Marco, thanks for that. Very helpful. I know you will be fine with your appeal and prayers are going your way!! Did you find out if you can be reimbursed due to the extra cost of what you have due to the ECOs error?
Does anyone know what this witness statement thing for an appeal is all about? What is it? Does it need to be submitted with the appeal letter?
For anyone who needs to appeal I have simplied the whole thing for what you need to do.
How to appeal in laymans terms;
OK you want to appeal this is what you do.
1a)The applicant fills out the appeal form which is included in the package and post it to the appeals tribuneral in Leicester.
OR
b) Leave the appeal form blank and post it to a UK based Lawyer to fill it in and sign it on your behalf (you do not need to sign it if you choose this option, the lawyer/solicitor can do this on your behalf).
2) Write a defending statement, defending your application; in the letter you should write that you don’t understand how the ECO refused because you meet the requirements as evidenced by XYZ documents (here is where you take the ECO reasons and points out the documents that refutes the ECO decision and reasons). You sign it and post it to the appeals tribuneral in Leicester along with the filled in appeals form or your blank appeals form to your lawyer/solicitor acting on your behalf.
3) Alongside the Appeal letter and defending statement post everything the ECO sent back to you and the original letter from the ECO stating the refusal and why the application was refused straight to the court at Leicester or your UK BASED lawyer.
4) You send all the originals bundle (ie everything you gave to the ECO IN THE INITIAL APPLICATION + photocopies of the original bundle). But you do not send 'new' supporting documents or they will throw the appeal out saying you are submitting new documents and that constitutes a new application.
So check list of everything you send before your 28 days to appeal have run out to either your UK Based Lawyer/solicitor or directly to Leicester.
TO UK BASED LAWYER ALL IN SAME PACKAGE
- BLANK UNSIGNED APPEALS FORM
- DEFENDING STATEMENT
- ORIGINALS BUNDLE
- PHOTOCOPY OF ORIGINALS BUNDLE
- ANYTHING THE ECO GAVE BACK TO YOU INCLUDING REFUSAL LETTER
TO LEICESTER ALL IN SAME PACKAGE
- SIGNED AND FILLED IN APPEALS FORM
- DEFENDING STATEMENT
- ORGINALS BUNDLE
- PHOTOCOPY OF ORGINALS BUNDLE
- ANYTHING THE ECO GAVE BACK TO YOU INCLUDING REFUSAL LETTER
Now this is something I am not totally sure of, I have heard that New evidence to prove a fact in the original application is allowed. The evidence must have existed at the time the application was submitted and not have been submitted for one way or the other. In this regard, it is not interpreted as new. However, I would like clarification on if this is OK?
Marcos - it is important to always feel brave and never give up fighting - these are your rights, your wife's rights, and your lives at stake and being wrongfully interfered with by the state.
I have noticed a number of cases where the ECO makes a number of false accusations, and speaks lies, against the applicant, to 'load the case' against you - to falsely justify the malicious refusal.
You must tell your lawyer that clearly the ECO is lying, you DID provide the evidence, and the accusations such as not genuinely marrying, did not talk etc [or whatever it may be in each case], are false.
Any decision delivered on the grounds of a number of false accusations, lies, and 'ad hominem' attacks against you - is unjust. It is not genuinely following points of law or procedure in any form.
I am ashamed that a British institution, the UKBA, is behaving unprofessionally as we might expect in corrupt nations such as the Philippines, China, N Korea or such like. We are supposed to have rights backed by law and procedure, due process, fair appraisal and so on.
This is not happening - and your first and last argument and fight must be simple - the ECO is lying, and making false accusations, there is no proper procedure.
Sometimes the ECO seems to work from an emotional discontent, such as not personally liking the couple or marriage, or in your case - your wife leaving her child behind. But what law and interpretation of law is the ECO using here? We would need a lawyer to explain that - but from a political science perspective - this behaviour can only lead to forms of discretion that form malicious applications of the law.
These points I have made will apply to all cases and yours. However, in your case - leaving the child behind in the Philippines will always be to your disadvantage, as a judge will argue the child has rights, and the personal circumstances of you and your wife or no less relevant - but how this permits an ECO to prevent you from living together in the UK is something I don't know. On this point alone, you will need to have a very in depth discussion with a lawyer. Mention the lies and false accusations to the lawyer and instruct him to fight on these also of course!
