visa refusal dla incapacity

[yan213]

i have recently been on dla / incapacity after 5 lots of surgery and untold amounts of chemo and radio theraphy for bowel cancer, this has left me unable to leave my home, unless i starve my self for 3 days prior to going out, during my 60 year life i have never claimed any benifits what so ever up to getting cancer, my only hope is one day i will be able to work again, i feel in my self like i am a blight on society, any way, and to be told the same by the border agency in not so many words is heartbreaking, enough of my problems
Sorry to burst so many bubbles here,ut we have followed the rules on so many sites that say the formula ukba use for people on dla / incapacity is income minus housing cost, = amount of income support you are given to live
sadly this is just not true,
we followed this to the letter, our legal person also said every thing was correct, but we were refused,
refusal said the income i have is solely for my use so can not be counted , this was put in a way that also added lots of other none relevant things, such as gifts from my daughter paid into my bank, was discounted, we did not even include any third party money, they just look for any reason , effectively they are saying even if you are on dla etc, you still need to meet the rules to show you can support your wife, my income from dla and incapacity is £895-16 each month from that i was paying 350 for my mortgage, so this clearly left well in excess of £111-45 each week remaining, none the less we were refused , they said we did not have enough to live on, even if they included my storage fee income and my pension, they said it will still not be enough, and they chose to remove both of these even though we supplied banking details to show these payments going into my bank,
sadly it seems if you are disabled in any way, then the incapacity / dla route is just a sham to make out the government cares, clearly it is just another way to try to get the numbers down of people coming into the uk, from what is clearly an uncaring government , that thinks human rights are not for genuine decent people,
ashamed to be british,

[Amber]

Im sorry to hear about your diagnosis, I hope the treatment is helping. If a defective caseworker incorrectly applies the law, not all is lost, there is a court system to utilise.

Did you appeal? What is your partner's nationality? Is this an in Country or out application? What is your total income per week?

[yan213]

Hi
How are you ?, Thank you for your reply, we only got the news this morning, been searching the web ever since looking if i or my legal person made a mistake,
my weekly income is actually £233-19, but my benifits are £206-57 ,
my wife is Chinese, we have been together for almost three and a half years, her application was from China, we have not appealed yet, as i am trying to find out if we or my legal person did make a mistake many thanks
Bernie

[Amber]

There is a lot of misdirection when it comes to benefits. So long as one can adequately maintain and accommodate yourselves then you suffice. However, given the ethos surrounding benefits it would appear that if you don't set it out correctly (as I'll show you how to) you'll be refused by some defective caseworkers. Please state what benefits you are receiving and the weekly amounts. Also the mortgage amount and any savings, 3rd party support etc...

You'll need to appeal the decision but at the time time send in the 'information' I'll give you and ask for an immediate reconsideration.

[yan213]

Hi
Thank you for your mail , my dla and icapacity are £895-16 each month
I have a small pension of £37-37 each month before tax, and i have a small storage income of £18-00 each week, i also get part of my council tax paid, my savings at this time amount to about £500-00 , my daughter helps me if i need help with things, but we did not include any thing she has given us ,
many thanks
Bernie

[Amber]

How much is your DLA per 4 weeks and your IB per 4 weeks? What rates of DLA do you get?

[yan213]

Hi again,
Thank you for your reply,
my dla is £433-00 every 4 weeks my incapacity is £202-70 every 2 weeks , i am not sure what rate it is , but it may be middle , or higher, i do not have the papers as they were sent to China for our visa application,
i hope this is of some help,
you are so kind to take so much time to do this for me, thank you so much ,
Bernie

[Amber]

You should appeal the decision and ask for an immediate reconsideration with the following:

As per Annex FM section FM 1.7 at 3.6.1, as the ‘sponsor’ is in receipt of Disability Living Allowance (DLA) this application is exempt from the Financial Requirement instead, I am required to be adequately maintained and accommodated. I believe the recent decision dated [state date] was erroneous as I satisfy that requirement, and I will now set out how:

Following the Upper Tribunal case of Ahmed [benefits; proof of receipt; evidence] Bangladesh [2013] UKUT 84 [IAC] and the Immigration directorate instructions Chapter 8, Section FM 1.7A – Family – Maintenance (click) (include a copy) at page 3, paragraph 5.2 , staff considering an application for entry clearance, leave to remain, further leave to remain or indefinite leave to remain must demonstrate calculations detailing the actual financial position of the applicant/sponsor in all cases that fall for refusal using the following formula:

A – B ≥ C

A minus B is greater than or equal to C.

