Sole Responsibility

We have recently dealt with a large number of dependent visa refusals on the basis that the Sole Responsibility

Test had not been met by the UK-based parent.  After advising on what type of evidence was required to show that one parent had abdicated or abandoned responsibility for their child, we were able to make a successful applications on behalf of our clients. And those applications that had been erroneously refused, we challenged

through the Judicial Review process, also with successful outcomes.

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Visit Visa Refusals

In the last 12 - 24 months, we have seen a growing number of visit visa applications being refused.  The reasons for refusal are often ridiculous, with wording having clearly been cut and pasted from other refusal letters, stating other people's names and nationalities! We have also seen arguably discriminatory financial decisions, using generic economic wording to refuse nationals from poorer countries. Documentary evidence often gets ignored and standard reasons for refusal paragraphs are used, which have no relevance to the individual application. These applications should be challenged and although there is no right of appeal in such cases, the refusal decisions can be challenged by way of judicial review.

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Advisa Solicitors currently have a success rate of over 95% in overturning visit visa refusals.

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NHS Skilled workers

Since opening our firm in 2008, we have helped large numbers of foreign nationals to obtain and extend Skilled Worker visas so that they can come to the UK and work for the National Health Service (NHS) as Doctors, Nurses, Carers etc.  We have also helped Students to switch into the Skilled Worker category upon completion of their studies, many of whom have gone on to work for the NHS. 

 

In recognition of the hard work and dedication that foreign nationals have made and are continuing to make to the NHS, we are now offering a 15% discount for visa applications made from workers in the NHS.

 

Contact us at enquiries@advisasolicitors.co.uk

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Private Life Appeal

We successfully represented a client with an appeal against the refusal of his ILR application on the grounds of his private life. Our client had been living in the UK for almost 15 years in total, however when he applied for ILR under the 10 year Rule, his application was refused on the basis that he had been absent from the UK for a period of more than 6 months. 

 

We successfully argued that our client had built a life for himself in the UK, relying on witness statements from friends, letters of recommendation from employers and gathering as much evidence as possible to show that our client was a benefit to society. The Judge accepted our argument that our client’s private life in the UK outweighed the public interest in maintaining effective immigration control and his appeal was allowed. He was given indefinite leave following the implantation of the appeal despite the appeal being granted on private life grounds.

 

October 2022

 

 

Qualifying period for indefinite leave

We have recently had a number of indefinite leave applications refused on the basis that there was a gap in the 5 year or 10 year “qualifying period”. Fortunately, we were able to overturn these decisions in favour of our clients.  

 

In one particular case, the Home Office tried to argue that because our client’s appeal against a previous refusal had ultimately been unsuccessful, this led to a gap in her qualifying period.  We were able to argue that Section 3C of the Immigration Act 1971 protected our client’s position throughout, and that it was irrelevant whether or not her appeal was unsuccessful, as a fresh application had been submitted within the required 14 days in order for her leave to be “continuous”.  This was eventually accepted by the Home Office and our client was granted indefinite leave.

 

May 2022

 

 

Spouse entry clearance refusals on maintenance grounds
Over the last 6-12 months we have seen a significant rise in the number of spouse visa refusals on maintenance grounds. The changes to the maintenance requirements and in particular the requirement for a couple with no children to show income of at least £18,600 have made it very difficult for many people to successfully sponsor their spouses to join them in the UK. This matter has been heavily litigated in the Courts and it has been argued that the requirement is unfair in many cases. 

Quite apart from the injustice that the financial threshold can cause in individual cases, we have seen many applicants being refused on the basis that, despite the fact that they do have sufficient earnings, their documents or at least those submitted do not meet the strict documentary criteria. There has been a reluctance on the part of Embassies to apply the documentary flexibility rules. These rules require decision makers to contact applicants and give them a chance to provide further documents in cases where a document is in the wrong format, or where information is missing from a document or where a copy is submitted instead of an original document. We have also seen several decisions where the very complexity of the Rules has caused decision makers themselves to make errors when applying them (particularly when considering combinations of income sources such as savings).

If you have been refused a spouse visa on maintenance grounds or if you are preparing an application and concerned to ensure that you meet the requirements, please contact us at enquiries@advisasolicitors.co.uk and we will be happy to discuss your case with you. 
 
January 2021
 

Skilled Worker position - "genuine vacancy"
Over the last few months we have been seeing more and more refusals of Tier 2 visa applications where the reason given is that the position the applicant is being sponsored for is not a genuine vacancy. The applicants in these cases usually otherwise meet the requirements of the Tier 2 rules. The reasons given for these findings, usually made without interviewing the applicant or the sponsor, vary. Common examples, however, are that the applicant does not have sufficient work experience (even though in the case in question the position was a graduate position), the size of the sponsor's business does not justify the need for further employees and that the salary being paid is at the minimum required for the job code being used. 

Our opinion in the majority of these cases is that the Home Office's decisions do not give adequate reasons for their finding that the position is not genuine. The Home Office do have the discretion to undertake a genuineness test in Tier 2 applications, but in many of these cases the genuineness assessment appears to have been made with little consideration of the full circumstances of the case. When this is considered against the backdrop that the rationale for the Tier 2 system was to provide the onus on sponsors to undertake more responsibilities and that in return they would be considered "highly trusted", such decisions are open to challenge in our opinion. The difficulty currently is that the right of appeal has been taken away from these cases and so any challenge to the decisions must be made initially by an administrative review and then if the decision is upheld, by Judicial Review to the Upper Tribunal. 

