# Appeal Vs. Re-Apply, that is the question



## diverseyharbor (Mar 26, 2013)

*Spouse Renewal Appeal*

Just go my letter yesterday that my spouse visa renewal was rejected. First question, how long does the appeal process take? 

Just a little background: we are appealing on grounds of human rights as we DO qualify for the financial requirement. Based on their letter back to us, we needed to provide our personal tax information (ie HMRC to show we are directors of a company and that we paid tax on the money we showed on our paystubs). We explained to them in a letter the tax year wasn't up yet and therefore could not provide HMRC document to match our payslips, but the payslips show tax we paid. We have now back tracked and have gotten my husbands taxes quickly done yesterday from the year previous when we first started our business (which doesn't reflect the financial requirement) but that way they can see we at least paid taxes, and I have filed for self assessment. 

So, we are appealing to get a face-to-face: They said we didn't provide some documents which we did, and will attach to the appeal, as well as my husband's 'new' taxes. We will also bring our accountant to the hearing. Any tips? Things we should be prepared for? 

I'm obviously a nervous wreck. We have made a home here....


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## diverseyharbor (Mar 26, 2013)

*New information in an Appeal?*

So we are appealing our spouse renewal decision. Can we bring new evidence? Or do they have to make a decision based on the paperwork we originally submitted?


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## WestCoastCanadianGirl (Mar 17, 2012)

If you have paperwork (bank statements, payslips etc) that was in existence _*on or before*_ the date that you originally applied but you did not submit with your application, then that is acceptable to submit for consideration in your appeal.

If you have paperwork (bank statements, payslips etc) that are dated _*after*_ the date of your original application, then said paperwork/evidence _will *not*_ be considered in your appeal.


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## diverseyharbor (Mar 26, 2013)

They are saying we "Failed to provide relevant HMRC documentation to evidence your role as a Director or show you have been paying taxes. You have provided no alternative financial evidence under any other financial route to meet the short fall. Therefore you have failed to meet the necessary income threshold" 

But, we explained in a letter that the tax year wasn't over and we had no HMRC documents to submit, so we submited all payslips that show tax being taken out.


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## nyclon (Apr 3, 2011)

Did you read FM 1.7 before you applied?


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## diverseyharbor (Mar 26, 2013)

Yes. But obviously we missed something. We didn't include HMRC Self Assessment from the year prior as it didn't reflect our current income and the financial requirement. The new self assessment isn't out until April 6 this year. So, they are asking for a tax document we don't have.


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## diverseyharbor (Mar 26, 2013)

Is it normal for them to keep my passport? If we get rejected in appeal process for the paperwork we didn't have, and want to re-apply with the paperwork once we have it (April 6th), Do I need to leave the country since my visa is expired? Are we able to reapply for the same visa after we have failed an appeal? Just trying to find out worse case scenario.


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## diverseyharbor (Mar 26, 2013)

Moderator, please delete this thread - I'm going to start new thread that is more clear.


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## diverseyharbor (Mar 26, 2013)

So, my spouse renewal was refused.

We are now torn between appeal vs. re-apply. I just have a few questions I'm hoping someone out there who has gone through this knows.

1. If we appeal it looks like the process is long (up to a year) does that mean they keep my passport (as they have now) for that time and what does that mean to my working status in the UK as my spouse visa expired 19 Feb 2016. 

We feel we have grounds for a appeal, but if this takes forever, is it worth it? 

2. Can we ask for my passport back and re-apply for the same visa? We know what information they need, we receive it with the end of this tax year April 2016. And, can I stay in the country if my application has been refused? Can I even re-apply? 


Any insight you have, will help.


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## nyclon (Apr 3, 2011)

I have merged your threads. You've already given a lot of background information which could be useful so please let's keep everything in one thread.


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## diverseyharbor (Mar 26, 2013)

Thanks, Nyclon.


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## nyclon (Apr 3, 2011)

Since your visa had expired you can't reapply from within the UK.


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## Whatshouldwedo (Sep 29, 2013)

nyclon said:


> Since your visa had expired you can't reapply from within the UK.


