refused visa even though i followed all required information, on dla / incapacity

Hi,
Well here we are again, i felt i was given some good advice last time i was here , but sadly every thing went wrong
i have been battling cancer for getting on 6 years now, 5 lots of stomache surgery, plust the usual after care with every toxic thing they can throw at you,
i finally got to marry my love and we applied for her visa going the dla route, but have been refused,
our legal man says the reasons they have given are insane, they have based every thing on old rules and not even considered the new rules even though they were pointed out to them in our application, just in case they were not aware,
we were told that under the new rules they had to take our income, dla and incapacity, and any other income , in our case i have a pension and a small monthly fee i get for storage ,
from this take our housing cost and what should be left is £111-45 each week,
well my dla and incapacity together equal £895-16 my housing cost was £350-00 each month so we easily came in the required threshold,
but they refused saying the benifits are for my use so can not be counted, not in these exact words but they mean the same , they also took off my pension and my storage fees even though they were clearly shown on my bank statements ,
but that said, thay said even if they considered them we would still not meet the required amount,
i am at a loss, if you were too follow these guide lines on the refusal it would be impossible to ever get a visa if on incapacity unless you had lots of money in your bank,
they went on about only ever having a few hundred pounds in credit in my account at one time ,
wow i am fighting to stay alive sorry i don't have a job earning 50k a year,
my legal man has said they have just put in their own interpretation on the rules , but i have again checked the ukba site, and it clearly says the only formula to use is income less housing = more than income support for two people they can not refuse on financial grounds, if we meet this criteria, but they have,
so what to do, my love has been in tears all day, to be honest me too,
i really hate this dam country, and this like all governments are looking to destroy family life , i am not some one that has been on benifits all my life , the first time i claimed any thing was after i had cancer, and to be honest when i am able to travel more than 50 yds again with out starving my self first , i will be first in the que for work ,
my daughter also gets carers to help look after me ,
they also said money from my daughter can not be taken into account but we never included any third party payments other than storage income and pension, so why even mention money my daughter gives me . it seems they are just looking for reasons not to give her a visa.
really so unhappy , life can just be so bad at times, my love is the best thing to happen in my life in recent times, she truly is an angel,
any help or guidence from any one would truly be appreciated ,

Re: refused visa even though i followed all required information, on dla / incapaci

Whatever you do - appeal. See "how to appeal" on Euro Pinoy site.

Re: refused visa even though i followed all required information, on dla / incapaci

As has been suggested, if your legal man believes that UKBA made an error against immigration rules then immediately:-

- send a letter to the ECM at Manila Hub stating your case, the evidential dicuments submitted and requesting a re-consideration of the ECO's decision.
- also send in the forms for appeal within the timescale indicated.

On the refusal, is it possible to post the exact wording of the refusal (take out any personal details) as it's never easy to understand what the refusal is based upon without seeing the words.
Incidently almost all refusals are based on a 'template' of specific word to use and must make reference to the specific immigration rules that have not been complied with.

The so-called 'old-rules' are almost identical to the 'new rules' exemption route as far as maintenance and accomodation are concerned. Namely the need to show disposable income at least equal to equivalent Income Support levels for a similar family. Based on that, it doesn't seem that differences in interpretation of changes in immigration rules would create such confusion. Hopefully if you can provide us with the actual wording we can work out exactly where the non-compliance has been made (one side or another)

Appeals are never an easy option. They take time and energy and often require a pretty experienced immigration specialist. Better to send off that reconsideration request asap and follow up almost daily with pressures at all levels of the British Embassy included the Ambassador.

Re: refused visa even though i followed all required information, on dla / incapaci

Dom the European route for Brits is only available via the narrow interpretation the H.O. makes of the Singh E.C.J.

It is only applicable when the (country national) Brit has followed an economic exersize of treaty rights as
1) A worker
2) Self Employed

http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/eun/eun2/#header14


Regulation 9 is the law behind this

Family members of United Kingdom nationals9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.
(2) The conditions are that—
(a)the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and
(b)if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.
(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member.