We have nevertheless had some success with these cases. The Tier 2 refusal is usually upheld at administrative review but there is more scope for success through negotiation with the Home Office after a Judicial Review has been submitted. We are hopeful that we can take one of these cases through to a full Judicial Review hearing and potentially argue that a decision finding a position to be not genuine when a highly trusted sponsor has declared the position to be genuine requires more justification than the simple speculation found in these refusals. If you have had a refusal along these lines, please feel free to contact Adam Reid at our offices as he will be happy to discuss your case with you and to advise you on your options.   

October 2015

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Tier 1 Entrepreneur - no genuine intention to establish a business – Judicial Review
We are seeing a continuation of the Home Office’s practice of refusing large numbers of Tier 1 (entrepreneur) applications. Whilst there have been less refusals on the minor documentary grounds seen in 2013 (for example, missing contact details in documents / missing names from adverts) due to the amendments to paragraph 245 of the Immigration Rules bringing documentary flexibility into the Rules, the main reason for recent refusals has been on “genuineness” grounds. Decision makers typically interview applicants and then use the answers provided in interview to provide reasons why it is not accepted that the applicant genuinely intends to establish a business.

Where a Tier 1 (entrepreneur) application is poorly prepared, for example, with no business plan submitted, or with the applicant unable to give a detailed account of their planned business at interview, then this does give the Home Office significant scope to refuse entrepreneurs under these rules. We have seen cases, however, of applicants who have submitted business plans and have provided comprehensive details of their plans including market research conducted at interview and nevertheless been refused. In these cases there may be scope for challenging the Home Office’s decision on grounds that their genuineness finding is irrational or unreasonable. Whilst the unreasonableness threshold in Judicial Review applications has been set high by the Courts, the Home Office will sometimes settle borderline cases without the need to lodge the Judicial Review or prior to the matter being put before a Judge. If you have a right of appeal to the Tribunal then the decision must have been made on the balance of probabilities. 

If you have recently had a Tier 1 (entrepreneur) application refused feel free to contact us and we will give you a free initial opinion on your options.

January 2015


Tier 1 Entrepreneur appeal success - skill level of business or skill level of individual role within the business?
We recently won an appeal where the Home Office refused a tier 1 entrepreneur application because they stated that the client’s core business was not at the appropriate skill level.

The client had given her job title / SOC code as a customer services manager but the Home Office concluded that as the companies main business was the selling of products and that as the selling of these products was not regarded as sufficiently skilled then she should be refused.

This is a tricky issue that does seem to come up often in entrepreneur applications. The Tier 1 rules (Appendix A) do indeed say that “work” for the purposes of the rules means “core service” provided by the business. Most entrepreneurial enterprises, however, will involve the selling of a product or service and at the same time the SOC codes are designed to cater for individual roles within businesses as opposed to the overall business activity. Furthermore, the Rules also state that an applicant must provide the “occupation you are working in” and that “you must make a decision based on your own duties and responsibilities” – so there is in our opinion some conflict between these two ideas. In many cases a business will essentially be selling a certain product (after all, celebrated entrepreneurs such as Lord Alan Sugar / Sir Richard Branson both ran businesses which essentially sold products) and an individual may have many roles within the business. 

We argued that there must be scope within the rules for an individual to break down their own role / job title within the business and to elect an SOC code based on this (see the Tier 1 entrepreneur application form which asks for the applicant’s “job title”). We also argued that the principle of one “core service” is in the case of many businesses an oversimplification as a business can be comprised of a combination of services. The Judge accepted our arguments and concluded that the client’s role within the business was sufficiently skilled and that the business’s core service was also sufficiently skilled. Her appeal was allowed.

December 2014

Entry clearance Judicial Review – previous criminal convictions not disclosed
One of the most common reason for refusing an entry clearance application under the general grounds for refusal is for the failure of the applicant to disclose prior criminal convictions. Where an applicant does not provide details of a previous conviction on an application form then their application will usually be refused under Paragraph 320(7A) of the Immigration Rules. They will also be told that any future applications will be refused under 320(7B) which is applied against someone who has used deception in an immigration application made in the last 10 years.

We have had some success in overturning these cases, usually through the Judicial Review process as in many of these cases there is no right of appeal. There is often scope for challenging refusals on these grounds due to a disparity in some cases between how the law says paragraph 320(7A) and 320(7B) should be applied and how it is applied in practice. The Court of Appeal considered the general grounds provisions in the case of AA Nigeria [2010] EWCA Civ 773 and found that both paragraphs of the rules required the decision maker to prove that the applicant had been dishonest. It is not enough in such cases for there to merely be a misrepresentation. It has to be shown to have been made dishonestly. 

In cases where a serious criminal offence has not been disclosed, it is going to be difficult for an applicant to argue that he forgot about this prior offence or did not realise it was a criminal offence. For more minor offences, however, such as traffic offences, applicants do often forget to declare these or to fail to realise that they have received a criminal conviction. In such cases, there is little reason for applicants to fail to declare these matters intentionally as the offences themselves are unlikely to be sufficiently grave to justify a refusal. 