So if the visa has expired you have to apply from outside the UK. Which means you would have to start over again as FLRM has to be applied for from inside the UK?


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## Joppa (Sep 7, 2009)

Your choice is either to appeal within UK, or leave UK and make a fresh application from your home country. In that case you will be starting a new 5-year route to settlement. 

As for your appeal, as director of a specified limited company, you must submit the last completed financial year's account and tax papers, which you failed to do. You can submit those missing documents in your appeal, and it's just possible the decision may be reversed without going to the judge or tribunal, which can indeed take up to a year because of the backlog. It's usual for them to retain your passport if your visa has already expired, but if you are appealing, you can request the return of your passport, and your stay will be under Section 3D of Asylum and Nationality Act 2006 in order to make your stay legal while the appeal is in progress. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/509294/3C-3D-leave-v6.pdf


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## diverseyharbor (Mar 26, 2013)

We did turn in our last completed financial year, but the year that proves our financial requirement is in fact the year past 2015 which we are over and above requirement, but taxes aren't yet due. 

Home office said we failed to show evidence we are directors and paying tax through hmrc but again don't have company records from that yet (p60, etc) so we submitted end of year payslips showing tax that was deducted. We explained in cover letter that the financial year was not yet finished for the business. I think they still wanted to see a self assessment though.....



Joppa said:


> Your choice is either to appeal within UK, or leave UK and make a fresh application from your home country. In that case you will be starting a new 5-year route to settlement.
> 
> As for your appeal, as director of a specified limited company, you must submit the last completed financial year's account and tax papers, which you failed to do. You can submit those missing documents in your appeal, and it's just possible the decision may be reversed without going to the judge or tribunal, which can indeed take up to a year because of the backlog. It's usual for them to retain your passport if your visa has already expired, but if you are appealing, you can request the return of your passport, and your stay will be under Section 3D of Asylum and Nationality Act 2006 in order to make your stay legal while the appeal is in progress. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/509294/3C-3D-leave-v6.pdf


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## nyclon (Apr 3, 2011)

Do you mean that you didn't meet the financial requirement for the last full financial year?


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## diverseyharbor (Mar 26, 2013)

nyclon said:


> Do you mean that you didn't meet the financial requirement for the last full financial year?


The last full financial year we did, but the year just finished and we don't have the hmrc documents for that. So instead we submitted our payslips (showing taxes paid out), and we also submitted our companies last full financial year which we had. what seems to be what they needed was our own self assessments to show we are directors and paying tax though a hmrc document. With the timing of my visa expiration we have them everything we could. We are well over the requirement and is shown on payslips and bank statements. The timeline for business and personal just doesn't match.


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## Joppa (Sep 7, 2009)

When you submit your business account, your personal account should also be from the same period. Since you didn't comply with this rule, you were rejected.


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## diverseyharbor (Mar 26, 2013)

I know what you are saying, but the first time I applied (with much less money) our accounts didn't match up either and we wrote a letter to explain that the financial year was different and they accepted it. 

Even so, do you think we have grounds to appeal?


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## Joppa (Sep 7, 2009)

Your personal income must have arisen during the same period as your business account.


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## diverseyharbor (Mar 26, 2013)

Joppa said:


> Your personal income must have arisen during the same period as your business account.


It my letter from home office it says I can stay in the uk during appeal. You said I had to request it? 

Joppa, we submitted bank details for both years to support the financial info from company but also show this year's income.


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## Joppa (Sep 7, 2009)

To request the return of your passport I meant.
You need to specify how you meet the requirement, either under Cat F (over one year) or G (average over 2 years). Just sending income details isn't enough.


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## diverseyharbor (Mar 26, 2013)

Not sure what you mean, could you clarify? I can't request my passport back during the appeal? 

It said in my refusal that during the appeal I do not need to leave the country. And may stay in the country until the appeal is decided.


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## Joppa (Sep 7, 2009)

You can request the return of passport while your appeal is in progress, but it's best not to try to leave UK as you may face difficulty trying to get back in. 
Under Section 9 (self-employment), your business income and personal income must have arisen during the same 12-month accounting period. But as you are a director of specified limited company, your income can only be regarded as self-employment income, not employed.