This is a summation as a set of questions


Q1: What are the conditions to make use of Surinder Singh route?

Regulation 9 requires to following to make use of Surinder Singh route:

• the UK citizen is residing in the other member state as a worker or self-employed person
• The family member is married/CP to the UK citizen and has been living together in the other member state.


Q2: Is the family member required to hold a visa / Residence Card of the other member state?

No. This is not required. However, the family member would need to provide proof of residence in the another member state and a Residence Card can help proving that.


Q3: How long is the British citizen and family member are required to live in the other member state?

This is not specified in the regulations. The longer, the better chances of satisfying the HO. The rule of thumb given in the forum is 6 months but an application can be made before that and if refused, a new application can be made a few weeks later.


Q4: Is a EEA Family Permit required to return to the UK?

No. You can also seek admittance at the border (this is mainly relevant if the family member is non visa national or you are crossing at Calais/any other port).

However, as the relevant documents required for the Surinder Singh route are those from the other member state, it make sense to verify you have all the required documents before returning to the UK. Obtaining them later might be more difficult. Also, the local staff in the consulate can normally read documents in the local language so there is no need to translate them.


Q5: What are the requirements once you return to the UK? When can a Residence Card be applied for?

Once you are back in the UK, there are no specific requirements. Under the Surinder Singh route, only the activities in the other member state matter. You are not required to work in the UK in order for the family member to reside in the UK.

It is advisable for the family member to apply for a Residence Card using form EEA2. The form has a dedicated section for Surinder Singh cases. You will need to provide (again) evidence of the British national employment in the other member state and evidence of residence there. The application can be made any time once you return.

After 5 years of residence, an application for Confirmation of PR status using form EEA4 can be applied for. Again, the same evidence from the other member state is required. Once a PR status has been obtained (after 5 years of residence), the non-EEA national can apply for British citizenship as a spouse of BC.


We are not all fortunate to be Italien lol

Re: refused visa even though i followed all required information, on dla / incapaci

As far as I know, We have friends named Fred and Malou from Peterborough Fred is British and Malou is Filipina, he could not get her a spouse visa because he claimed an incapacity benefits. They rejected their application years ago until now she is still working in Oman and he is in Peterborough. She is only given a visit visa every time she apply because she is married to British. Eventually they gave up applying.

Re: refused visa even though i followed all required information, on dla / incapaci

The OP indicated he cannot walk more than 50 yards and given the seriousness of his health condition I doubt that, travelling, let alone living in another country would be a viable option.

Re: refused visa even though i followed all required information, on dla / incapaci

According to the following link on the income rules, you cannot use Incapacity Benefit towards the financial requirements...

http://www.ukba.homeoffice.gov.uk/s...DIs/chp8-annex/section-FM-1.7.pdf?view=Binary

See section 4.2 on page 13.

Re: refused visa even though i followed all required information, on dla / incapaci

Please see attached copy of refusal, , please read notes at the end
‘ 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 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.

We never included any third party funds in our application, so can not see why any funds from my daughter were include, in any event i pay my daughters insurance and council tax from my bank,
but did not see any reason to explain this because this money was never included, we did in fact supply my pension statement, which they returned with the refusal, we also supplied my bank statements itemised with my storage funds, and these payments are also shown on my council tax bill, this is why i pay council tax, I am in fact eligable to claim £143.00 IN INCOME SUPPORT AND INTEREST ON MY MORTGAGE each week, but i have never claimed this because i manage on what i already receive, my only desire is to get our small business started as soon as my wife is allowed into the uk, and get off benifits,
it is clear on reading all guides for our application, that they disregarded the rules, invented their own reasons which were not included in our claim, failed to reply with the correct refusal,
i just dispair at the incompetence, and truly fear i will never see my so wonderful love again in my life time

Re: refused visa even though i followed all required information, on dla / incapaci

If you claim exemption from the new income requirements based on your disability, you have to meet the 'old' requirements of an income at least of income support level.

