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Topic: Visiting UK while appealing visa denial  (Read 433 times)

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Visiting UK while appealing visa denial
« on: January 08, 2018, 04:03:11 PM »
I am a US citizen and my partner is a UK citizen living with me in the US. I was recently denied a UK unmarried partner visa for the second time. The first time was our fault; we simply failed to include sufficient evidence of our relationship and my partner/sponsor's income. The second application proved the relationship and provided all required job-related evidence, but was denied on the grounds that my partner's job in the US which allows him to work remotely from the UK is not qualified employment. We have two questions:

1) Is it worth appealing? I haven't seen much on here about appeals. We believe that the ECO wrongly determined that my partner's employment doesn't qualify him as a sponsor, based on sections of the Appendix FM regulations that address how taxes are to be paid in just this situation. Therefore it's possible that a second look at our application by an ECO (which is the first step of the appeal process) could result in the decision being reversed and the visa granted for a mere 80 pounds.

2) Can anyone advise on what I should do to go to the UK as a US citizen on a visa waiver while we appeal? I'm planning to bring: 1) a letter from my employer stating my employment history and granting a leave of absence; 2) a letter from my partners' parents stating that I can stay there for the visit; 3) a lease in the US showing that my partner and I are maintaining a residence here; 4) return plane ticket.

Our plan is to go to the UK for a few months so my partner can find a UK job, and appeal the denial. If the visa's granted on appeal, then all is well. If it isn't, then I will return to the US at the end of the visit and reapply, using my partner's UK employment to meet sponsorship requirements.

Thanks in advance for any and all advice!


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Re: Visiting UK while appealing visa denial
« Reply #1 on: January 08, 2018, 04:13:28 PM »
It's not as simple as his job continuing while in the UK.

While he is employed and living in the US, he is an employee of a company.  They directly take the tax and social security (equivalent to NI contributions) from his paycheck.  If you were inside the UK, this would be the standard "category A" qualification.

However, if he moves to the US and continues to work for the US company - he's no longer an employee and is now a contractor moving him to self-employed in the eyes of UK immigration and taxes.  He no longer will have taxes and NI contributions deducted from his paycheck.  He will have to file his own self-assessments at the end of each UK tax year and pay the tax due.  For purposes of a visa, only his financial year will be considered (April 6 2016-April 5 2017 currently, or April 6 2017 to April 5 2018 next year).j  So it's not apples to apples.  I fear an appeal will not be successful.

After the refusal of a visa (let alone two), you should NOT attempt to travel to the UK without a visa in advance.  It will be very very hard to prove to immigration on the day that you do not intend to live in the UK when you have had two visa applications stating you want to live in the UK.  I would think you wouldn't have your passport during an appeal, is that correct?


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Re: Visiting UK while appealing visa denial
« Reply #2 on: January 08, 2018, 04:16:15 PM »
Welcome to the forum :).

Sorry to hear about your refusals :(.

1) Is it worth appealing? I haven't seen much on here about appeals. We believe that the ECO wrongly determined that my partner's employment doesn't qualify him as a sponsor, based on sections of the Appendix FM regulations that address how taxes are to be paid in just this situation. Therefore it's possible that a second look at our application by an ECO (which is the first step of the appeal process) could result in the decision being reversed and the visa granted for a mere 80 pounds.

No, I would not advise appealing.

For a start, it takes about a year for the appeals process, and it's unlikely to succeed unless you DID meet all the requirements AND you sent all the correct documents, but Sheffield overlooked them and made a mistake in refusing the visa... which they didn't.

Unfortunately, your UK partner must have guaranteed UK employment, by way of an official job offer with a UK company or have already started a UK job. Unless his current US company has UK offices and has approved a transfer, with an official letter confirming that he will be their UK employee, you cannot use his US employment for the visa.

Quote
2) Can anyone advise on what I should do to go to the UK as a US citizen on a visa waiver while we appeal? I'm planning to bring: 1) a letter from my employer stating my employment history and granting a leave of absence; 2) a letter from my partners' parents stating that I can stay there for the visit; 3) a lease in the US showing that my partner and I are maintaining a residence here; 4) return plane ticket.

There's no such thing as a visa waiver for the UK - that's a US program, not a UK one.

With 2 refusals for settlement visas already, I would not attempt to enter the UK without a visa.

You could try applying for a visitor visa, but I'm not sure it would be granted, firstly, because I'm not sure you can enter the UK while you have an appeal processing and secondly, because to enter as a visitor, you have to prove you have no intention of living in the UK... but you've just applied twice for a visa to move permanently to the UK.