Where:

A is the projected income (after deduction of income tax and national insurance contributions);

B is what needs to be spent on accommodation; and

C is the amount of Income Support an equivalent British family of that size can receive.

For the purpose of income, benefit income can be used as income as per the Immigration directorate instructions Chapter 8, Section FM 1.7A – Family – Maintenance at page 2, paragraph 5.1(a). No benefit income is said to be excluded in the Immigration directorate instructions. I have calculated all figures as weekly as per the benefit entitlement letters which you have sight of. For C, the income support applicable amounts for my family unit, I have used the latest April 2013 income support rates as per the DWP figures (included).

Therefore,

A, income is:

Incapacity Benefit = £101.35
Disability Living Allowance = £108.25
Occupational Pension = £37.37
Rental Income = £18.00
Total income = £264.97 per week

B, accommodation costs:

Mortgage = £80.77

Total accommodation costs = £80.77 per week

C, income support applicable amount:

An amount for a couple = £112.55 per week
The total income support applicable amount for my family unit including my partner =£112.55 per week

A at £264.97 – B at £80.77 = £184.20

As £184.20 is greater than C at £112.55 I satisfy the requirements as per Ahmed [benefits; proof of receipt; evidence] Bangladesh [2013] UKUT 84 [IAC] and the Immigration directorate instructions Chapter 8, Section FM 1.7A – Family – Maintenance (include a copy) at page 3, paragraph 5.2. Therefore, my application should be granted immediately.

Furthermore, I have savings of £500 which would be an additional tariff income of:

£500 divided by visa duration of 130 weeks (2.5 years) = £3.85 per week

Furthermore, all the benefits I receive will be paid at the same rate when my partner joins me, even though some applications will be changed to joint applications. There will be no additional recourse to public funds when my partner joins me. This was key in the case of Yarce which held that:

“It seems to us that, since these issues involve mixed fact and law, an appellant in an immigration appeal must be able to demonstrate to the judicial fact-finder, either that the actual financial position on arrival will be such as to make it unnecessary to rely upon benefits in order to provide a standard of living equivalent to that available on means tested benefits, or that the relevant law bears on the circumstances of the family, in such a way that there will be no additional recourse to public funds in doing so.”

I have supplied enough evidence, and explained the case clearly to show that we satisfy the adequate maintenance and accommodation requirement. Thus the application should be granted immediately.


Send this straight away back to the caseworker (perhaps email to your partner for him/her to take).
On a separate note, I believe you may be entitled to some Income Support (especially if you live alone at the moment) which may also include some support with mortgage interest and you should make an application for Income Support.

[yan213]

Hi again,
again thank you for this, we included the details of this page from the ukba with our application just in case they were not aware of it, the discounted my storage income and pension because they said i did not provide proof of these , but both wer clearly shown on my bank statement and i noted the dates for these for easy reference, this is why my legal person has said it is difficult to appeal because they have in fact removed things that were in his opinion valid , even having said that with out my pension and with out my storage income , based on the affore mentioned case we still should qualify, but even though we instructed them of the affore mentioned case, they still said the income i have is solely for my use and can not in effect be counted
i dont think there is a way i can send you a copy of the refusal
but i could re type it all
when you say case worker do you mean my legal person, or the vfs place in china, who act as a go between between uk embassy in bejing and shenzhen where my love lives,
please forgive my stupidity about this,
i find it so hard to believe there are such kind and helpful people as your self in this world still, having a good and kind heart is truly so rare ,, thank you , and bless you
Bernie

