Spouse Visa Rejection Letter Received - Appeals Advice Please!

Hello,

I am the UK citizen, currently resident in Aberdeen.  I last saw my wife and our baby in October.  They are in Houston awaiting her visa, applied for priority on October 30th.

Today we received a rejection letter as follows:

"Your human rights claim in an application for entry clearance made on 30/10/2019 is
refused.
What this means for you
You can appeal this decision. Instructions on how to appeal are in the ‘next steps’ section
of this letter.
The reasons for this decision are set out on the next page.
Yours sincerely,

JW ECO Sheffield

Appendix FM Partner Refusal Version 01 17
REASONS FOR REFUSAL ROA
On 30/10/2019 you made an application for entry clearance to the UK under Appendix
FM to the Immigration Rules on the basis of your family life with your partner Jordan
Breese.
Your application has been considered under those Rules, and with reference to Article 8
of the European Convention on Human Rights (ECHR). The relevant Immigration Rules
can be viewed on gov.uk here: www.gov.uk/guidance/immigration-rules.
This decision takes into account as a primary consideration the best interests of any
relevant child in line with section 55 of the Borders, Citizenship and Immigration Act
2009.
We have considered your application under paragraph EC-P.1.1. of Appendix FM.
However, you do not qualify for entry clearance under the 5-year partner route for the
following reasons:
Suitability
Your application does not fall for refusal on grounds of suitability under Section S-EC of
Appendix FM.
Eligibility
Under paragraph EC-P.1.1.(d) you do not meet all of the eligibility requirements of
Section E-ECP of Appendix FM for the following reasons:
Eligibility Relationship Requirement
You meet the eligibility relationship requirement of paragraphs E-ECP.2.1. to 2.10.
Eligibility Financial Requirement
You do not meet the eligibility financial requirement of paragraphs E-ECP.3.1. to 3.4.
because you have stated in your application form that you intend to rely on income from
employment to meet the financial requirements of the rules. You have stated that your
sponsor has been employed as a Real Estate Agent with Threshold Realty LLC in the
USA since 18/01/2018 earning £49,835 per year. In support of your application, you
have submitted a letter from Threshold Realty LLC confirming your sponsors employment
and also states that your sponsor has earned $94,628.12 since 21/05/2018.
In accordance with paragraph 2 of Appendix FM-SE Family Members Specified
Evidence:
2. In respect of salaried employment in the UK (except where paragraph 9 applies), all of
the following evidence must be provided:
(a) Payslips covering: - not submitted

Appendix FM Partner Refusal Version 01 17
(i) a period of 6 months prior to the date of application if the person has been
employed by their current employer for at least 6 months (and where paragraph
13(b) of this Appendix does not apply); or
(ii) any period of salaried employment in the period of 12 months prior to the date
of application if the person has been employed by their current employer for less
than 6 months (or at least 6 months but the person does not rely on paragraph
13(a) of this Appendix), or in the financial year(s) relied upon by a self-employed
person.
(b) A letter from the employer(s) who issued the payslips at paragraph 2(a)
confirming:
(i) the person’s employment and gross annual salary;
(ii) the length of their employment;
(iii) the period over which they have been or were paid the level of salary relied
upon in the application; and
(iv) the type of employment (permanent, fixed-term contract or agency).
(c) Personal bank statements corresponding to the same period(s) as the payslips at
paragraph 2(a), showing that the salary has been paid into an account in the name of
the person or in the name of the person and their partner jointly. - not submitted
(d) Where the person is a director of a limited company based in the UK, evidence
that the company is not of a type specified in paragraph 9(a). This can include the
latest Annual Return filed at Companies House.
(e) Where a person appointed as a non-executive director of a limited company
based in the UK, which is not a company of the type specified in paragraph 9(a), is
paid a fee instead of a salary, this income may be treated and evidenced as though it
were income received for employment in that capacity.

