( he had no choice not to go). He spent 13 years in america before he left on his own will. i moved over there for 4 years. thats how we met. we got married on the 27th september 2011. we first met on 21st july 2008. on the 18th december 2011 he tried to come over to england for a 6 month visa. he got refused entry because they found our marriage certificate on him and thought he was going to overstay(which he wasnt). So he went back to Honduras the following monday. After finding out everything on what to do with applying for a visa. he finally applied in june 2012 for his visa. which he had to go down to Bogota Colombia as Honduras doesnt have a British Embassy there. me and my parents were wrongly adviced by our solictor on what to do and get before applying for his visa. She told us to look into getting his english test done and getting his certificate. so she told us to call up Cambridge univeristy and book an ESOL test with themselves. plus she said if they dont do tests in Honduras to make sure we have written letter from themselve confirming there isnt a test centre in Honduras. so we did that and put it in our supporting documents. and plus our solictor told us that as long as i am earning more than £90 a week then the UKBA shouldnt have a problem with it. at that point i was earning £110 a week. but since the application i now earn £165 a week and plus i have another job which brings in another £94.24 a week. so anyway the ukba in colombia refused my husband on 3 points.

1. English Test
2.my income
3. my parents morgage ( which i really dont know why)

with my parents morgage it is the ECOs opinion. my parents worked it out and their morgage takes 14% of their wages a month. so it gives them 86% left over. they havent got much of the morgage left to pay either.

while my husband was in colombia he did find a test centre there to undertake his English test. he passed it with a high B1. so now my husband got refused september 15th and we lodged our appeal 10th ocotber. the tribunal sent us a letter saying itll take about 19 weeks for everything to get sorted and get our appeal date. but now our application is going to be reviewed by an ECM. this is the letter my dad wrote to them. they always have enclosed my husbands english test, my new jobs payslip and the cambridge university written letter to say we did try to get him into an english test in honduras but got told wrong information.


letter to ECM

Dear Entry Control Manager:

I am writing on behalf of my husband with regard to your letter headed ‘Refusal of entry clearance’.

Under your heading ‘The Decision’, you listed several points that you feel were not satisfied. The following confirm these points:

1. ‘I am therefore not satisfied that you have met the English language requirement 281(i)(a).

In mitigation, during the completion of the application and supported by guidance from our solicitor, we investigated the availability of ESOL test centres within Honduras. At the time of the application submission, none was identified through the UKBA website. We subsequently spoke to the University of Cambridge (ESOL Examinations) and they confirmed in writing that no examination centres were present offering their examinations (please see enclosure 1).

Further investigation of the details held within the UKBA website, provided very little in the way of clarity around English Language Test centres in Honduras. As an example, ETS TOEFL in Honduras is/was referenced in the UKBA website, however, other areas of the UKBA website also stated that they did not recognize ETS TOEFL undertaken within Honduras (SET 17.4).

My husband also included his College diploma as additional evidence. The diploma was awarded following his successful completion of secondary education within the state of North Carolina. This would have included the ability to read/write/speak in US English. We accept that my husband does not meet the criteria in principle, as laid out in section 17.7, as he never achieved naturalization within the US. However, and again in mitigation, we ask you to revisit the original rejection, made by the ECO. To support this request, my husband undertook an English Language test through a UKBA recognized test centre, whilst in Colombia awaiting his application decision (please see enclosure 2). Again, we accept that the submission of the test result may not be acceptable as it was undertaken post application. However, we ask you to take this and the other evidence as detailed above, into consideration.

Further consideration should be given to the evidence that we supplied to help confirm that we are in a sustainable relationship. This evidence included conversations across various Social Media applications i.e.

Facebook/My Space/ Skype and we feel that there is substantial evidence that my husband has a perfect grasp of the English Language within the evidence provided.

2. ‘I am not satisfied that you and your sponsor will be able to maintain yourselves adequately without recourse to public funds 281(v)’.

We feel that a review of the original ‘statement of rejection’ issued by the ECO should be undertaken. The reasons supporting this view are:

* Under Annex F, Chapter 8, Section 1&2, of the Immigration Directorate Instructions (IDI), (dated August 2010), Paragraph 5 clearly states that the UKBA would need to see evidence of employment of one or both the parties. As part of the application process, I produced evidence that I was regularly employed with a weekly net income of £110 plus a weekly bonus of £15, totaling £125 per week, equating to £500 per calendar month. This weekly income has subsequently increased to £147 plus the weekly bonus of £15. Although not admissible as part of the application process, I have now secured additional employment that provides an additional net income of £94 per week, or £376 per calendar month. The total net income from both employments is £1024 per calendar month. I would therefore suggest that I have sufficient income that satisfies both 281(v) and the IDI.