In one recent case, a client of ours was refused a visit visa for failing to declare a minor offence from over 7 years prior to the date of the application. We challenged the decision by threatening to lodge a Judicial Review and the Embassy concerned reviewed their decision and then issued the visa. 

December 2014


Refusal of an Entrepreneur application – bank statement missing from a sequence
Our client contacted us after their Tier 1 entrepreneur application was refused because they had not provided sufficient evidence of maintenance. Specifically, their bank statements did not cover a 90-day period ending within a month of the date of their application. Our client accepted that the bank statements submitted ended 32 days prior to the date of their application. We argued, however, that paragraph 245AA of the Immigration Rules, which provides for documentary flexibility in some cases, should have been applied. In particular, because our client had omitted a bank statement that was part of a sequence of documents, he should have been contacted and given an opportunity to provide the final statement. 

The Home Office were represented at the appeal and argued that 245AA does not cover the situation where someone provides 3 months bank statements and omits the more recent statement. They said that the meaning of 245AA should only apply where the missing document is from the middle of a sequence, for example, where someone provides statements from January – July but April is missing.

The Judge did not accept this narrow interpretation of the rule and allowed our client’s appeal on the basis that the Home Office’s decision was not in accordance with the Immigration Rules. The Judge found our client should have been contacted and given an opportunity to provide an updated bank statement.

Please note that since this decision, the documentary flexibility provisions of the Rules have been widened further. If you have recently been refused under the Points Based System for documentary reasons, you may be able to challenge this decision. Please contact us and we will provide a free preliminary opinion.

October 2014

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Entry clearance judicial review – failing to disclose prior breaches of the immigration rules
It is common for Embassies to refuse entry clearance applications due to previous breaches of the immigration rules, such as overstaying. It is perhaps more common, however, for an application to be refused due to an applicant failing to disclose a prior breach of the rules. This kind of refusal is what is known as a refusal under the general grounds of the immigration rules. Such a refusal can have an extremely detrimental affect on an individual’s record. Their current application will be refused under paragraph 320(7A) of the Immigration Rules and any future applications likely to be refused under 320(7B) of the Immigration Rules for reason of the use of deception in a previous immigration application.

Applicants, however, are sometimes confused about whether they have previously breached the rules and how to explain this on their application forms. A common problem is the question in the form which ask “have you previously been required to leave the UK?”. We have had a number of clients who were confused by this question and despite explaining elsewhere on their application that they had previously overstayed, did not appreciate that they should provide details of an overstay here.

In each of these cases, we were able to get the refusal overturned as it was clear that the applicant had not used deception. 

September 2014


Tier 1 - earnings evidence not verified
During 2012 we won a number of appeals where applicant's Tier 1 extension applications were refused due to the UKBA's inability to verify documents. In some cases the refusal alleged that the documents were false and in others the refusal simply stated that they could not be verified.

In all of these cases the Judges were prepared to take a sympathetic view of the evidence. We were able to provide updated evidence as to the authenticity of the documentation and our client's generally gave credible evidence. These cases were also assisted by the UKBA's verification reports which were vague and arguably unreliable. In one case the report was not provided in evidence at all.

December 2013

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Tier 1 (entrepreneur) refusals
Since the end of last year and the December changes to the Immigration Rules, the UKBA appear to have decided that too many Tier 1 entrepreneur applications were made. They subsequently tightened up the rules to bring in a “genuine business” test and also appear to be refusing many of the entrepreneur applications. We have seen a number of entrepreneur refusals due to missing documents (such as advertisements / evidence of being a director / trade contracts) and also on grounds that the proposed business is not at the appropriate skill level.

We are confident that many of these decisions can be successfully challenged in the Tribunal. Although new documentation cannot be submitted by someone to show that they meet the points requirements in an entrepreneur appeal, it may be possible to argue that the UKBA have not acted correctly by failing to request further documentation. This will be the case, for example, where a document was submitted in the wrong format, or where it was one of a sequence of documents. It may also be possible to argue that the UKBA have not applied their evidential flexibility policy which undertakes to generally contact applicants to request missing documentation.

Contact us if you need assistance with a Tier 1 entrepreneur application or appeal. If you email the decision to us at enquiries@advisasolicitors.co.uk we will give you an opinion free of charge.

April 2013

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More spouse entry clearance successes
We have recently had a number of spousal / PBS family member entry clearance appeals which have been successful. In four of the appeals, the overseas applicant had previously overstayed in the UK and was considered as having a bad immigration history, resulting in refusal under para 320(11) of the Rules. In another appeal, the Sponsor was receiving Child Benefit and Tax Credits and the ECO concluded that her earnings were not sufficient to maintain herself, her dependents and her spouse, plus the ECO found that the Sponsor could easily join her husband in their country of origin.

In each of the appeals, we made strong arguments under the Immigration Rules as to why the appeals should be successful. We also raised Article 8 of the ECHR as a back-up, and provided evidence as to why the Sponsor could not be expected to live overseas. However, all of the appeals were allowed under the Rules, without the need to even consider Article 8, which was the best possible outcomes for our clients. 