You have not submitted any payslips or bank statements showing regular income as
claimed from your sponsors employment in the US. I note that you have submitted a
signed contract of employment stating that your sponsor was due to begin employment
with Firecroft on 01/11/2019 however as there are multiple missing specified documents
submitted with your application, I am not satisfied that you have satisfactorily
demonstrated that your sponsor has been in receipt of a specified gross annual income
of at least £18,600 per year. Your application has therefore been refused under
paragraph EC-P.1.1.(d) of Appendix FM of the UK Immigration Rules in accordance with
paragraph 2 of Appendix FM-SE Family Members Specified Evidence. (E-ECP.3.1.)

Appendix FM Partner Refusal Version 01 17
I have also considered the provision of Evidential Flexibility as set out under paragraph D
of Appendix FM-SE however, I have not deemed it appropriate to exercise Evidential
Flexibility in this instance as there are multiple documents that have not been included
with your application.
Eligibility English Language Requirement
You meet the eligibility English language requirement of paragraphs E-ECP.4.1. to 4.2.
Exceptional Circumstances
We have considered, under paragraphs GEN.3.1. and GEN.3.2. of Appendix FM as
applicable, whether there are exceptional circumstances in your case which could or
would render refusal a breach of Article 8 of the ECHR because it could or would result in
unjustifiably harsh consequences for you or your family. In so doing we have taken into
account, under paragraph GEN.3.3. of Appendix FM, the best interests of any relevant
child as a primary consideration.
We have also considered your application under paragraph GEN.3.2 of Appendix FM.
We have concluded that there are no exceptional circumstances in your case which
would render refusal a breach of Article 8 of the ECHR because it would result in
unjustifiably harsh consequences for you, your partner, a relevant child or another family
member.
You have provided no information or evidence to establish that there are any exceptional
circumstances in your case.
Based on the information you have provided we have decided that there are no such
exceptional circumstances in your case.
Refusal under the Partner Rules
In light of the above, your application is refused under paragraph D-ECP.1.3.of Appendix
FM with reference to paragraph EC-P.1.1. (d) and you do not qualify for entry clearance
on the 5-year partner route, or on the 10-year partner route on the basis of exceptional
circumstances, under Appendix FM.
Compassionate Factors You do not fall for a grant of entry clearance outside the
Immigration Rules on the basis of compassionate factors
We have decided that, based on the information you have provided, there are no
compassionate factors in your case that warrant a grant of entry clearance outside the
Immigration Rules.

Appendix FM Partner Refusal Version 01 17
NEXT STEPS ROA
RIGHT OF APPEAL
You have 28 days from the date you receive this decision to appeal. Information on how
to appeal, the appeal process and the fees payable are all available online at:
https://www.gov.uk/immigration-asylum-tribunal/appeal-from-outside-the-uk
If you want to seek legal advice you must do so now.
IMMIGRATION HEALTH SURCHARGE
If you have paid the Immigration Health Surcharge it will be refunded. You may need to
pay again if any appeal is successful."

We are obviously devastated with this news.  I want to appeal online but I'd like to know if anyone has experience with this and how long does that process take?

We did in fact provide 12 months of bank statements with the application so I'm not sure why they are saying otherwise.  I did not provide payslips as my job in the USA was as a real estate agent - I received commission from time to time and this was received as a check but not a payslip as such. 

I did include a letter from my previouse employer showing amounts paid to coincide with those deposits in my bank statements.

I would appreciate any advice anyone can give.  I am desperate to see my family and I would love to have them here for Christmas.

Sometimes they do miss the bank statements; were they official on letterhead or electronic copies that were stamped and signed?

It sounds like you're considered self-employed rather than an employee, which would have required a great deal more documentation so the refusal may have been correct.

"Your human rights claim in an application for entry clearance made on 30/10/2019 is
refused.
What this means for you
You can appeal this decision. Instructions on how to appeal are in the ‘next steps’ section
of this letter.
The reasons for this decision are set out on the next page.
Yours sincerely,