* Although not admissible as part of the application process, due consideration should be given, as directed by Paragraph 5 of the aforementioned Instruction, specifically ‘what arrangements have been or could be made to obtain employment by the applicant, sponsor or friend or relatives in the United Kingdom’. My husband has now secured an employment offer that will secure an additional £595 per calendar month. Details are included within enclosure 3.

The ECO also commented on a ‘substantial debt’ held in my parent’s name. The debt in question is their mortgage on their home. The balance remaining on this mortgage is circa £63,000 and the monthly repayments on the mortgage equate to 14% of their disposable income which is below the national average (data obtained from the following website: http://www.homesandhome.com/happy-home/ ... in-the-uk/).

My parents therefore refute the statement issued within the Refusal of Entry Clearance as this should be deemed to be an opinion of the ECO, without having the facts to support the statement. The ECO’s next statement ‘This leads me to doubt that they are able to support your sponsor in providing for your maintenance’ is both subjective and opinionated. Following mortgage payments my parents are left with 86% of their disposable income, which equates to £32,340 per annum.



that is only part of it. i havent got the full letter as it is on my dads laptop.
what happens from now. it is very stressful as i havent seen my husband since november 2011. and would love just to start my new life with him. please any advice would go greatly. sorry its a long essay lol.

[Ted]

Sorry to hear about your husbands refusal, are you aware of the financial threshold needed to secure a settlement visa for a spouse, also the proof of ability to speak, read and write english, you can not put in an application for this kind of visa unless you fulfill these requirement.

[Lucapooka]

If you were receiving a salary that was not sufficient at the time of the decision to refuse the visa, it does not matter that you are receiving a higher salary now. The original salary was the basis of the refusal and that is what will be considered at the appeal. The problem you have is that a new application would not come under the new rules which are much more onerous than the previous rules in place when you applied.

I can't see the ECM letter being of any practical use as the ECM review is perhaps already something that has taken place (it happens within 8 weeks but this can be much sooner).

He needs to pass an approved test at an approved level or hold a degree that was taught in English. He is not limited to ESOL (there are many others that qualify) although it seems you only investigated the availability of that particular test. Honduras has no exemption from the English requirement. Just because you think he speaks good English is not something that actually matters.

[MPH80]

Take a step back at what you've written.

Essentially it reads:

"I know these are the rules - but they shouldn't apply to me and I expect you to bend them for me"

Just to point out a couple of things:

You argue that they don't accept ETS TOFEL tests. That's only partially correct. The exact wording is ETS TOFEL paper tests. All the test centres in Honduras offer the IBT test - which is different and (apparently) accepted.

http://www.ets.org/toefl/ibt/about?WT.a ... ut2_121127

http://www.ets.org/Media/Tests/TOEFL/tclists/IBT_h.html

Your comments about the employability of your husband are again, partially correct. The guidance says they should look for specific qualifications that would make him employable. You haven't provided any evidence of that - you've simply shown that he's managed to find a job AFTER the application - which as you've said is inadmissable in the evidence. Graduation from secondary education isn't a specific skill - but a specific degree/masters or employment history might indicate that. Either way - it's not of use now.

Even if they agree your parents mortgage wasn't correctly assessed it doesn't deal with the primary point - the english test, which regardless of your arguments appears to be that there WERE test centres in Honduras and you simply failed to use them.

You would be better off getting your parents to give you savings for the next 6 months to cover the gap in the earnings and re-submit the application with the English test and with the earnings and the savings.

For reference - you now need to show a minimum gross income of £18,600 - by my calculations - your net earnings translate into around £14500-15000 per annum gross. As such - you'd need savings of £26,250 (16000 + (shortfall *2.5)) to cover the gap to be in an account of one of your names for 6 months prior to the application.

Note that you'd then need to show the income again at the 2.5 year marker. But your husband's income would take you over the income threshold - so you shouldn't need the savings again.

M.