January 2013
 

Tier 1 - earnings evidence not verified
During 2012 we won a number of appeals where applicant's Tier 1 extension applications were refused due to the UKBA's inability to verify documents. In some cases the refusal alleged that the documents were false and in others the refusal simply stated that they could not be verified.

In all of these cases the Judges were prepared to take a sympathetic view of the evidence. We were able to provide updated evidence as to the authenticity of the documentation and our client's generally gave credible evidence. These cases were also assisted by the UKBA's verification reports which were vague and arguably unreliable. In one case the report was not provided in evidence at all.

December 2012

 

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Entry Clearance refusals based on para 320 of the Rules
Following on from our post below, we have recently had a number of appeals allowed on the grounds that the ECO/UKBA were not able to substantiate their allegations of deception / previous breaches when refusing an applicant under para 320 of the Rules. It is important to remember that the burden of proof rests with the ECO/UKBA when an allegation such as this is raised against an applicant and it is always advisable to challenge a refusal of these grounds, not least in order to clear your record and prevent any further entry clearance problems in the future. 

October 2012


Visit Visa refusals
We continue to see a high number of refusals of visit visa applications. In most cases, the ECO has wrongly concluded that the applicant does not intend to return to their country of origin at the end of their visit. These decisions should be challenged because in the majority of cases, the ECO has no basis upon which to make such an allegation. 

If your application has been refused or if your family member's application has been refused, contact us now for a free assessment of the merits of your case.

February 2012

Mandatory bans and the General Grounds for Refusal
Following changes to the general grounds for refusal under Paragraph 320 of the Immigration Rules, Embassies are using these parts of the Rules to refuse entry clearance applications on the basis of applicants having previously overstayed, breached the Immigration Rules, used deception in an application or often for having made a simple mistake in their application.

We have recently had a number of appeals involving these provisions which are often incorrectly interpreted by the Embassy officials. It is also important to understand the difference between false representations/documents, and non disclosure of a material fact as this will affect any fresh application that is submitted and will also affect your decision as to whether or not to appeal. 

In many cases we have seen, the ECO has wrongly relied on paragraph 320(7B) to refuse an application and it is worth checking the Entry Clearance Guidance to see if your case was wrongly refused. Also get in contact with us if you would like further advice in relation to your particular situation.

January 2012


Tier 2 Skilled Workers - sponsor errors
During 2012 we dealt with a number of appeals resulting from Sponsor errors in the Certificate of Sponsorship - often relating to the SOC code or rate of pay.

In one appeal, our client's Tier 2 application was refused as the SOC code provided by their sponsor was not graduate level. The Sponsor had made an error and given the wrong SOC code. The Judge accepted our argument that he was able to find that our client's actual job fell within a graduate level SOC code as opposed to the code provided by the sponsor in their Certificate of Sponsorship.

September 2012

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Uplift Ratio
Our client's application was refused on the grounds that the uplift ratio could not be applied to some of his earnings, which were from overseas. We prepared a detailed spreadsheet, setting out all of our client's income from within the UK and from overseas, and provided evidence to show what earnings had been made whilst physically overseas. The UKBA tried to argue at the appeal that it was not possible to apply the uplift ratio when the client was based in the UK, but the Judge accepted that he was carrying out work when he travelled overseas, and could therefore apply the uplift ratio to these overseas earnings. This meant that his earnings went above the required threashold and the appeal was allowed.

March 2011

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Tier 1 dependent entry clearance appeal - alleged misrepresentation
Our client was already in the UK as a Tier 1 (General) Migrant. His wife applied to join him from India but was refused on the basis that she had failed to disclose the fact that she had previously been "otherwise required to leave the UK" following the refusal of a previous student application from within the UK.

This type of refusal is know as refusal under the general grounds for refusal (paragraph 320 of the Immigration Rules) and refusals under these provisions are becoming more common, often involving mandatory bans of 1, 5 or 10 years.

We submitted detailed arguments to the Immigration Judge at the Tribunal. We argued that the misrepresentation was innocent, that when taken against the application form as a whole there was no misrepresentation or deception (on another part of the form the client had provided the details of the previous refusal), and further that the meaning of "otherwise required to leave the UK" was unclear and not properly defined.

The Judge agreed with all of these arguments and allowed the appeal.

March 2011

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BHC Pakistan agrees to overturn spouse refusal
Our client's spouse entry clearance appeal was refused on the basis that the marriage was not subsisting and the parties did not intend to live together permanently as husband and wife. We lodged an appeal to protect our client's position but in addition, we submitted detailed legal representations to the ECO, asking him to review the decision. We also quoted a number of cases that supported our arguments and after about 2 months, the ECO backed down and agreed to issue the visa - so it is well worth trying this route as an alternative to waiting 7 months for an appeal hearing.

February 2011
 

Pankina Policy Cases
Following the case of Pankina in which the Court of Appeal decided that the maintenance rules were not part of the Immigration Rules, the UKBA implemented a policy which has attempted to review prior maintenance refusals for certain individuals. The Policy is narrowly worded and arguably fails to deal with many cases which fall within the Pankina ambit. For example, the Policy will only assist individuals who were refused on maintenance grounds and who are now legally in the UK.

