Spouse Visa Rejection Preparation

[addocap]

Hi all,

I've had a read around the forum and am finding everything very interesting. I hope to be a useful contributor as learn more about UK immigration.

So, I've done a search to try and answer my question and I'm coming up short, sadly. Any pointers in the right direction would be greatly valued.

In a succinct summary, here's our situation:

- Me: American on tier 4 student visa that expires 19 January, 2018. I am about to be awarded an UK MBA.
- Wife: British citizen, born and raised, full time band 5 NHS job
- All requirements for spouse visa met except income requirement
- Wife doesn't hit 6 months with the NHS before 26 January; unfortunately, to submit the spouse visa application prior to my tier 4 expiry, she wouldn't have her final payslip until the week after.
- Prior to NHS she was a student; we meet the 12 months income ability due to my income, but as I get paid in cash that we don't deposit (yes, we realise it was stupid now), all I have are payslips to demonstrate the earnings.
- We are about to become pregnant, but don't have a kid yet, so I'm not sure how strong our argument for the 10 year route, even though as of a week from when I need to submit our application, our total annual earnings will be over £40K.
- Tier 2 is out of the question, as I'm an entrepreneur and running my wife's LTD on 20 hours a week under tier 4. I hope to open a new company shortly after

Ultimately, I'm a bit lost as to the right path or our options.

If we submitted an application we didn't meet the income requirements for before my expiry, if it is denied, do they allow for appeals? I.e., if we had the correct earnings from her a week later, we could show this in an appeal?

Any guidance would be appreciated. Thanks!

[addocap]

Good afternoon,

In advance, I appreciate any comments that might be given on my situation.

I am an American married to a Brit for 2 years who has been living in the UK for the last 1.5 years on a tier 4 visa. Shortly before my tier 4 visa expiration in January, I applied for a spouse visa here within the UK. The application was submitted prior to my visa expiry.

Our issue is that we were 2 days short of my spouse meeting the income requirement under the single employer, 6 month option. Instead, we had to combine incomes over the 12 month period continuously, but our evidence is doubtful due to some of my income being cash and not being evidenced via bank statements. Although we submitted the additional evidence of meeting the income requirement for the 6 month option in our documents within the 15 day requested period post-application, it is my understanding looking at stories of others in our situation that we are likely looking at a rejection letter coming; its been 4.5 weeks out of the 8 week service standard, so I know we should be seeing a decision in the next couple of weeks here.

This said, we are looking to prepare for the worst. Assuming we receive a rejection letter, it is my understanding that I will have 14 days to leave the country or appeal the decision. I am not sure that an appeal would be of any use to us. As I manage my wife's company for her in the UK (under 20hr tier 4 privileges currently), my leaving the UK would bankrupt her and likely cause her to need to forfeit her NHS job.

Thus, I am desperately looking for any way that I might be able to make an immediate re-application here in the UK with an application that was rejected but applied for prior to current visa expiry. As my visa will have been expired for several weeks by the time we receive a decision, will I have any option to re-apply here in the UK during this 14 day period? Ideally, I'd love to go and pay the big monies for a same day decision at a premium service centre, but I'm not sure if this is allowed on technicalities. We 100% would meet all requirements for visa acceptance this round.

Any thoughts would be greatly appreciated.

(Side note: We don't plan to remain in the UK longer than 5-7 years so if there are any overstayer options, while unfortunate and something I really don't want to do, I'm not worried about possible hindrance to a ILR app and if there is any way possible, I need to not return stateside at the moment).

[addocap]

My apologies for the double post; I have no idea how that happened and there is no edit or remove button showing for me. Moderators, if you can delete the second post and this, that would be awesome.

[CR001]

Your two topics have been merged.

[addocap]

Your two topics have been merged.

Ah, I understand. Sorry for the bother.

[CR001]

No worries.

Suggest sit tight and wait for the outcome, try not to stress too much.

You will have 14 days to either appeal (if given appeal rights), apply for administrative review, or submit a new application.

make an immediate re-application here in the UK with an application that was rejected but applied for prior to current visa expiry.