[batleykhan]

Please keep all your posts in one place.That way people will know your full history and circumstances when they respond or advice you

[vinny]

hey guys .. I just need some advice on what were going threw.
Back in january 2012 we got an immigration lawyer to help us put together my husbands settlement visa application. the lawyer told us to book an english test with Cambridge university( known as ESOL). so we called them up and they told us there was no english test in my husbands country that does the ESOL test. so we got that in written confirmation. WHAT our lawyer forgot to inform us is that we could take the english test with other test centres( stupidly enough we didnt know we could as weve never done this before.) so she said they would exempt us from the english test. So once we got the decision back from the ukba in colombia. my husbands application was refused on english test. ( i was very upset, that we got told the wrong information.) everything else in the applciation is fine, etc they know were genuine and we have good accommodation, and my income is fine. it was just the case of the english test. whilst my husband was in colombia he undertook his english test and passed it with a high b1.( just to let you all know my husbands home country is Honduras, There is no british embassy there so he had to go down colombia to apply). Now weve wrote a really good review letter stating what happened and we didnt intend not to take the english test on purpose. we just got told the wrong information.


we have lodged an appeal and the british embassy have till 5th april 2013 to get stuff in order. we send the review letter and my husbands english test results to the british embassy on the 5th december.

what are the chances of them overturning it. we dont want to waste time and tax payers money for this going to court.

its really hard on me and my husband as weve been apart now for 15 months

any information will be appreciated. ive known 2 people that their husbands got refused and they overturned it.( and one was illegally in the uk and they still overturned his visa decision). but i guess everyone is different.

The fact that you misunderstood the rules, and that there are indeed many different types of tests available (not just ESOL) is not, in my opinion, suitable grounds for appeal. Generally, taking a test after a decision to refuse a visa is not acceptable as, generally, only evidence that existed at the time of the decision can be considered.

However, you never know what can happen and, assuming this is the only issue with the refusal, there may be some discretionary scope for the ECM to allow the new test even though it is post-decision evidence. So, nothing is certain at this stage of the game. If you are missing each other it would have been better to re-apply after the test was taken. As is stands you may wait until April only to hear that the ECM has upheld the decision. Good luck.

http://www.ukba.homeoffice.gov.uk/polic ... /apl/apl7/

APL7.5 Post decision evidence
The relevant date in entry clearance cases is the date of refusal. This is established from case law and s. 85(5) of NIAA 2002. Any material change in circumstance or evidence not reasonably foreseeable after the date of refusal should not be taken into account. 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 circumstances before or at the time of decision.

There is a distinction to be made between new evidence and additional evidence.

New evidence:

New evidence which postdates the decision cannot be considered by the ECM. This evidence should be acknowledged in the Review and the ECM should indicate that this should be used to support a fresh application.

Agreed with Luca - and you really should keep your posts in one place.

M.

Hey people,

Long story short. My husband applied for a spouses visa in june 2012. They refused him on the 5th september. Before we started the application our previous lawyer mislead us wrong information. she told us to get him into an english test with Cambridge University. So we called them, they told us they didnt have any test centres available in Honduras. So our lawyer told us to get that in written and put it in our application.( we didnt know there was other options with the English test as we trusted an expert.) ( i will never do that again.). Well the UKBA refused us on the English test only. As my husband didnt have it. Even tho they had hundreds of our conversations all in English and my husbands high school dipolma from north carolina usa. During his time waiting for his application we attucaly got him an appointment in Colombia( thats where he had to submit his application.) for an English test. Unforuntly they didnt have any appointments till the 20th september. but we didnt care we still booked it. Once they refused him we sent away the English test and a covering letter to the Embassy in Bogota. Hoping theyll overturn it. But no they didnt. Now wer going to court 2 weeks on tuesday. We have some stuff to go against them. such as , if they had any concerns about the applicant they have to call them in for an interview.( they didnt do that for my husband) all it took was an interview to prove he spoke english. Any way. If they Judge overturns the Home office decision. Whats the chances of the home office appealing the judges decision. I cant go out there to live as where my husband lives San pedro Sula honduras is the number one capital in the world with the highest murders. Its not safe out there for us both. Please can someone give me some advice. All this is so heartbreaking

Thank you for your time with reading my post:)

[vinny]

How can you hope to keep track of information if you keep opening a new thread? Much of what needs to be said has already been imparted to you but it is spread across several threads and the plot is now very difficult to follow and relevant facts have been lost or left unmentioned in the confusion.

http://www.immigrationboards.com/search ... =lyndsay89

[vinny]

Lucapooka had already answered.

Unfortunately, the appeal probably won't accept English language test results that postdates the refusal decision.

Can he supply other evidence that predates the refusal decision?