We have in recent weeks successfully challenged decisions of the UKBA refusing to change their decisions under the Policy. Although we do not expect the Policy to be changed there is certainly scope for arguing that more cases should be reconsidered following Pankina.

If you have been refused under the previous Tier 1 Rules (maintenance or otherwise) and think that the decision in Pankina could assist you please contact us and we will advise you whether or not we can help.

November 2010 


Tier 4 Judicial Review success
Our client's Tier 4 application was invalidated on the grounds that his photographs did not meet the mandatory specifications. He submitted a fresh application but by that time, the maintenance requirement had changed and he could no longer show sufficient maintenance funds. We initiated JR proceedings on the basis that invalidation of his initial application was unreasonable and irrational, using the case of Forrester to support our arguments.

We have now been granted permission by the High Court Judge, who specifically referred to the case of Forrester in his reasons for granting permission. We are hoping that the UKBA will now back down and reconsider our client's initial application but we will update this section once we know more.

October 2010 

Judicial Review update
We are continuing to successfully challenge decisions of the SSHD using the judicial review procedure. 

We have seen so many cases where the SSHD has invalidated an application, when in fact the application was valid. The usual reasons for invalidaton are that the photographs were not acceptable or the correct fees were not paid. In most of our cases, we have managed to demonstrate that the decision to invalidate was incorrect and have persuaded the SSHD to reconsider the application - and grant it.

We have also seen a number of refusals where the client has not been given a right of appeal. In this situation, the only remedy is judicial review if you believe that the SSHD's decision was wrong. It is usually advisable to challenge such a decision, because you never know when the Rules might change, and you may suddenly find that you are no longer eligible to make a fresh application. But remember, there is a 3-month time limit from the date of the original decision in order to commence JR proceedings.

September 2010 

 

August 2010 maintenance requirement update
Well, our optimism regarding the defeat of the maintenance rules finally paid off! In July, the Court of Appeal concluded in the case of Pankina that the 3-month maintenance requirement as contained in the Policy Guidance was ultra vires, as it should have been part of the substantive immigration rules and thereby approved by Parliament. 

If your Tier 1 application was refused solely on maintenance grounds, you may now be eligible to have your application reviewed. Contact us if you require more information in this regard.

However, remember that as of 23 July 2010, the 3-month Maintenance requirement was incorporated into the Immigration Rules, so any applications made after that date will need to meet the full maintenance requirement.


Cases challenging the legality of the 3-month maintenance rule - Update - January 2010
We have 3 appeal cases where we are seeking to challenge the fairness / legality of the Tier 1 general and post-study maintenance rules. During January, two of these cases came before Senior Judges in the Tribunal and as a result they have now been stayed pending the outcome of the lead case which according to the Judge, is due to be heard in the Court of Appeal by May 2010.

We are optimistic that the maintenance rules can be defeated and we will keep you updated.

 

Spousal entry clearance refusal - British Embassy in Bogota change their decision
Our client contacted us after his wife's application to join him in the UK was turned down on the basis that there was insufficient evidence of their relationship.

We lodged an appeal to the Immigration and Asylum Tribunal and at the same time sent detailed arguments to the Entry Clearance Manager (ECM) in Bogota, requesting a review of the decision. 

The ECM amended their original decision within 6 weeks and entry clearance was granted without the need for our client to proceed to the full appeal.

January 2010

 

Tier 1 appeal victory / client also granted ILR!
One of our clients had been refused under Tier 1 for using business bank statements as evidence of his maintenance. Since the date of the refusal, he had also become eligible to apply for settlement as he had been in the UK for 5 years on a combination of work permit / HSMP leave.

We argued at the appeal that the business bank statements / bank letter met the requirements of the policy guidance as they did show his name as required. 

We also used recent AIT caselaw clarifying the Tribunal's jurisdiction to allow an appeal under any immigration rule, even where this wasn't necessarily the rule which the appellant applied under.

The Judge allowed the appeal under Tier 1 and also under the 5-year settlement provisions and our client is waiting for be granted Indefinite leave to remain.

December 2009


Self-employed Tier 1 success
Self-employed applicants often have problems proving their earnings, particularly if they are paid in cash. Our client was refused on the basis that his payslips and bank statements did not exactly match.

We argued on appeal that the guidance does not require earnings evidence to match exactly but to corroborate or support each other. The Judge found our client credible and accepted our arguments, allowing the appeal within a few days.

December 2009

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Spouse appeals
We have seen a high number of spouse entry clearance refusals in recent months but fortunately, we have also successfully appealed all of our cases. Most recently, our client, an Algerian national, married to a British national who was originally from Ethiopia. It was not believed that their marriage was genuine and entry clearance was refused. We wrote to the British Embassy and asked them to review and overturn their decision but they refused to do this, a point which the judge remarked upon at the appeal hearing, just before he went on to allow the appeal on the spot.

In another recent case, the Judge initially dismissed our client's appeal because he agreed with the ECO that the marriage was not genuine. We took the case to the senior Tribunal, where it was agreed that the first Judge had made an error of law. At the remitted hearing last week, the appeal was finally allowed so we had a good outcome in the end.

Entry Clearance Officers often make wrong and unjustified decisions and it is definitely worth appealing against these decisions.