You stated in your previous post that your visa expired in January, so if your current application is refused, you don't have a 'current visa'.

[addocap]

No worries.

Suggest sit tight and wait for the outcome, try not to stress too much.

You will have 14 days to either appeal (if given appeal rights), apply for administrative review, or submit a new application.

make an immediate re-application here in the UK with an application that was rejected but applied for prior to current visa expiry.

You stated in your previous post that your visa expired in January, so if your current application is refused, you don't have a 'current visa'.

Indeed, haha. Patience is probably the biggest required virtue of every member on this board at some point, eh?

You are certainly right with the "current visa"; I should have specified this "at the time of application." I guess all I am trying to do is understand that upon a rejection, if a new application is allowed within that period.

Disregarding appeal and AR, I seem to be finding many varying opinions on whether a new application is permissible in this 14 day period; any reference to guidance I might be missing would be appreciated.

[CR001]

https://www.gov.uk/government/uploads/s ... e_v8_0.pdf

[addocap]

Thanks for the link; yes, I am aware of this document. While I cannot find any direct statement verifying the allowance of a fresh application, statements like the below do insinuate that a fresh application is allowed.

If an applicant makes a new application for entry clearance, leave to enter or leave to
remain and then makes an administrative review application in respect of a previous
decision, the administrative review application will be rejected.

However, I am finding examples that seem to directly negate each other that are greatly confusing to me. (https://www.gov.uk/government/uploads/s ... n-v1.0.pdf)

Example scenario 4
An applicant submits application A in time. They transition to 3C leave and
application A is refused, and the decision is served with a right of appeal. The
applicant then submits application B, whilst still on 3C leave (for example, before the
time limit to appeal has ended)
In this scenario, if application B is a human rights claim or an asylum claim,
application B must be considered. If application B is any other type of application,
then it must be returned as void as there is no longer an application to vary. For
further information on 3C leave see: Leave extended by section 3C (and leave
extended by section 3D in transitional cases).

Example scenario 5
An applicant submits application A (either in or out of time). Application A is refused
and the decision is served, with a right to Administrative Review. The applicant then
submits application B.
In this scenario, the submission of application B brings the administrative review
period and therefore any period of 3C leave, to an end. Application B cannot be a
variation of application A, because the decision on application A has already been
decided. Application B should be considered as a new application.

Furthermore, there is a direct statement in the section 3c/3d guidance, which concerns me. Understanding that I am currently covered by section 3c leave (applied for FLR prior to visa expiry while awaiting decision), the following statement suggests that any right of appeal that is given does not allow for a new application:

While the person’s leave is extended by section 3C they cannot make a new
application for variation of leave. This is because Section 3C (4) states:

‘A person may not make an application for variation of his leave to enter or remain in
the United Kingdom while that leave is extended by this section.”

However section 3C (5) does allow the person to amend their existing application at
any time before it is decided by the Secretary of State. The application to amend the
existing application has to be a valid application. Where there is a difference in the
fee between the initial variation application and the amended application any
additional fee must be paid.

Therefore, I am confused, as the following statement from AR and section 3c/3d guidance suggests that within an allowable AR timeframe, you can put in a fresh application, which simply brings the 3c leave to an end.

If an applicant has made an application for administrative review which is pending,
the administrative review application ceases to be pending if the applicant makes an
application for entry clearance, leave to enter or leave to remain. The application for
administrative review ceases to be pending because the effect of making the fresh
application is to withdraw the administrative review...

...When an administrative review is pending against refusal of an application, if a
person submits a fresh application the administrative review will no longer be
pending...Where an administrative review is no longer pending, section 3C leave comes to an
end.

Thus, I am entirely confused by the above. The only thing I can derive from this is that if you are given the right to appeal, you cannot put in a fresh application, while if you are given the right to AR, you can put in a fresh application which ends section 3c and AR privileges?

Any thoughts from members on the board about the above would be greatly appreciated.

