# Spouse visa refused under new rules



## Kuya (Mar 28, 2012)

Today is a day I thought would never come, my wife collected her application from VFS and had a visa refused letter. 

We applied under the new rules and under catergory B, I earn less than the £18,600 as a basic salary but get this topped up with bonuses and overtime. So over the last 2 years I have earned over £19k. I provided over a year worth of bank statements, pay slips and a P60..

But the ECO did not consider my overtime or bonuses

On to appeal we go


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## jsandi (Sep 25, 2012)

Omg really. So sorry to hear that. That's crazy that they don't take that into account when it clearly states they do!


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## Joppa (Sep 7, 2009)

Kuya said:


> Today is a day I thought would never come, my wife collected her application from VFS and had a visa refused letter.
> 
> We applied under the new rules and under catergory B, I earn less than the £18,600 as a basic salary but get this topped up with bonuses and overtime. So over the last 2 years I have earned over £19k. I provided over a year worth of bank statements, pay slips and a P60..
> 
> But the ECO did not consider my overtime or bonuses.


Please quote word-for-word what it says in the refusal letter.


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## Kuya (Mar 28, 2012)

Joppa said:


> Please quote word-for-word what it says in the refusal letter.


Here you go....



> Your sponsor is not exempt from the financial requirements as defined paragraph E-ECP.3.3. I am not able to to take into account any potential employment you have available to you in the UK or any offers of financial support from third parties. In order to meet the financial requirements of the rules your sponsor needs a gross income at least £18,600 per annum. From the evidence provided your sponsor's gross income from his employment with XXX is £17,715.00 per annum which is not sufficient to meet the financial requirements. Therefore in order to qualify, you and your sponsor will require £18,212.50 in savings in order to meet the financial requirements. You have provided evidence that your sponsor holds £856.99 in his Bank account and this was the closing balance of this account on 14th September 2012, however this amount is not sufficient to meet the financial requirements. You have submitted no other evidence to show you and your sponsor meet the financial requirements therefore I refuse your application under paragraph EC-P.1.1 (d) of appendix FM of the immigration rules. (E-ECP.3.1)


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## jsandi (Sep 25, 2012)

Did you include a letter from your employer staying that was base pay not taking into account overtime and commission? That's what thinking to do cause I've earnt nearly 5k in overtime and commission and was hoping that would work!


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## Kuya (Mar 28, 2012)

I sent a letter from my employer stating my basic salary and when I have earned that from, but I also sent over a years worth of pay slips and bank statements showing over £19k gross pay for the previous 12 months.

Just to note.. The last 2 payslips I have had since then show I have had over £5k in the months of October and November 2012. They have litterally excluded my overtime and bonuses


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## Joppa (Sep 7, 2009)

Kuya said:


> I sent a letter from my employer stating my basic salary and when I have earned that from, but I also sent over a years worth of pay slips and bank statements showing over £19k gross pay for the previous 12 months.
> 
> Just to note.. The last 2 payslips I have had since then show I have had over £5k in the months of October and November 2012. They have litterally excluded my overtime and bonuses.


Get a new letter of employment from your boss, stating clearly that in addition to your basic salary, you are entitled to commissions and bonuses. The lack of any mention of commissions and bonuses probably was the fatal error. Then, with each pay slip that shows commissions and bonuses, circle such amounts in pencil and attach a note explaining it. Enclose an Excel spreadsheet (or a table in Word) setting out in first column your basic pay for every month of the last 12 months, in second column any commissions earned and in the third column any bonuses received. Add them all up and show that during the period in question, you have earned at least £18,600.
Lodge your appeal with these additional documents. I think you have a very good chance.


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## Kuya (Mar 28, 2012)

Should I use the last 2 months payslips?


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## Joppa (Sep 7, 2009)

Kuya said:


> Should I use the last 2 months payslips?


Include them as well but your financial evidence still must relate to your original submission, as the appeal cannot consider any new evidence. Your appeal will only be upheld if the evidence you have already submitted, with new documentary proof, actually meets the requirement.