November 2009


Tier 1 update - Maintenance funds and fresh Applications - October 2009
We are still challenging the maintenance requirement in a number of our cases, on the basis that this requirement is "ultra vires". The Immigration Rules do not specify that the relevant funds must have been held in your account every day for the last 3 months. This requirement was only introduced via the Home Office Policy Guidance, which has received no Parliamentary approval. We are hoping that a decision on this issue will be forthcoming in the next few weeks. 

In the meantime, many applicants are choosing to submit a fresh application, which is possible even if your leave has now expired, as long as your last grant of leave was in one of the acceptable categories. By booking a same-day slot at the Home Office, we can help you to minimise any time spent in the UK unlawfully, but we strongly advise you to take legal advice before embarking on this course of action.


A&E Doctor wins appeal under Article 8
One of our clients had been working as a middle grade doctor in an Accident and Emergency ward in a UK hospital. Despite being in the UK since 2002 and having had two children born in the UK, he was refused on maintenance grounds as his accounts fell below the required amounts on a number of ocassions during the 3-months prior to making his application.

Among other things, we argued that the decision of the UKBA breached our client's right to private life in the UK and also that it was not in the public interest to remove someone whose occupation is classified as a shortage occupation by the Government.

The Judge agreed with our arguments and our client's appeal was allowed. The Home Office have not appealed.

23 September 2009

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Dependant relatives – 2 recent successful decisions
The first case concerned an elderly dependent lone parent living in Yemen, who was under 65 years of age. The ECO raised a number of spurious issues in their reasons for refusal letter, and concluded that the parent was not living in “the most exceptional compassionate circumstances”. We submitted comprehensive evidence and legal arguments to show that she was living in such circumstances, and the Judge accepted this. The appeal was allowed under the Immigration Rules, meaning that our client will now be granted indefinite leave to enter the UK. 

The second case concerned the two young sons of our client who had been refused entry to the UK to join their mother, on the basis that she did not have sole responsibility for them and nor could she adequately accommodate or maintain them. We collected various documents to support the case, including an estate agent’s report on the house, and evidence to prove the sole responsibility issue. All of the evidence was accepted on appeal and our client’s sons will now be reunited with their mother and their new baby brother.

September 2009


Indian family visit appeal allowed
Our client contacted us after he was refused entry clearance to come to the UK from India to visit his sister. The BDHC Chennai did not believe that our client intended to return to India and had questioned whether he had strong family and economic ties in India.

We presented a strong appeal to the Immigration Judge, convincing him that there was substantial evidence of our client's intention to return to India.

The appeal was allowed and the decision of the BDHC was overturned.

September 2009 


Tier 1 Judicial Review successes
In a number of cases throughout August and September our clients have been refused but have not had a right of appeal due to having either had continuing leave to remain or otherwise because they submitted their application after their leave expired.

We have challenged many of these decisions by Judicial Review action and in almost all of the cases the UKBA have reviewed their decision and granted our client leave to remain. Examples of these successes have been:

• Duplicate Barclays bank statements were not accepted as evidence of maintenance as the bank's logo was not on the statement;

• Recent evidence of maintenance (from the month prior to the date of application) not submitted with the initial application;

• Insufficient evidence of maintenance;

• Joint bank accounts not accepted.

If you have been refused and you feel that the decision is unfair but you do not have a right of appeal let us know. The UKBA are often willing to concede cases to avoid being taken to the High Court. Feel free to call us to discuss your case.

September 2009

Tier 1 Appeal update - August 2009
The Immigration Judges continued to allow Tier 1 appeals on the basis of new evidence but only where the evidence shows that appellants met the requirements at the date of the application. 

Following the case of NA & Others (see our article) Judges seemed more reluctant to allow challenges to the legality of the maintenance requirements. 

Tier 1 Judicial Review success
Following the threat of legal action in the High Court, UKBA have just agreed to overturn their previous decision to refuse our client’s Tier 1 application. 

Our client had mistakenly submitted the wrong evidence of maintenance funds. Her application was therefore refused and she did not have a right of appeal, nor was she able to submit a fresh application as she does not have a Masters Degree.

We submitted a detailed Letter before Action, threatening to initiate JR proceedings against UKBA if they did not back down. In a response received on Friday, UKBA accepted the new evidence of Maintenance funds and agreed to grant our client’s Tier 1 application. 

17 July 2009


Premium Bonds accepted as evidence of maintenance - Appeal allowed
Our client's Tier 1 application had been refused on the basis that he did not have the required funds (£1333 in his case). Although he did not have the funds in a UK bank account, he did hold substantial savings in NS & I savings accounts. The UKBA did not accept these funds.

We argued on appeal that the Policy Guidance does not expressly exclude Premium Bonds and further that it cannot have been intended by Parliament that such funds, which directly benefit the UK economy, should be excluded from list of accepted documents under the Tier 1 maintenance rules.

The Judge agreed that the Policy Guidance did not expressly exclude Premium Bonds and allowed the appeal on the basis of the funds held in these accounts.

10 July 2009

 

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Brazilian Embassy change their decision
Entry clearance to the UK as the spouse of a British citizen was denied to a Brazilian national by the British Embassy on the basis that her previous immigration history led them to believe that the marriage was not genuine. When we lodged an appeal on her behalf, we also submitted detailed representations to the Embassy and involved our client’s MP. In December, the Embassy reviewed their decision and issued our client with a spouse visa to the UK, so she was able to be here with her husband in time for Christmas. 