Thanks Brinoren,
This is what my Lawyer has written in her letter to the ECO. What do you think?
Adequate maintenance until the date of the marriage is available from both the applicant and her partner. Our client’s current bank statement account number xxxxxxxxxxx indicates funds of £1,257. She also relies on a statement indicating her salary credits and a current salary of £320.59 per month. The money in her accounts is available to support her in the UK.
In addition our client relies on the funds available to her sponsor who is able to support her before their marriage. Our clients sponsors bank statement shows a balance of £3914.56 as of 14 May 2012. At the present rate of income support which is £111.45 per week for a couple our client and her partner have sufficient means to be supported without recourse to public funds for 46 weeks. In addition to this he has a balance of £3915.61 in his Cash ISA which indicates that our client can be supported for a total period of 81 weeks without recourse to other means of income.
Our clients partner is currently in receipt of contributions based Employment Support Allowance as he is presently unfit for work. He has provided evidence of his benefit and evidence of his medical conditions which evidence the reason for receipt of this benefit. The benefit is not a public fund for the purposes of the Immigration Rules under S 6 and therefore reliance on this benefit is permissible and can not lead to a refusal of leave to enter. The current rate of benefit payable to him is £105 per week which taken together which his current savings indicates clearly indicates that he is able to support our client without additional recourse to public funds both before and after the marriage .
I don't recommend that on point 2, you say on appeal you don't understand why the ECO refused. If you do this - they, as 'professionals', can countervene you by claiming that they have made full appraisal and if you need help understanding it, a lawyer or CAB advisor should talk you through it.
If you argue you DO understand how the ECO refused you, you can argue you understand why the ECO is wrong - and you are starting from a stronger argument and can build a better case with your lawyer.
This is good yellowcloud. Although where possible, 'support indefinitely', if it can be reasonably proven, supersedes 'support for xx weeks'.
Your ESA is not a public fund also because it is a means to faciliate you to live normally, so beyond Immigration Rules, you have an inalieable right to use this money as you see fit to live a 'normal life', which includes getting married [and you can't be refused the right to marry under International human rights convention simply because you are disabled - as no individual can be told by the state when they can or cannot marry and start a family, nor can the state lawfully hinder you from doing so - ESA helps not hinders therefore... You get the idea I'm sure! A lawyer will regard this as a politico-legal argument and not a purely legal one, but it still applies in law].
So go ahead and roll the dice if you got your housing issue sorted.
Yes, we have rolled the dice back in June and still waiting. We sorted out the accomdation, that is a strong area for us as we have no rent to pay and will be staying with my parents for as long as we need too (submitted all that evidence) we didnt get 3rd party financial support from anyone though.This is good yellowcloud. Although where possible, 'support indefinitely', if it can be reasonably proven, supersedes 'support for xx weeks'.
Your ESA is not a public fund also because it is a means to faciliate you to live normally, so beyond Immigration Rules, you have an inalieable right to use this money as you see fit to live a 'normal life', which includes getting married [and you can't be refused the right to marry under International human rights convention simply because you are disabled - as no individual can be told by the state when they can or cannot marry and start a family, nor can the state lawfully hinder you from doing so - ESA helps not hinders therefore... You get the idea I'm sure! A lawyer will regard this as a politico-legal argument and not a purely legal one, but it still applies in law].
So go ahead and roll the dice if you got your housing issue sorted.
So in your opinion on maintenance aspect do you think we should be OK?
Interesting slant, Brian Noreen and one I haven't seen before but have erred towards in my mind. ( In the past, I haven't thought of it so much in terms of lieing to load the case and have tended towards thoughts more along the lines of ECO incompetence. ) But since you mention it, it seems to make some sense.Originally Posted by BriaNoreen
In terms of Marco's case, I wonder why they (the UKBA) continue to pursue their side of the case, knowing that they have "lied" in this way. Maybe its because they think, erroneously, that Marco will give up or maybe they believe that (hopefully erroneously too) Marco won't be able to prove them wrong.....
i doubt many ECO's are liars, if it goes to appeal then a judge would also see these lies, but on average only 1/3rd of appeals are won.
you have to minimize your risks of refusal before you submit your application, and if they say you didn't supply certain evidence, make an index that clearly states what evidence you've supplied and the page number.