JW ECO Sheffield

Appendix FM Partner Refusal Version 01 17
REASONS FOR REFUSAL ROA
On 30/10/2019 you made an application for entry clearance to the UK under Appendix
FM to the Immigration Rules on the basis of your family life with your partner Jordan
Breese.
Your application has been considered under those Rules, and with reference to Article 8
of the European Convention on Human Rights (ECHR). The relevant Immigration Rules
can be viewed on gov.uk here: www.gov.uk/guidance/immigration-rules.
This decision takes into account as a primary consideration the best interests of any
relevant child in line with section 55 of the Borders, Citizenship and Immigration Act
2009.
We have considered your application under paragraph EC-P.1.1. of Appendix FM.
However, you do not qualify for entry clearance under the 5-year partner route for the
following reasons
Suitability
Your application does not fall for refusal on grounds of suitability under Section S-EC of
Appendix FM.
Eligibility
Under paragraph EC-P.1.1.(d) you do not meet all of the eligibility requirements of
Section E-ECP of Appendix FM for the following reasons:
Eligibility Relationship Requirement
You meet the eligibility relationship requirement of paragraphs E-ECP.2.1. to 2.10.
Eligibility Financial Requirement
You do not meet the eligibility financial requirement of paragraphs E-ECP.3.1. to 3.4.
because you have stated in your application form that you intend to rely on income from
employment to meet the financial requirements of the rules. You have stated that your
sponsor has been employed as a Real Estate Agent with Threshold Realty LLC in the
USA since 18/01/2018 earning £49,835 per year. In support of your application, you
have submitted a letter from Threshold Realty LLC confirming your sponsors employment
and also states that your sponsor has earned $94,628.12 since 21/05/2018.
In accordance with paragraph 2 of Appendix FM-SE Family Members Specified
Evidence:
2. In respect of salaried employment in the UK (except where paragraph 9 applies), all of
the following evidence must be provided:
(a) Payslips covering: - not submitted

Appendix FM Partner Refusal Version 01 17
(i) a period of 6 months prior to the date of application if the person has been
employed by their current employer for at least 6 months (and where paragraph
13(b) of this Appendix does not apply); or
(ii) any period of salaried employment in the period of 12 months prior to the date
of application if the person has been employed by their current employer for less
than 6 months (or at least 6 months but the person does not rely on paragraph
13(a) of this Appendix), or in the financial year(s) relied upon by a self-employed
person.
(b) A letter from the employer(s) who issued the payslips at paragraph 2(a)
confirming:
(i) the person’s employment and gross annual salary;
(ii) the length of their employment;
(iii) the period over which they have been or were paid the level of salary relied
upon in the application; and
(iv) the type of employment (permanent, fixed-term contract or agency).
(c) Personal bank statements corresponding to the same period(s) as the payslips at
paragraph 2(a), showing that the salary has been paid into an account in the name of
the person or in the name of the person and their partner jointly. - not submitted
(d) Where the person is a director of a limited company based in the UK, evidence
that the company is not of a type specified in paragraph 9(a). This can include the
latest Annual Return filed at Companies House.
(e) Where a person appointed as a non-executive director of a limited company
based in the UK, which is not a company of the type specified in paragraph 9(a), is
paid a fee instead of a salary, this income may be treated and evidenced as though it
were income received for employment in that capacity.

You have not submitted any payslips or bank statements showing regular income as
 claimed from your sponsors employment in the US I note that you have submitted a
signed contract of employment stating that your sponsor was due to begin employment
with Firecroft on 01/11/2019 however as there are multiple missing specified documents
submitted with your application, I am not satisfied that you have satisfactorily
demonstrated that your sponsor has been in receipt of a specified gross annual income
of at least £18,600 per year. Your application has therefore been refused under
paragraph EC-P.1.1.(d) of Appendix FM of the UK Immigration Rules in accordance with
paragraph 2 of Appendix FM-SE Family Members Specified Evidence. (E-ECP.3.1.)