[yan213]

Hi again,
My payment to my mortgage company did not show my council tax payments , but on our application we did show my council tax pay ment and my council tax rebate, i still worry that they so easily removed the pension and storage fee, from my income, i only pay council tax because i have this income, how do i show storage fees, other than cheques that went into my bank, on a none regular basis, but on my statement it only shows as a deposit, i gave them dates of these deposits,
my pension does show as a regular payment to my self every month
I actually thought i included my pension paper, and i would be surprised if the legal person did not pick up on this if i did not , it was the legal person that sent every thing to my love in china, because we were so near our end of month deadline , we have already had to apply for bank statements again because we passed the first deadline
sorry to keep adding to this
truly sincere and many thanks
Bernie

[Amber]

If you send as above to the vfs, make sure they have the pension details from the provider and rental details I.e. contract. You should send the appeal and reconsideration request ASAP set out as above. Council tax is not really relevant as you exceed the IS amount by quite a bit.

[yan213]

Hi again,
tHANK YOU AGAIN FOR ALL YOUR HELP , i have managed to convert the file to put on here, my pension is monthly not weekly and i need to take off the tax, but that i can do, I will need to contact the pension company to send me a statement, i hope a copy of this will do if i send it to my love, my storage is for caravans, i get regular payments of £18-00 averaged over the year, this is for 5 caravans, i do also have several others stored, but they are several years in arrears so i do not count them,
I feel it is looking like they will not pick them up, but at this time the value of them is more than the storage they owe, so there is a possibilty they may collect them, but in the past before i was sick we regularly had vehicles left which i had to dispose of,
i do not have any rental agreement as such , i normally get paid by cah or cheque, i have always kept my own records of payments, but i feel these may not be excepted, i can if i have not already include my council tax amendment which shows i have other income, but i am not sure if they will except this, i could also write agreements with the people that store with me, but this may take a little time and i realise time is so short, my legal people , bless them have finally got back to me with we are considering your options, but you will need to appeal and this will take 8 months, i have lost all confidence in them based on the refusal letter and there lack of support,

1"! E‘?
‘u. is Al

‘ UK Visas

l & Immigration
Financial Requirements

F ECO Reasons for Refusal

i
‘ ..l.E'.
l
l
I

You are seeking entry clearance to join your sponsor in the UK as his spouse. I note that
you were married in China on 26 September 2011.

- You have not indicated on form Appendix 2 (section 3.3) under which part of these Rules
your sponsor meets the financial requirements. However, you have 'Indicated in other
parts of the form that your sponsor is in receipt of Disability Living Allowance and
Incapacity Benefits amounting to £895.16 per month. I view of this I have assessed your

application under Part 3E category E of section 3.3.

o Your sponsor is exempt from meeting the requirements of paragraph E-ECP.3.1 as he is
in receipt of a DLA and IB allowance of £895.16 per month. In order to Meet the
requirements of these Rules you and your sponsor must be able to maintain and
accommodate yourselves and any dependents adequately in the UK without recourse to
(additional) public funds. I am aware that according to documents submitted by you from
the Department of Work and Pensions (DWP) amount of £895.16 each month has been
calculated by them as the amount necessary to meet your sponsors personal financial
needs and costs and I am aware that he has a mortgage of approximately £350 a month. I
note that there is no indication with the documentation you have submitted that these
Benefits have been calculated with the intention that they would include the costs of
maintaining any dependents and I note that you have no job offer in the UK and that you

hold level A2 English only.

a Furthermore, you have stated (although there is no evidence) that your sponsor
subsidises his income from Benefits by renting space for storage. I also note that
according to his bank statements he regularly receives funds from a third party (his
daughter) but that despite this additional income his bank account balance is rarely more
than a few hundred pounds and in any event third party support is not permissible under

these Rules.