This is the methodology that most immigration advisors adopt.
Even to the extent of indicating the specific immigration rule complied with.
I'm not necessarilly sure that the correct approach when going to court would be to say they lied. It's more their incorrect interpretation of the application and also the fact that they missed things in the supporting documentation.
My lawyer even asked me the other day did we actually send photographs with the application because she found it strange that on 2 occassions they have stated that we never supplied photographs.
I took our original application over to her which included 28 photographs stuck in twos on A4 paper with writtten explanations of where when and who were in them. I also said that I found it even stranger that they have said on 2 occassions they havent seen my passport and yet they supplied a copy of it with the appeal papers.
D day is getting closer now so just hoping for a good performance from the lawyer and a Judgewho takes his time and studies the application.
The bottom line is I really wouldn't have appealed if I didn't think they got it wrong. Between the cost of appealing and my solicitors cost it comes to quite a bit more than simply submitting another application.
evidence probably does get lost, with the 100s if not 1000s of apps a month, no excuse for them losing it, but if people had made an index page which listed all your evidence, then you would have thought they would contact you and say we cant find this or that, can you send another copy instead of refusing the application.
when my misses applied for FLR, we sent it all in a nice folder, we didnt get the folder backalso i know of one case where they told the lady applying for the visa to take every document out of the plastic wallets inside the folder - no wonder documents get lost
good luck again Marco
I always felt that they might have scanned every incoming application first thing as it comes through the door. Part of the reason for charging so much. Maybe they dont but it would be a way of ensuring that material doesnt get lost or even mislaid within their own building or if it does get lost then there are copies to refer to. And what about the duplicate set? What do they do with that? I always thought the duplicate set was a backup against losing application papers.....
So if they had your photos in duplicate, if they lost one set of photos then they would have had the copies to refer to. But like you say, they returned the photos to you. How bizarre.....
Our application included an index / list of contents.
I still think admin error / negligence and are maybe trying to hide it.
We also included a list of contents of receipts. And a list of contents of YM chat logs (by date).
from the time you hand in your app to an ECO looking at it, its probably been passed to more than one person, more than one office or building and certain pages have been taken out to be scanned or photocopied.
maybe they should staple or tie each page together when you submit it so its more difficult to lose any pages.
We deal with peoples valuable papers here at work and we use ye old treasury tags to keep them together in a wad. Simple but effective. But we have electronic (scanned) copies as backup. But we regard the originators as valuable customers. If we didn't take care it would be all too easy to lose sections or mix them up.
hi yellowcloud
NEW EVIDENCE which postdates the decision cannot be considered by the ECM but an ADDITIONAL DOCUMENTS relating to the initial application it should be taken into an account by the ECM. http://www.ukba.homeoffice.gov.uk/po.../ecg/apl/apl7/
Heard from the Lawyer today. She thinks we have a very strong appeal and we should be very positive about it. Not counting my chickens but it was good to hear.
Fingers crossed Marco
I hope everything goes well for you marco.
Cheers Lads nervous times as the day approaches
Great news Marco!!!
Has the Appeal been sent to the ECM yet to review as it may not need to goto appeals court!
If it has but no luck from the ECM and its going to appeal, which appeal court is your hearing going to be held? London?
Who did you end up choosing for your lawyer?
No ECM upheld refusal. Appeal tribunal in London next week. I have hired Victoria Sharkey to act for us and she's saying we have a good case in her opinion.
Good call!!
Let us know how you get on!! You might get a decision on the day or you may have to wait.
i asked something ... did your wife seperate all your documents from her documents when she passed her application ?its confusing
Richard, do you mean for the initial application? or for appeal?
her initial application ...
i got refused visa also for a wrong decision of ECO about our financial requirements
Well you put all the evidence together ie bank statements, letters etc in one bundle and make a photo copy of the whole bundle and keep it separate and then make another copy of everything for yourself and at the appointment hand in the originals bundle and the copies bundle but keep one of the copies bundle for yourself. Dont use plastic wallets or anything and stick the photos onto a piece of paper with prit stick. Does that make sense?
Do you know there is a new rule now about having to make £18,600?
Why? what happened? Is this Richard or his wife here speaking?i got refused visa also for a wrong decision of ECO about our financial requirements
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