Appendix FM Partner Refusal Version 01 17
I have also considered the provision of Evidential Flexibility as set out under paragraph D
of Appendix FM-SE however, I have not deemed it appropriate to exercise Evidential
Flexibility in this instance as there are multiple documents that have not been included
with your application.
Eligibility English Language Requirement
You meet the eligibility English language requirement of paragraphs E-ECP.4.1. to 4.2.
Exceptional Circumstances
We have considered, under paragraphs GEN.3.1. and GEN.3.2. of Appendix FM as
applicable, whether there are exceptional circumstances in your case which could or
would render refusal a breach of Article 8 of the ECHR because it could or would result in
unjustifiably harsh consequences for you or your family. In so doing we have taken into
account, under paragraph GEN.3.3. of Appendix FM, the best interests of any relevant
child as a primary consideration.
We have also considered your application under paragraph GEN.3.2 of Appendix FM.
We have concluded that there are no exceptional circumstances in your case which
would render refusal a breach of Article 8 of the ECHR because it would result in
unjustifiably harsh consequences for you, your partner, a relevant child or another family
member.
You have provided no information or evidence to establish that there are any exceptional
circumstances in your case.
Based on the information you have provided we have decided that there are no such
exceptional circumstances in your case.
Refusal under the Partner Rules
In light of the above, your application is refused under paragraph D-ECP.1.3.of Appendix
FM with reference to paragraph EC-P.1.1. (d) and you do not qualify for entry clearance
on the 5-year partner route, or on the 10-year partner route on the basis of exceptional
circumstances, under Appendix FM.
Compassionate Factors You do not fall for a grant of entry clearance outside the
Immigration Rules on the basis of compassionate factors
We have decided that, based on the information you have provided, there are no
compassionate factors in your case that warrant a grant of entry clearance outside the
Immigration Rules.

Appendix FM Partner Refusal Version 01 17
NEXT STEPS ROA
RIGHT OF APPEAL
You have 28 days from the date you receive this decision to appeal. Information on how
to appeal, the appeal process and the fees payable are all available online at:
https://www.gov.uk/immigration-asylum-tribunal/appeal-from-outside-the-uk
If you want to seek legal advice you must do so now.
IMMIGRATION HEALTH SURCHARGE
If you have paid the Immigration Health Surcharge it will be refunded. You may need to
pay again if any appeal is successful."

I've highlighted the more relevant parts of the letter.

The problem with an appeal unfortunately is that you were correctly refused. You told us earlier that you were actually self employed but it appears that you completed the application as if you were employed. You didn't include the payslips because you didn't have any but they  are mandatory for the employment categories.

A note on the bank statements, I think the relevant part of that sentence is that they don't show regular income, rather than them not having seen them.  I've added brackets to make this more obvious.
You have not submitted any (payslips or) bank statements showing regular income as  claimed from your sponsors employment in the US.
 You were getting random payments when you sold a house rather than a regular pay check, I assume. They were looking for a regular monthly income.

I don't know if you would be able to pull the self employment documents together or not, it's a very tricky category and would require multiple other documentation.
I know you won't want to hear this but I'm wondering if the best bet might not just be to re-apply once you have 6 months of UK work under your belt.

Big hugs.

I agree whole heartedly with Larabee's suggestion of waiting until you have 6 FULL months of UK payslips.  When will that be?

Alternatively, do you have the savings to apply now?

I'm very sorry to hear this -- but I just wanted to say you've posted a lot of very personal information, so maybe the mods can come in and edit out the sensitive identifying information?

Wishing you the best JB. I hope you and your family are reunited soon.

Thanks everyone for the advice.

6 months payslips from the UK is not an option for me.  My wife and 10 month old baby (8 months when this crap started) are in Texas.  I have one month of payslips and I am on a dayrate here so they'll probably not read those correctly either.  If my wife and baby (who is a dual citizen) can come here with my wife on a 5 month holiday visa before we apply again, I'd go that route but I get the impression that would jeopardize her future application for a spouse visa.

I don't recall seeing an option when my wife applied to apply with me as a self employed person.  Further, what on earth is the point of the VFS $2,000 fee if they don't assist in the application process?  It seems they have even failed to scan the 24 months bank statements correctly.  Do I have any recourse with them?

Thanks everyone for the advice.

6 months payslips from the UK is not an option for me.  My wife and 10 month old baby (8 months when this crap started) are in Texas.  I have one month of payslips and I am on a dayrate here so they'll probably not read those correctly either.  If my wife and baby (who is a dual citizen) can come here with my wife on a 5 month holiday visa before we apply again, I'd go that route but I get the impression that would jeopardize her future application for a spouse visa.

I don't recall seeing an option when my wife applied to apply with me as a self employed person.  Further, what on earth is the point of the VFS $2,000 fee if they don't assist in the application process?  It seems they have even failed to scan the 24 months bank statements correctly.  Do I have any recourse with them?