To qualify for a visitor visa you need:
- evidence you will definitely leave the UK within 6 months and will not attempt to live in the UK
- enough money to support yourself without working for the length of the visit
- very strong ties to the US to prove your life is there and you will not attempt to live in the UK, such as:
i) a US job to return to (you have been given time off by your employer)
ii) a home you are maintaining in the US
iii) family members in the US you need to return to
iv) other commitments in the US you must go back to, such as weddings, events, interviews, appointments, college enrollment etc.
« Last Edit: January 08, 2018, 04:17:36 PM by ksand24 »


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Re: Visiting UK while appealing visa denial
« Reply #3 on: January 08, 2018, 07:09:50 PM »
So it sounds like I can't go to the UK as a visitor with my partner while he finds a UK job. Rather, I should (must) stay in the US while he goes to the UK and gets a job, and then we reapply using income Category B showing he made over 18600 (in the US) for over a year before getting a UK job paying over 18600. And if so then as soon as he has that UK job we can reapply without having to wait for him to have had that job for 6 months.
In that case, is the disruption in cohabitation likely to pose a problem as unmarried partners? I have to find a new place to live here; should he be on the lease too even if he's staying in the UK? We're not opposed to getting married, especially if we're looking at a potentially lengthy separation during which that solidification of our relationship would be emotionally helpful, but would getting married in the US before he goes to get work provide any advantage or disadvantage?


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Re: Visiting UK while appealing visa denial
« Reply #4 on: January 08, 2018, 07:26:07 PM »
You can certainly try for the visitor visa in advance so that you don't have to be separated.

If the gap apart is going to be more than a month or so, I would recommend marriage.  They are really strict on the 24 consecutive months of cohabitation for the partner visa.   ::)


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Re: Visiting UK while appealing visa denial
« Reply #5 on: January 11, 2018, 06:11:48 PM »
Update:
We've decided to go ahead and get married in the US before my partner goes to the UK to look for work. We'd talked about doing so anyway, just moved up the timeline a bit to avoid any hassles in reapplying as unmarried partners with a gap in cohabitation.

We're still deciding whether to try to get me a visit visa to go over while he's there looking for work. Based on my trawl through the Rules, it looks like I need to provide, in addition to the basics like proof of identity:
-Proof that I'll leave (return ticket)
-Proof that I can support myself/be supported by someone who writes a letter to that effect during my visit (cost estimate for trip, my bank statement, letter from my soon-to-be husband, letter from his parents where we'll stay that I can stay there)
-Proof of US address, employment and income (and a letter from my employer granting me a leave of absence for the trip)

It looks like reasons for denial, if I provide these proofs, would center around whether the decision maker believes that I am genuinely visiting, rather than trying to get in around the settlement visa denials.

My questions are: am I missing anything proof-wise? Given that we will have just gotten married, and this trip would technically be a honeymoon, is there a reason not to describe it as such? How much does the length of the visit seem to matter to approvals vs denials (2 months vs 6, for example)?

 


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Re: Visiting UK while appealing visa denial
« Reply #6 on: January 11, 2018, 06:30:07 PM »
The longer you try to stay for, the more scrutiny you will be under.... especially if you have recently been refused a family visa.

So, a short visit of a couple of weeks, maybe a month, isn’t going to draw too much attention, because most people can take a couple of weeks off work for a vacation to a different country, but anything longer than maybe 1-2 months is risky.

The visitor visa rules specifically mention that immigration officers should take into account whether or not you have recently been refused a settlement visa for the UK, when they decide whether or not to grant a visitor visa....and you’ve recently been refused not one, but two settlement visas.

From the visitor visa guidance:

Frequent or successive visits: how to assess if an applicant is making the UK their main home or place of work

See: paragraph V 4.2(b) of appendix V: visitor rules.

You should check the applicant’s travel history, including how long they are spending in the UK and how frequently they are returning. You must assess if they are, in effect, making the UK their main home.

You should look at:
• the purpose of the visit and intended length of stay stated
• the number of visits made over the past 12 months, including the length of stay
on each occasion, the time elapsed since the last visit, and if this amounts to
the individual spending more time in the UK than in their home country
• the purpose of return trips to the visitor’s home country and if this is used only
to seek re-entry to the UK
• the links they have with their home country - consider especially any long term
commitments and where the applicant is registered for tax purposes
• evidence the UK is their main place of residence, for example:
o if they have registered with a general practitioner (GP)
o if they send their children to UK schools
the history of previous applications, for example if the visitor has previously
been refused under the family rules and subsequently wants to enter as a visitor you must assess if they are using the visitor route to avoid the rules in place for family migrants joining British or settled persons in the UK


There is no specified maximum period which an individual can spend in the UK in any period such as ‘6 months in 12 months’. However, if it is clear from an individual’s travel history that they are making the UK their home you should refuse their application.



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