As you are entitled to income support/mortgage interest payments of £143.00/week but you are not claiming it, that demonstrates your income must be below the Income Support level. I think your only chance is to claim the Income Support you are entitled to and for your wife to submit a new claim.

I don't think reconsideration or an appeal would be likely to succeed, but Micawber is the real expert here, so you may want to wait for his reply.

Re: refused visa even though i followed all required information, on dla / incapaci

I hear what you are saying Howerd, but we havent reached 28th October yet so surely the old rules apply until 28th October? They seem to have made a mistake there? As the lady applied well inside the cutoff date of 28th october, any appeal would fall inline with the earlier regulations on the TOEIC test result.

Re: refused visa even though i followed all required information, on dla / incapaci

I think any appeal would fail. As far as I know, appeals would be made on current facts. The current fact is that the sponsor does not not have Income Support levels of income, which is what the UKBA are looking for. I think it would be necessary to reach the Income Support level of income first and then re-apply.

The English language requirements is a separate issue and I may have been wrong about the requirement for a B1 test from 28 October on a Spouse Visa, as I now think it only applies at the ILR and naturalisation stages.

Re: refused visa even though i followed all required information, on dla / incapaci

Thank you for your reply, i see what you are saying, but i do have more left over than the current income support for two people , after housing cost, as the guideline on the ukba site says,
income support for 1 person is i think around £102 , for two people it is £112-65 so the government is saying any extra person living in the same houshold can live for £10-00. so theoretically i only need £10-00 each week left over, and in fact after housing i have £140 each week left over, that is why i do not claim income support, and this is why i feel we are within the guidelines ,
any replies welcome

Re: refused visa even though i followed all required information, on dla / incapaci

sorry got that wrong, single is £71.70 , couple is £112-55 , , but i still have more than £112-55 left over after housing cost, so i am really still confused

Re: refused visa even though i followed all required information, on dla / incapaci

That is certainly the case as if my wife had applied for ILR some 6 weeks later than she did ie after 28th Oct then she would have been subject to that requirement. As she applied for ILR in mid September the new ruling did not apply.

Re: refused visa even though i followed all required information, on dla / incapaci

Unfortunately, Bernie, our financial circumstances are different to yours and I don't really understand the way income support etc works. Certainly, if the UKBA are wrong in this matter then either applying for reconsideration or appealing would be the way to go.

The UKBA do get things wrong from time to time. They do refuse when they ought not so we shouldn't assume that they dont make a mistake now and again.

Moving on. How about this portion of their letter to you:

Can you provide evidence for that?

And can you provide evidence for the above?

By not providing evidence of the two sums above you have weakened your case, allowing the ECO to conclude, overall, that your application should be refused. Evidence or lack of, can be crucial.

Re: refused visa even though i followed all required information, on dla / incapaci

If, as you say, you do meet the old income requirements, then you should ask for reconsideration (under the old rules) as well as prepare for any appeal within the time limit.

But, bear in mind the following quote from http://www.ukba.homeoffice.gov.uk/s...w/IDIs/chp8-annex/maintenance.pdf?view=Binary...

I would suggest that you may not meet that requirement as you say you are still entitled to Income Support, despite your level of income exceeding £112.55p/week.

Re: refused visa even though i followed all required information, on dla / incapaci

We sent in my bank sytatements and indicated these payment, we also sent in my council tax bill which shows my storage payent income, this is why i need to pay council tax, so local government excepted my income details, we sent my up to date pension statement, and noted these payments on my bank statement,
so all these things were actually sent and detailed to them, they just chose to ignore them, we know they received them, because with the exception of my bank statements they returned all of these back to us,
many thanks

Re: refused visa even though i followed all required information, on dla / incapaci

Well, not only do they make mistakes from time to time, they also do not always look at the evidence submitted, which our good forum friend Marko will tell you as they evidently didnt read his evidence either and refused his wifes's spouse visa application. It went as far as the eve of the appeal until they capitulated and overturned the verdict. It is unfortunate for those for whom this happens to.

Amazing but true.