July 2009


Kuala Lumpur BHC issue dependent partner visa
One of our clients who was in the UK as a work permit holder had previously changed employment in the UK without informing the Home Office. He then left the UK and applied to return here as the dependant of his partner, who was also a work permit holder. The British Embassy in Malaysia refused his application on the basis that he had previously been in breach of the immigration laws and also wrongly imposed a re-entry ban. We submitted detailed representations on behalf of our client, setting out the full facts of his case and explaining that he was a benefit to society and should not be denied a visa to the UK simply because of an honest mistake in the past. We received news in December that the Embassy had reviewed their decision and had issued our client with his visa.

June 09


IGS / Post Study Work transitional arrangements - appeals update
Through May and June we have won 3 further appeals where we have successfully argued that individuals applying to switch from the IGS into the Post-study work scheme do not have to meet the maintenance requirements. This means that we now have a total of 5 successful decisions on this issue and believe that this has created a strong semi-precedent which will assist us to continue winning these cases. 

In each of the cases the Home Office have either not been represented or else provided very little assistance as to what the actual transitional arrangement is or any explanation of their emails. In the absence of any evidence from the Home Office, Immigration Judges have accepted that the transitional arrangements do extend to the maintenance requirement. Their findings have been based on the UKBA website and on emails from UKBA.

May-June 2009


Tier 1 (general) - tax document issue - Appeal allowed
Our client's Tier 1 application was refused on the basis that her tax documents (which in her country went from Jan-Dec) did not cover the exact period being claimed. Our client had provided tax documents from two separate years which did cover the claimed period but also covered other months outside of the period. She also provided payslips but was unable to provide bank statements.

We argued that the tax documents should have been accepted as they did cover the period being claimed. We argued that reference to the exact period in the Tier 1 guidance was not a strict requirement but merely a "suggestion" and that it would have been irrational in the current case to not consider the evidence as corroborating the earnings claimed.

The Judge agreed with our arguments and allowed the appeal on the basis that the tax documentation was sufficient evidence and corroborated with the payslips.

June 2009 


Tier 1 (general) - maintenance evidence not verified - Appeal allowed
Our client's Tier 1 application was refused on the basis of her maintenance documents. It was stated that efforts made to verify bank statements with the bank in China had been unsuccessful and so the documents were not accepted.

The basis of the refusal to accept the bank documents was a phone call from the British Embassy in China to the bank in question. Although the bank did confirm our client's details, the UKBA official raised other concerns with the information provided. We argued that the verification report was insufficient evidence that the documents were not genuine and further provided additional evidence from the bank to support the appeal.

The Judge accepted that the bank documents were genuine and allowed the appeal.

May 2009


Tier 1 (post-study worker) - Appeal allowed 
Second appeal allowed on the basis of the argument that individuals applying to switch from the IGS to the PSW do not need to meet ANY of the points requirements under the transitional provisions.

The main difference between this case and the case below was that this client did not receive emails directly from the Home Office but was still found to be entitled to rely on the policy.

April 2009


Tier 1 (general) - Appeal allowed - further evidence of funds from client's home country provided at the appeal in order to satisfy the maintenance requirements
Our client was refused under the maintenance provisions due to the fact that her UK bank accounts dipped below £800 for less than 1 week during the relevant 3-month period prior to the application.

We provided new evidence of her bank account in China at the appeal stage in the form of bank statements and a bank letter. There was no objection from the Home Office and the Immigration Judge was satisfied that the new statements were sufficient to show that our client met the maintenance requirements.

April 2009

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Refusal from Algiers overturned
Our client had met his British wife on holiday in Tunisia. Since they had met she had visited him many times in Algeria and they had been in constant contact by telephone. The Embassy in Algiers did not accept that the relationship was genuine despite strong evidence of commitment between the couple.

After considering our legal submissions and hearing evidence from the wife the Immigration Judge did not take long to decide that in his opinion the relationship was genuine and that the decision of the Embassy in Algiers should be overturned. 

The Judge was also critical of the way that the decision had been taken by the Entry Clearance Officer and ordered the grant of the visa be expedited.

April 2009


Tier 1 (post-study worker) - Appeal allowed - Judge accepted that transitional arrangements may mean that applicants from the IGS do not need to satisfy the maintenance requirements
Our client had been granted 1 year on the IGS and applied to switch into the Tier 1 (post study worker) category. He was confused about the transitional provisions applying to IGS applicants and so contacted the Home Office. He received emails from the Home Office informing him that individuals on the IGS would automatically be granted points in all categories including maintenance. He did not have £800 for 3 months prior to making his application and the Home Office then refused his application.

Despite some parts of the Tier 1 (psw) guidance making it clear that all applicants must meet the mainteance requirements, some parts are also ambiguous. The Immigration Judge accepted that our client had a legitimate expectation that he would be granted points for maintenance particularly due to having received emails from the Home Office informing him of this. His appeal was allowed. 

We are unsure as to how far these arguments can be extended but hope to establish a precedent that can be used by all IGS individuals who are refused on maintenance grounds.