- Furthermore, I am aware that your sponsor is in receipt of £37.37 pension each month but
that there is no evidence of this in your application nor am I satisfied that this amount
would be sufficient to meet the additional costs of you remaining in the UK.

- All of the above facts combined fail to satisfy me that you and your sponsor are able to
maintain and accommodate yourselves and any dependents adequately in the UK without
recourse to (additional) public funds or dependency on a third party. I therefore refuse
your application under paragraph EC-P.1.1(d) of Appendix FM of the Immigration Rules.

(E-ECP.3.3(b)).

English Language Requirement

ECO Reasons for. Refusals

N/A



l have therefore refused your application because I am not satisfied, on the balance of
probabilities, that you meet all of the requirements of the relevant Paragraph of the United

Kingdom Immigration Rules.
i hope this can clarify how our application was sent, it seems that mistakes were made by my legal people, from reading this
please take care
sincere and many thanks
Bernie

[Amber]

That is true that 3 rd party supoport can not be included so if the storage is not yours you'll have to omit it. However, all benefit income is included. An appeal could take 8 months or longer. However, a reconsideration should be much quicker. But put the appeal in.

Moreover, state in the appeal and reconsideration that according to the guide (click) at page 2, paragraph 4:

Only employment income of the applicant if they are in the UK with permission to work can count towards the requirement to be adequately maintained. Job offers or the applicant’s prospects of employment will not be taken into account.

Therefore, the caseworker should not be considering a potential job for your partner. Seems like your 'legal adviser' didn't set your case out correctly and you were stuck with a defective decision maker. Get the reconsideration in ASAP with pension proof, amend the figures above and scrap the 3 rd party support.

[yan213]

Hi again,
And once again thank you so much, the storage is my income, they are saying money my daughter put into my account is third party income, but this was never included in our application, they just added this them selves, no idea why,
i asked my love about the appeal form and where she has to take it , but they did not include an appeal form or guidance to fill it in with the refusal, nor did they give an address where to send or take it to, she phoned the embassy, and they said it can only be submitted in the uk ?
if this is the case, then do we need to submit our full application as before plus the letter you so kindly wrote for us, and pension and storage income details and copy of page from ukba about previous appeal,?, if that is the case she will need to send every thing to me, i checked on the web site and it said the appeal form on the site is for guidence only and you must use the form sent with your refusal, but no form ? , i could not even open the guidance form link on the web site,
if we only need to send those few papers, i assume they have copies of all the other papers we sent with our application,
sorry to be such a bother, you truly are such a good person to take so much of your time with our problem,
thank you so very much
Bernie

[Amber]

Indeed, you need to complete form IAFT-2 (click) and send it to:

First-tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Leicester
United Kingdom
LE1 6ZX

Fax: 044 0 116 249 4214

You need to also send a reconsideration request to the same place in china asking for them to reconsider the case with the aforementioned evidence ( including copy of pension proof).

[yan213]

Hi again,
Does the reconsideration request need to be handed in at a british embassy in china, or at the agents the ukba use, VFS ?,
i read the link you gave me, it said if you have not received the form IAFT-2 you should contact the place that issued your refusal, she has contacted the embassy and they just said it needs to be sent to the uk, and gave her the web site address,
but it seems every thing say you must use the form they sent you, and she did not get a form, and she did not get an address to send any thing to in china,
as far as i know all visa applications are sent to Bejing , but when you phone , they will only say send to uk, should we complete several forms of reconsideration and send them or take them to different places, in the hope one gets to where it should go ? I know this seems a ridiculous thing to ask, but they have failed to provide us with an address in china, and failed to provide us with appeal forms, and even when we phone all they do is pass us on to their web site, which says you need original forms,
it is a vicious circle,
sorry to make every thing so complicated, i'm sure many other people that read this will be equally helped so much by your advice and so caring attitude,
sincere thanks
Bernie

[Amber]

Ou need to complete the form in the link above and send it with the notice of decision letter.

VFS plays not part in a decision, the reconsideration request needs to go to the entry clearance manager China.