There is really no point in paying the VFS $2000 and we always advise against it unless the applicant really needs their passport to travel to other countries (except the UK) while the application is being processed.

I believe that they did send your bank statements, for the reason I described in my last post so I don't see that you would have any recourse but you can of course complain if you want to.

Yes, categories F and G are the self employment categories but as the application is now online, you probably don't see the whole picture. I imagine as soon as you say yes to being employed, you are taken down that route. They are discussed at length in both the financial requirements document FM1.7 and FM-SE though.

You can have your wife visit you while you are working towards the requirements. Because you have already shown intent for her to move here but were refused, you'd be safest to have her apply for a visitors visa in advance.

Thanks everyone for the advice.

6 months payslips from the UK is not an option for me.  My wife and 10 month old baby (8 months when this crap started) are in Texas.  I have one month of payslips and I am on a dayrate here so they'll probably not read those correctly either.  If my wife and baby (who is a dual citizen) can come here with my wife on a 5 month holiday visa before we apply again, I'd go that route but I get the impression that would jeopardize her future application for a spouse visa.

I don't recall seeing an option when my wife applied to apply with me as a self employed person.  Further, what on earth is the point of the VFS $2,000 fee if they don't assist in the application process?  It seems they have even failed to scan the 24 months bank statements correctly.  Do I have any recourse with them?

Six months payslips might not be an option *now* but it will be after you’ve completed six months....

Options are:
Reapply using self employment for past income
Reapply using savings (401k’s can count)
Wait until you have 6 full months payslips
Don’t move to the UK

It’s really hard.  Only you and your family can decide what is right for you.

Try not to focus on the bank statements.  They WERE submitted.  We can read that in the letter.  They just didn’t paint the story to support salaried employment.  They supported a self employment story, which you didn’t submit the documents for.

Keep us posted on what you decide to do.  Big hugs!

Six months payslips might not be an option *now* but it will be after you’ve completed six months....

Options are:
Reapply using self employment for past income
Reapply using savings (401k’s can count)
Wait until you have 6 full months payslips
Don’t move to the UK

It’s really hard.  Only you and your family can decide what is right for you.

Try not to focus on the bank statements.  They WERE submitted.  We can read that in the letter.  They just didn’t paint the story to support salaried employment.  They supported a self employment story, which you didn’t submit the documents for.

Keep us posted on what you decide to do.  Big hugs!

Thanks again everyone for the advice and support.

I have been told by a lawyer here in Scotland this morning that if we were to reapply now I would no longer be able to use my self-employment income in the USA as support as I have already returned here and started my new job.  If that is the case and if my wife can't be here with me as a visitor whilst I rack up my 6 months I feel like packing up and leaving again.  I'm told an appeal will take 6 months or more so that's out.

I have contacted several immigration lawyers and I'm hoping for better news from one of the others.

Be very careful when talking with lawyers, many will tell you what you want to hear just to get your business...

An appeal is only appropriate if they have made an error which was not the case in this instance.

This is just a blip, hang in there. 

Thanks again everyone for the advice and support.

I have been told by a lawyer here in Scotland this morning that if we were to reapply now I would no longer be able to use my self-employment income in the USA as support as I have already returned here and started my new job.  If that is the case and if my wife can't be here with me as a visitor whilst I rack up my 6 months I feel like packing up and leaving again.  I'm told an appeal will take 6 months or more so that's out.

I have contacted several immigration lawyers and I'm hoping for better news from one of the others.

Cross that lawyer off the list as that’s incorrect.

Contact Medivisas in London. Go from there.

Cross that lawyer off the list as that’s incorrect.

Contact Medivisas in London. Go from there.

Do you know this for certain?

Now a second, highly rated lawyer has sent me the following regarding our right to reapply now that I have moved back to the UK and started my job:

I have looked into the relevant law again while I was making a list of documents. I was relying on the following provision of the financial guidance to support a fresh application:

 

“Where the applicant’s partner is returning with the applicant to the UK to salaried or non salaried employment, and is in self-employment outside the UK, they must meet the first requirement in section 5.2.1. through their self-employment income (see section 9 of this guidance for how this income is calculated). The second requirement, regarding a confirmed job offer in the UK, must be met on the basis set out in section 5.2.1.”