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## jsandi (Sep 25, 2012)

What I still don't get as I see Kuyas posts on another site is people are saying if you have been with employer for more then 6 months you can only use cat a instead of cat b for fluctuating monthly wages. To me it just seems ridiculous that you could quiet easily just get another job and even if its less then the 18600 so long as you make up the requirement it's ok. It just makes me feel so angry that if your unstable and can't hold a job you could be better off applying. It's ridiculous and ruins people's lives. I'm yet to apply and wish everyone the best of luck and support.


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## 2farapart (Aug 18, 2011)

We make the assumption that someone with the same employer, but whose income fluctuates monthly, can still apply under Category B. It has however only been our assumption, because there is no option for anyone working for one employer earning £18,600 overall (the aim of the rules) but some months earn less than others). Unfortunately, it is an assumption we can only arrive at by the available guidance, and until now no-one has tested the rules.

The clue I'm getting from the OP's post is that they earned over £18,600 a year across TWO years, but the rule examines only the last 12 months for Category B. If the last 12 months alone was not over £18,600 with commission etc, then it would have failed on that basis regardless of more being earnt in the previous year.


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## Kuya (Mar 28, 2012)

My last 12 months worth of payslips came to £20,707.23, but that includes two months not submitted. Prior to that it was easily above £19,000 (I am currently going through all of this whilst creating a spreadsheet for my income).

I plan to make an oral appeal so I can argue the case myself with the UKBA and if they refuse to budge even though I can prove my income meets the requirements then off to court we must go. Does anyone know how long it takes for an oral appeal to get seen to?


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## Joppa (Sep 7, 2009)

2farapart said:


> We make the assumption that someone with the same employer, but whose income fluctuates monthly, can still apply under Category B. It has however only been our assumption, because there is no option for anyone working for one employer earning £18,600 overall (the aim of the rules) but some months earn less than others). Unfortunately, it is an assumption we can only arrive at by the available guidance, and until now no-one has tested the rules.


Under the changes to be introduced next month (from 13th IIRC), the new wording is Category B is for those working less than 6 months with an employer or *working 6 months or more (but don't want to or can't apply under Category A)*:

_any period of salaried employment in the period of 12 months prior to the date of application if the applicant has been employed by their current employer for less than 6 months (*or at least 6 months but the person does not rely on paragraph 13(a) of this Appendix*), or in the financial year(s) relied upon by a self-employed person._

So this I hope clarifies the point made above.


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## Kuya (Mar 28, 2012)

Joppa said:


> Under the changes to be introduced next month (from 13th IIRC), the new wording is Category B is for those working less than 6 months with an employer or *working 6 months or more (but don't want to or can't apply under Category A)*:
> 
> _any period of salaried employment in the period of 12 months prior to the date of application if the applicant has been employed by their current employer for less than 6 months (*or at least 6 months but the person does not rely on paragraph 13(a) of this Appendix*), or in the financial year(s) relied upon by a self-employed person._
> 
> So this I hope clarifies the point made above.


Thanks Joppa.

From this I take it We've applied a couple of months too early and the ECO was working from lousy guidelines

I just hope the appeal comes soon! I plan to ask for an oral appeal so I can argue the case myself.


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## loulabell (Feb 28, 2013)

jsandi said:


> What I still don't get as I see Kuyas posts on another site is people are saying if you have been with employer for more then 6 months you can only use cat a instead of cat b for fluctuating monthly wages. To me it just seems ridiculous that you could quiet easily just get another job and even if its less then the 18600 so long as you make up the requirement it's ok. It just makes me feel so angry that if your unstable and can't hold a job you could be better off applying. It's ridiculous and ruins people's lives. I'm yet to apply and wish everyone the best of luck and support.



Hi, I came across this post and I was wondering if you have appealed and what stage your case is at?

Thanks

L


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## Kuya (Mar 28, 2012)

loulabell said:


> Hi, I came across this post and I was wondering if you have appealed and what stage your case is at?
> 
> Thanks
> 
> L


Apologies...

I've been so busy with things lately I've not been here.

I appealled pretty soon after our decision and sent off all of my payslips with circles marking the gross pay in each month. I then wrote a cover letter for the appeals pack, along with a new letter from my employer stating my current gross salary being about £21,000.00. I sent this off via courier on December 8 2012.