March 2009


Tier 1 - insufficient evidence of maintenance - Appeal allowed
We have recently won 3 different appeals for clients who were refused for failing to meet the provisions of the maintenance requirements of the Tier 1 rules.

In two cases our clients failed to submit 3-months of bank statements. In the other case, our client's bank statements were more than 1 month prior to the date of her application.

In each of these cases we submitted further bank statements to the Immigration Judge and these were accepted as sufficient for the appeal to be successful. Immigration Judges continue to accept that further evidence is currently admissible in Tier 1 appeals.

A number of Judges have also commented that they consider the maintenance requirements to be overly strict and unfair. We believe that there is considerable room to successfully challenge the rules even in cases where applicants do not have the required funds for the 3-month period. We have a number of these appeals pending and hope to bring news of a successful outcome shortly. 

Feb - March 2009
 

Post-Study Application - BVC not a "relevant academic qualification"
A budding Barrister whose Post-Study Worker application was turned down by the home office as they did not consider his Bar Vocational Course to be a “relevant academic qualification” has just won his appeal. We submitted detailed evidence to prove that the BVC is a Postgraduate Diploma and is clearly an acceptable qualification under the Immigration Rules. 

The Judge agreed that it made no sense whatsoever to exclude this qualification and others like it such as the ACCA. Here is yet another example of strict and unreasonable decision-making on the part of the home office which was fortunately overturned through good appeal preparation, innovative legal arguments and a sensible Judge.

Jan 2009

Tier 1 - Tax document not accepted - Appeal allowed
Our client had submitted payslips and a tax document to prove her earnings for a period prior to some years of full-time study. The Home Office had refused her application on the grounds that the tax document she had provided had been stamped by her employer and was therefore not a different source of earnings to her payslips.

We made legal submissions to the Immigration Judge and argued that although the tax document was stamped by the applicant's employer, it had still gone through the official tax authority and that if its authenticity was challenged the Home Office should have made attempts to verify this. We also submitted evidence to prove the authenticity of the document.

The Judge accepted the arguments and the authenticity of the tax documents and was satisfied that our client met the requirements of the Immigration Rules. The Judge allowed the appeal on the spot.

November 2008 


Tier 1 - Post-Study Worker - Appeal allowed
Our client's post-study worker application was refused as the letter he provided from his University did not state the date of award of his degree or the date on which his course ended. 

We made submissions before the Immigration Judge and argued that the document submitted was sufficient. We claimed that the requirements of the Home Office Policy guidelines were not strictly law and so should not be construed in a manner more restrictive than the Immigration Rules themselves. In the alternative we submitted a new letter from the University clearly stating the date of award and argued the admissibility of this evidence. 

The Immigration Judge accepted the new evidence and allowed the appeal on the day.

November 08

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Refusal from India overturned
Our client's application to join his wife in the UK as her dependent was refused on the basis that the Entry Clearance Officer did not believe that their relationship was genuine despite having seen evidence of their relationship in the form of photos, phone bills, email and letter from friends.

We assisted our client in drafting strong witness statements and submitted a strong bundle of evidence to the AIT. The immigration Judge heard our submissions and our client's wife's evidence and was satisfied that the relationship was genuine and that the requirements of the Immigration Rules were satisfied.

The Judge allowed the appeal on the day.

September 08



Tier 1 - whether previous earnings earned in breach of work permit restrictions - Appeal allowed
Our client's application was refused as it was alleged that his previous earnings had been made in breach of his work permit conditions as he had been acting in a self-employed capacity.

We argued that our client's contract of employment and his conditions of work showed that he was truly an employee. We adduced substantial evidence of his working arrangements, the legal distinctions between employee / contractor and a report from an employment barrister who had agreed that our client was an employee.

The Immigration Judge accepted our arguments and was impressed with the report from the employment barrister. Our client's appeal was allowed.

August 08 


Tier 1 - self-employed applicant - insufficient evidence of earnings - Appeal allowed 
Our client was self-employed and provided evidence of substantial earnings over the previous year by providing invoices and his audited accounts.

The Home Office had refused his application as the income from the invoices did not exactly match the profits shown in the accounts.

We argued before the Immigration Judge that he had provided two sources of the evidences as required by the Tier 1 guidance and that to require more evidence was unreasonable. We also argued that the dictionary definition of the word "corroborate" does not mean that two things must match each other exactly but that they should merely support each other. Invoices of a business would never be the exact profit figure as expenses had to be taken into account.

We were also able to adduce new evidence in the form of business bank statements.

The immigration Judge agreed with our arguments and allowed our clients appeal. 

July 08

Chinese Marriage Visa Granted
Our client's application was refused on the basis that she and her husband had not provided sufficient evidence of their ability to maintain and accommodate themselves. One reason was that her husband was overdrawn with the bank.

We submitted detailed representations requesting a review of the decision arguing among other things that no proper consideration has been given to our client's prospects of employment considering that she was a young graduate who spoke good English.

The British Consulate indicated that they were prepared to change their decision within 24 hours of us lodging the appeal with them.

July 08


If you would like help with an application or have been refused a visa, then contact Adam Reid or Lisa Reid at our offices on 0845 3889623 or email enquiries@advisasolicitors.co.uk