 

However, the problem now I notice is that the language used in the above provision is of present tense ‘Where the applicant’s partner is returning with the applicant to the UK to salaried or non-salaried employment’. In your case, you have already returned to the UK, and you are currently in employment; therefore, I doubt we can rely upon the above provision. There is another provision in the policy guidance which considers the circumstance where the sponsor is working in the UK for less than six months and earning more than the required amount, and the income generates through employment, non-employment of pension in the last 12 month period. It doesn’t mention the income from self-employment.

I apologise for your time wasted but it appears it’s a huge risk making the application under the circumstances. I will make a bit of more research to see if there could be another interpretation because the following provision of Appendix of the immigration law says:

“E-ECP.3.2. When determining whether the financial requirement in paragraph E-ECP. 3.1. is met only the following sources will be taken into account-

1.   (a) income of the partner from specified employment or self-employment, which, in respect of a partner returning to the UK with the applicant, can include specified employment or self-employment overseas and in the UK;”

KFDancer, larrabee and I have been on this forum, advising people on how to meet the requirements for several years now. We know the requirements pretty much off by heart by now and have lost count of the number of people who have found us after being given incorrect advice by lawyers who don’t know what they are talking about - in some cases, advice that would have resulted in a visa refusal had that person listened to the lawyer and not found this forum.

Most immigration lawyers based in the UK are only familiar with in-country applications, usually made by people with very complicated circumstances, such as applying outside the rules when they don’t qualify for a visa, people with serious criminal convictions, refugees and asylum seekers, illegal overstayers/workers etc., and so they are not particularly aware of how straightforward applications made outside the UK work.

Here on the forum, we’ve  helped thousands of people successfully apply for spousal visas in the last decade or so, whereas I’d say the average UK immigration lawyer only deals with a handful of straightforward US cases per year at most (some may have never dealt with a case from the US).

As a result, we only recommend 2 immigration law firms here on the forum because they specialise in spousal/family visa applications specifically from US applicants and we know they can be trusted:
- Medivisas based in London
- Laura Devine based in London and NYC



Sent from my iPhone using Tapatalk

I'm so sorry about your refusal. If only you or your wife had found this forum before applying.

Definitely listen to the advice on this forum though. They have been very helpful to me. I almost applied for my visa in 2017 and would have been refused because my husband only exceeded the financial requirement through overtime with his old job. He was salaried and his base salary was just a few hundred pounds less than required. They were also extremely helpful when I returned and was applying for my current visa.

Cross that lawyer off the list as that’s incorrect.

Contact Medivisas in London. Go from there.

Yesterday I contacted Medivisas and Laura Devine.  Devine haven't responded yet but Medivisas responded very quickly.  They also confirmed that I will not be able to reapply on the basis of my previous income in the US as I have already entered the UK and started this new job.

Now I feel completely lost and between this forum and now 6 lawyers I've contacted I can't get consensus on a plan going forward.

One thing Medivisas did say was that I can apply on the basis of my new employment as soon as I have earned £18,600 from this job, even if that comes before the 6 month mark.  I am skeptical of this advice though as the guidance seems to be very clear on the UK.gov webpage.  I forwarded this suggestion to a 2nd immigration lawyer and he agreed it is fine for me to apply as soon as I hit £18,600 gross.  I will reach that milestone in January, about 2.5 months after starting the job, so this makes for a very appealing option but I am desperately seeking some assurances here that some of you have seen others take this route and that it is indeed possible?  I am also bemused as to why none of the other 5 lawyers I contacted offered this as a solution.

Another issue the lawyers differ on is whether it would be ok for my wife to join me in the UK for the next few weeks as I continue to earn towards the £18,600 threshold.  One suggested I simply apply for a visitor visa for her (not necessary though as she's from the USA), whilst the other strongly discouraged it as it would jeopardize her 2nd visa application.

This all seems insane given that the route cause is that I failed to tick a single box in her online application.  But I'm trying to get her here as soon as possible and I can't get a word of sense out of anybody that isn't immediately contradicted by the very next lawyer I speak to.

Any thoughts anyone?