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Wednesday, 17 July 2013 09:56

Visa Declined: How to Appeal

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In October 2012 my wife applied for a spouse visa to enter the UK on a settlement visa, this was after the introduction of the new minimum salary of £18,600.00 had been implemented by the current Home Secretary Theresa May. I was confident we would pass as I had earned around £20,000.00 plus over the 12 months up to the application, sadly my confidence was based on the idea that an entry clearance officer has room to interpret the rules and so my wife received the sad news over a month later that our application for entry clearance was denied.

And the nightmare that is the appeals process started. However, to give away a spoiler before you read on, we won the appeal and I hope this write up will give you an idea as to how we won the appeal and if you're in the process of appealing your decision, then I hope this helps.

At the start of the appeals process I had no idea of what to do, I was so confident we would have gotten the visa on the first time the mere thought of having to appeal never even entered my head. I also incorrectly thought we could just ask for a reconsideration as many had done previously and managed to avoid the whole appeals process altogether. However, one of the other changes brought in by the government in 2012 was the removal of the right for a reconsideration by entry clearance officers. This is due to a massive backlog of cases where applicants had asked for a reconsideration but their file had been simply stored in a box and left to rot for years (the then UK Border Agency has since been disbanded for these failings).

So if anyone advises you to ask for a reconsideration, ignore that advice, there is nothing anyone will reconsider unless it comes from the appeals tribunal in an appeals bundle.

So I had to prepare my bundle and get it sent off quickly, but first of all I needed a winning argument to convince an entry clearance manager or an immigration judge if it got that far. So I sat down and collected my thoughts, okay – so I got paid over £20,000.00 but my basic salary was for less than the minimum £18,600.00 requirement. Was there scope within the new rules for people on a fluctuating salary but earning more than £18,600.00 per year? And to my sadness I was advised by different people different answers. Immigration advisers tended to be sceptical towards my argument, advising me I was wasting my time but perhaps we should reapply. This wasn’t the answer or advice I was looking for, because the cost of a visa application was £851.00 – not an easy amount to throw away if you earn little over £1200 after tax a month.

And so I configured my argument.

I argued that I chose Category B as I could not rely on earning £18,600.00 based on a salary of over £15,550.00 each month, but I considered overtime as “other work”. At the time of our application, category B was for people working 2 jobs, or had recently changed jobs but could still earn over £18,600.00 per year. Just after our application and at the time of the appeal, catergory B had been amended to also include people like me, people on a fluctuating income due to overtime or bonuses.

And so I sent off the appeals bundle. This bundle consisted of a letter from me pointing out my argument, my recent P60 tax form showing my previous years total salary and my previous years payslips with a circle around the pre tax total salary of that month. I also had to include a signed letter from my wife authorising me to deal with her visa application and as her representative in any legal hearings that might come about here in the UK. I registered online and paid the £140 for the appeals tribunal to hear me out in an oral hearing (you can pay £80 for a letters only hearing but I think an oral hearing allows for a more nuanced debate and favours the applicant more).

And so I waited...

At this point I had also started a campaign to prepare for an oral hearing before a judge, I fired off a number of requests to the UK Border Agency and the Home Office to help back up my case if I had to take it before a judge. I demanded information as I could due to the freedom of information act, getting facts and figures on how the Home Office and by extension the UK Border Agency acted with regards to visa applications and the rules.

In these requests, I learned that in the Manila hub they only have 12 entry clearance officers each working visa applications. Originally, these visa applications would just have come from the Philippines but over the years some other countries and territories were included in their workload.  Those were Brunei, Hong Kong, Japan, South Korea and Taiwan. From 2011 onwards there were the additional states of Australia, Malaysia, New Zealand and Singapore thrown into the workload as well.

I also found out these 12 entry clearance officers had to process around 55 visa applicants per day, yes they have support staff but in the whole day I had an argument that proposed our visa application had been victim of overworked and overwhelmed staff.

To top this, I also asked another question to the Home Office which was “Did people with variable salaries but who earned over £18,600.00 per annum on a variable basis with the same employer meet the requirements needed to sponsor a spouse to settle in the UK after the changes on 9 July 2012?”. The answer to this was perhaps the biggest boost to my appeal as the response was to just refer me to the current guidelines (which had changed to include people with a variable salary – like me).

Now my argument was set. I argued that I clearly earned over £18,600.00 per year but this included overtime and bonuses that I could count on in future. That the UK Border Agency had mismanaged the Manila visa processing hub to the point that mistakes are pretty much a rule rather than an exception and that although the guidelines had changed, the rules didn’t and there was already scope for our application to pass within the rules at the time of our application.

I also checked with the tribunal service and they informed me that the Manila hub had signed for the package that contained our appeals bundle and so I then implemented the final stage of our appeal. A full on assault with emails sent almost daily to the Manila hub asking them to answer why this or that had been wrongly written in the rejection letter we had. Due to their slowness in getting back to me, I then started emailing the British Ambassador to the Philippines. Shortly after I started to include the Ambassador, all of my previous emails suddenly got answered and an entry clearance manager overturned the original decision and asked for my wife's passport to be sent onto the British Embassy in Manila for her visa.

We had won! It had been less than 2 months since the visa had been declined, but persistence and a sound argument made it possible to win our case.

You see another key piece of information I had been given during this time was that entry clearance managers are meant to reduce the amount of successful appeals. So if they think you would likely win over a judge and there is scope within their guidelines to grant the visa, it will probably get granted.

So finally, if you're reading this because your visa had been declined, or your acting on behalf of someone who was declined entry into the UK. If you think the decision was wrong, and can see scope within the rules to get the visa then prepare your argument, gather the evidence and appeal. However, don't appeal if you clearly won't win the appeal, it is a waste of money and time. Consider other options. But if you think you can win – go for it!

Read 2090 times Last modified on Wednesday, 17 July 2013 17:23

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