On January 15 2013 the Manila hub got our appeal pack as they had advised with an email after I asked them what was happening.

I had also taken the opportunity to fire off emails to the UKBA and Home Office in December asking questions under the freedom of information act, some of these had come back as of mid January and so I had what I thought was a winning argument.

For instance, I knew that in Manila there were 12 ECOs working and each one had an average of 55.30 visa applications to work on any given day, meaning an increase in their workload over just a few years back to be about 82% 

This plus another FOI request, where I specifically asked if potential sponsors earning over £18,600.00 but on a fluctuating salary that can fall below £1,500.00 on some months would qualify to sponsor a spouse, the response was vague and simply asked me to check the rules and linked me to the post December 13 rules which made it pretty obvious the answer was YES! But never at any point in their reply said no... A point I would later use to my benefit.

And so, armed with facts and figures I emailed the Manila hub on an almost daily basis making case arguments that their decision was wrong and making statements such as "I would look forward to having my day before a Judge, but I doubt your legal representative would contest such a lost cause", as they lacked responsiveness I then also turned my attention to the British Ambassador in the Philippines and within days of aiming my emails towards him I got an ECM to look at our appeal as well as my emails, overturning the decision in the process.

My wife is now with me here in the UK. She arrived last Wednesday after getting her visa allowed on 28 January 2013.

My advice is never just to bombard people in the hubs for a new decision, if you don't stand a chance before an appeals judge, you won't stand a chance with an ECM either. Their job is to reduce the successful appeals brought before the appeals court judges, so I used that knowledge to get things expedited. Do your research and work out your argument well in advance..

I have no doubt I would have won an appeal tribunal if it had come to it, but I figured it was in my interest to make sure the ECM thought so as well


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## loulabell (Feb 28, 2013)

Thats excellent news! Congrats. You sound like you know what your doing. Although I am not so knowledgable. I am quite worried.

Please check my thread:
http://www.expatforum.com/expats/br...se-visa-appeal-refused-financial-reasons.html

I have now prepared 12 months paylsips and bank statements from March 2012 until now.

I have no idea how to prepare for the appeal and what the process will be like on the day


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## loulabell (Feb 28, 2013)

Kuya said:


> Apologies...
> 
> I've been so busy with things lately I've not been here.
> 
> ...


So the decision was overturned before it went to court?


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## Kuya (Mar 28, 2012)

loulabell said:


> So the decision was overturned before it went to court?


Yes, by the Entry Clearance Manager!

I'm no expert, I just researched the things pertinent to my own case and in my emails to the UKBA made it seem like I knew as much as anyone in my case.

My biggest weapon was the knowledge that ECMs have to reduce successful appeals that go before a judge! If you can let them know that, plus carry forward a brilliant argument (through my findings I was arguing that the ECO had such little time to process our application they missed the obvious), you should win.


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## nyclon (Apr 3, 2011)

loulabell said:


> Thats excellent news! Congrats. You sound like you know what your doing. Although I am not so knowledgable. I am quite worried.
> 
> Please check my thread:
> http://www.expatforum.com/expats/br...se-visa-appeal-refused-financial-reasons.html
> ...


You can't send new evidence for an appeal. You applied under Category A which requires 6 month's worth of pay slips. Your best bet would be to reapply under Category B with 12 month's worth of pay slips adding up to £18,600/year or more or reapply under Category A if you now have 6 month's worth of pay slips all over £1550/month.


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## loulabell (Feb 28, 2013)

nyclon said:


> You can't send new evidence for an appeal. You applied under Category A which requires 6 month's worth of pay slips. Your best bet would be to reapply under Category B with 12 month's worth of pay slips adding up to £18,600/year or more or reapply under Category A if you now have 6 month's worth of pay slips all over £1550/month.


I cant do that, I just dont have the money to apply for a fresh application


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## nyclon (Apr 3, 2011)

loulabell said:


> I cant do that, I just dont have the money to apply for a fresh application


Then you should wait until you do. According to the information you have given in your thread, you do not have a basis for an appeal and as I said, you can't send new information. The additional pay slips which you received after your initial application can't and won't be considered in an appeal.


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