[Obie]

OP will only have an appeal right if his claim is not certified as clearly unfounded.

[addocap]

OP will only have an appeal right if his claim is not certified as clearly unfounded.

Thanks for that. In this instance if no right of appeal is afforded, one is basically either able to ask for administrative review or leave the country? According to the above quotes from guidance, I seem to think one could submit a new application in this instance if AR was the only option besides departure; the above quotes suggest section 3c leave ends immediately upon terminating AR rights through the submission of a fresh application, thus negating possible conflict with a new application not being able to be submitted during afforded section 3c leave.

Do we agree or disagree with my understanding?

[Obie]

I disagree with your understanding. An admin review is only available where statute does not provide for a right of appeal.

If the nature of your case is a human right claim and it is rejected, then there is simply no admin review at all.

[addocap]

I disagree with your understanding. An admin review is only available where statute does not provide for a right of appeal.

If the nature of your case is a human right claim and it is rejected, then there is simply no admin review at all.

Ok, I understand. I'm not interested in an appeal or AR whatsoever, but rather the most efficient way to make a new application - preferably with being able to use a premium service centre if the result of my current application ends as I presume it quickly shall.

So, if there is no right of appeal, then an admin review is normally permitted?

[addocap]

I disagree with your understanding. An admin review is only available where statute does not provide for a right of appeal.

If the nature of your case is a human right claim and it is rejected, then there is simply no admin review at all.

Another note for my clarification - you twice mention human rights claim. Is a FLR (m) innately considered a human rights claim? As we met the requirements for FLR (m) but were only lacking in the evidence department, unless the above is true, I would then expect that no right of appeal will be given but perhaps the right to AR instead. We did not make any explicit human rights claims in our application, unless such application is considered so itself.

[shakil.saif79]

What is the outcome of your initial application.

you may be able to submit your last payslip while your application is under process. There is no harm in trying. good luck

[addocap]

What is the outcome of your initial application.

you may be able to submit your last payslip while your application is under process. There is no harm in trying. good luck

Hi, I submitted a FLR (m) application prior to a tier 4 expiry. We met all the requirements, but had trouble evidencing for the 12 month income requirement route; as of 5 days after, we could have met the 6 month route without any issue. Immediately, within a week of application we sent off the additional payslip and bank statements with a cover letter stating that we now also met the 6 month route with full evidence. Sadly, I have found forum conversations with others who did the exact same thing - always a refusal. Thus, I am now trying to get ahead of the game for what I 99% expect to be a refusal hitting my post box any day. We are simply trying to determine the quickest and most efficient to re-apply without having to leave the country, should our intuition be unfortunately correct.

That said....it is the home office, so its anyone's guess, haha.

[shakil.saif79]

hope for the best. it varies on person to person and case to case... so hope for good and accept my best wishes. did you submit p60 of last year etc. a letter from employer stating annual salary and type of job (contract/permanent) may help.

[addocap]

hope for the best. it varies on person to person and case to case... so hope for good and accept my best wishes. did you submit p60 of last year etc. a letter from employer stating annual salary and type of job (contract/permanent) may help.

Yeah, thanks. We shall see!

[shakil.saif79]

any news yet? i wish you succeed in your application.

[addocap]

any news yet? i wish you succeed in your application.

Thanks for checking! No, I'm afraid not. (Could be a good or bad thing in my shoes, haha). I requested that my documents (passports) be returned a few days ago and I've been told that they reject returning your documents if they have rejected your application already, so I might get an indication there.

I'll update the board when we see our letter.

[addocap]

Hi folks. Just dropping in to notify that we received the letter today and I was...approved! (5 year route). It was crazily unexpected due to the above notes, but we are very happy. As I know others whose situation is identical to ours and hage all faced refusal, it makes you wonder how subjective some of these things can be. The only thing I can think to mention is that I wrote a long cover letter quoting various areas of immigration law that supported our varied evidence approach.

Best of luck to all those who are currently or have been in our shoes.