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## diverseyharbor (Mar 26, 2013)

Yeah, I don't want to do anything that is going to prohibit me from getting back into the country. 

We are going to appeal. Filling out the paperwork today and request and oral hearing. Then wait it out. Prepared for it to take time. In the meantime I will gather all my documents in case I need to return home and start the process again.  I just hope with our evidence that is clear we can show them we have a thriving business, employ over 15 people and pay our taxes.


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## Joppa (Sep 7, 2009)

That's immaterial. You need to meet the specific rules under Section 9 of FM1.7 and no allowance is made for any deviation from what is laid down. Even if you have a profit of a million, if you don't meet the exact requirement as specified, they will turn you down.


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## diverseyharbor (Mar 26, 2013)

I agree, and I believe we do. It's just a hard pill to swallow is what I'm saying. I know they don't care what we do/do not do.




Joppa said:


> That's immaterial. You need to meet the specific rules under Section 9 of FM1.7 and no allowance is made for any deviation from what is laid down. Even if you have a profit of a million, if you don't meet the exact requirement as specified, they will turn you down.


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## Joppa (Sep 7, 2009)

I think you are just wasting your time. Reapply when you are in a position to meet the requirement in full.


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## melody.smms (Mar 30, 2016)

From my personal appeal experience, the first tier judge accepted the additional bank statement submitted to the judge and approved my appeal.
But home office appeal again to upper tribunal and upper tribunal judge(UTJ) rejected saying "additional papers were not submitted at the time of application and the case worker did right decision to my appeal."
The appeal can take up to years depending on situation. My appeal process has already been 3years now and still not ended yet. I appealed UTJ decision and it's now at court of appeal.


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## diverseyharbor (Mar 26, 2013)

Melody, Are they allowed to take that long? I thought it was a year max. Do they still have your passport or did you request it back? 

For all: Can you re-apply during the same time it's in appeals? I.e. If I request my passport back and go back home and apply from there if the appeals process takes too long.




melody.smms said:


> From my personal appeal experience, the first tier judge accepted the additional bank statement submitted to the judge and approved my appeal.
> But home office appeal again to upper tribunal and upper tribunal judge(UTJ) rejected saying "additional papers were not submitted at the time of application and the case worker did right decision to my appeal."
> The appeal can take up to years depending on situation. My appeal process has already been 3years now and still not ended yet. I appealed UTJ decision and it's now at court of appeal.


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## diverseyharbor (Mar 26, 2013)

Even if we think they overlooked some paperwork submitted? 



Joppa said:


> I think you are just wasting your time. Reapply when you are in a position to meet the requirement in full.


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## WestCoastCanadianGirl (Mar 17, 2012)

You should also keep in mind that the government is trying to curb net migration in any way that it can, so you can pretty much bet that they'll appeal any decision against them for as long as they can.

As an example of how long and drawn out this can be, take the very real argument over the £18.6k minimum income requirement that came out along with the rule changes a few years back (July 9, 2012)... that dispute has been ongoing and before the courts for a couple of years now (it's almost 4 years since the rules changed) and will likely remain there until all appeal options are exhausted.


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## diverseyharbor (Mar 26, 2013)

I see what you mean. When I got my spouse visa back 2.8 years ago we had just got in on that and had to apply with the £18,600. It was a nightmare. 

So here's a question, if I have to go home and reapply (I can get expedited like last time which is pretty quick) does my job here count anymore or do I again have to have a sponsor (my husband) and prove he makes enough to support me, even though we have our company together? 

Also during the appeals when I'm in the country can I work? It doesn't say in my refusal letter that I can't. 




WestCoastCanadianGirl said:


> You should also keep in mind that the government is trying to curb net migration in any way that it can, so you can pretty much bet that they'll appeal any decision against them for as long as they can.
> 
> As an example of how long and drawn out this can be, take the very real argument over the £18.6k minimum income requirement that came out along with the rule changes a few years back (July 9, 2012)... that dispute has been ongoing and before the courts for a couple of years now (it's almost 4 years since the rules changed) and will likely remain there until all appeal options are exhausted.