I think it's

The Entry Clearance Manager
British Embassy Beijing, Kerry Centre 21st Floor, 1 Guang Hua Lu, Beijing 100020, PRC

[yan213]

Hi again,
Thank you for the address, i still am a little confused,
do we need to send the appeal form as well as the request for a reconsideration to the address in Bejing,
My worry is if we sent the refusal letter to Bejing , we will not have it to send to the address in the uk for the appeal, if in fact they can not deal with the appeal in Bejing,
sorry to confuse every thing,
sincere and so very many thanks for all your time
My love smiled this morning when i told her how helpful you have been ,
i can never thank you enough
Bernie

[Amber]

Send the actual refusal decision with the appeal form to the UK. Send a copy of the refusal decision with a reconsideration request and the additional evidence to Beijing.

[yan213]

Hi again,
Thank you for this advice, I will do that, I found a different addres for visa's in bejing, so have added it in case it is needed in the future, I will write to both addresses in bejing with a note saying also sent to other address, just to be sure ,
address I found ,
The Visa Section of the British Embassy Beijing
21st Floor North Tower, Kerry Centre, No.1 Guanghua Road, Chaoyang District, Beijing
100020
China

Opening Hours:
Monday to Friday, 8:30am to midday / 1:30pm to 4pm (local time)

my love will get copies of the refusal, I will include names and addresses of the people that have storage and prices they pay, I hope this will do for that section of the income, I have asked my pension company to send a copy of the last statement , , that will be up to april , so I hope this will do, it should be obvious that your pension is paid for life, so I hope they do not say it is only showing up to april,
I know I am tedious and you are so good and patient with me ,
sincere thanks
Bernie

[Amber]

Ok good stay focused, just think about this as a temporary delay. If you can, highlight this issue to your MP.. Keep us updated.

[yan213]

Hi again,
Thank you, i will write to my M.P. as you suggest, and of course i will keep you updated, if i can figure out how to put a picture on, i will so you know who you have been helping so much, I pray it is a small delay, but sadly a small delay can some times be such a large part of some ones life, of course they never think you are a human being and your time may or may not be so long.
I was given 5 years , almost 6 years ago, but the one thing i have learned is it is most important to stay positive , but the thought is always there, so i truly know our time together is such a precious thing, and any delay , even a short one could so easily be most of the rest of our life, together, or sadly, other people in similar circumstances,
but i do feel so inspired by your kindness,
truly sincere and many thanks for everything
Bernie

[Amber]

You're more than welcome.

[yan213]

Hi again,
Nothing is ever simple , I feel the ukba are acting some what sinister, I have read so much and I find it impossible to believe they can make so many mistakes,
list as follows , but by no means comprehensive,
they failed to include income that was clearly shown in two places
they failed to include pension that was clearly shown, in two places
they included income that was not ever even submitted, why ?
they refused to follow their own very clear directive on the rules for this visa application,
they failed to answer the refusal in the correct manner as is clearly stated on their own directive, should the visa fail for this type of application
they failed to include appeal details with refusal letter,
they failed to include reconsideration details with refusal letter,
they now claim they have not received our reconsideration letter
they are also saying we can not send a reconsideration letter,
even though they made so many mistakes,
they are saying we can appeal and this will then be forwarded to them from the uk,
I truly find it impossible to believe that a government agency can get so much wrong with one application, so I am now wondering if this is standard practice that they have been given a directive to follow,
I have written to my mp , as of yet not even a reply ,
so it seems now all we can do is appeal,
but I truly expect them to say they never received this also,
despair despair despair
any way, I hope you are keeping well, I truly appreciate all your time and effort, just wanted to keep you updated,
sincere thanks

[/b]

[Amber]

It seems like the dingbats in charge will not look at a reconsideration unless it comes from the Tribunal Service. You should reply and explain that you have appealed but that you want them to reconsider as to avoid further unnecessary delay and stress and save both you and the government money that will otherwise be wasted.