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## WestCoastCanadianGirl (Mar 17, 2012)

diverseyharbor said:


> Melody, Are they allowed to take that long? I thought it was a year max. Do they still have your passport or did you request it back?
> 
> For all: Can you re-apply during the same time it's in appeals? I.e. If I request my passport back and go back home and apply from there if the appeals process takes too long.


Yes, you are more than welcome to reapply during the appeals process... many people do, just because it's a lot quicker to fix the deficiencies in the failed application than to wait out the time that an appeal takes.

In regards to being "allowed to take that long," the Home Office can take as long as it wants and the 1 year bit is more of a guideline than a hard and fast rule... a year is really a short period of time when you consider that the US INS takes _years_ to process visa applications from citizens of certain countries... I remember when I was looking to get a K-1 visa to go to the US back in the mid 1990s, the guidance surrounding that visa indicated that they were just getting to applications from years back for a class of applicants who were looking to come to the USA, and even at that point in time (mid 1990s) I was looking at a wait of 6-9 months to get that K-1, even coming from a low risk country (Canada).


ETA: If you do re-apply, paying for priority won't get your application processed any faster than non-priority because of your FLR(M) refusal. Your application won't be any slower than what a non-priority application might take, but because of the refusal, further inquiries into your application will be made, which will cause delays, so on the Visa4UK site they state that priority isn't recommended if one has a refusal on record.


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## nyclon (Apr 3, 2011)

diverseyharbor said:


> I see what you mean. When I got my spouse visa back 2.8 years ago we had just got in on that and had to apply with the £18,600. It was a nightmare. So here's a question, if I have to go home and reapply (I can get expedited like last time which is pretty quick) does my job here count anymore or do I again have to have a sponsor (my husband) and prove he makes enough to support me, even though we have our company together? Also during the appeals when I'm in the country can I work? It doesn't say in my refusal letter that I can't.


No, your job won't count. The applicant's income can only be used if they are in the UK on visa which allows them to work. You will no longer be in the UK on a valid visa.


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## diverseyharbor (Mar 26, 2013)

But it isn't re-applying I guess, it would be starting over since my visa is now expired in the process. 

We have a trip scheduled to go back to the USA in June. I'm wondering if I request my passport back for that, and then apply from there and wait. But based on what you say, it won't be quick. 

As far as the appeal, we just sent in. My husband is optimistic, I'm not just based on the wait time.


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## melody.smms (Mar 30, 2016)

I can say one appeal takes 1 year. The first appeal took 1 year. I won. But Home office appeal against it to upper tribunal and it took 1 more year. They won and now I appealed again to higher court of appeal. That's why taking 3 years.
During appeal period, you are allowed to work as your working right on previous visa. 
I've been trying to find out and being told these 3 years, as my old visa had expired, I don't have right to launch fresh application again in U.K. And if I request my passport back, my appeal will be cancelled and I don't have right to stay in U.K anymore. 
If you leave the country, your settlement status will be back to the time you came to U.K. That's what I found out. It could be wrong. Others knowing proper law, please correct me if I'm wrong.


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## diverseyharbor (Mar 26, 2013)

Melody, So have you not left the UK for 3 years? Also, you won the first but they continue to appeal it to higher courts? Wow. 

If I have to wait, I wait. I'm also going to to go my local MP to see if they can help (doesn't hurt).


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## melody.smms (Mar 30, 2016)

Yeah. I haven't and it's not even sure it'll be approved finally.


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## diverseyharbor (Mar 26, 2013)

So what will you have to do if not approved?


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## melody.smms (Mar 30, 2016)

I'm preparing to apply another alternative. If you see this link, you'll see about my new application

http://www.expatforum.com/expats/showthread.php?p=9791801


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## diverseyharbor (Mar 26, 2013)

Best of luck! What a process!


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## diverseyharbor (Mar 26, 2013)

In the meantime I have contacted our local MP, submitted our appeal and sent the supporting documents again.


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