Settlement visa refused - Appeal or Fresh application?

[hm7]

Hello everyone.
Me and my wife are married in February 2017 and we submitted Settlement (spouse visa) biometrics on 28 Feb. 2017. Unfortunately, my wife's visa application has been refused this week on the following refusal grounds.

------ Reasons for Refusal (letter details) --------

Eligibility

Under paragraph EC-P.1.1.(d) you do not meet all of the eligibility requirements of Section E-ECP of Appendix FM for the following reasons:

Eligibility Relationship Requirement

You do not meet the eligibility relationship requirement of paragraphs E-ECP .2.1. to 2.10. because:

In assessing your application and determining whether you are in a genuine and subsisting relation with your sponsor I have taken account of the information provided in your application form and the supporting documents that you have chosen to submit.

You state at question 1.21 of form APPENDIX 2 (VAF 4A DECEMBER 2013) that your sponsor was previously married to XXXXXX DD/MM/YYYY. I am aware from official records held by this office that Ms. XXXXXX was granted a dependent's visa (NEDE/000000) to join your sponsor and that she remains domiciled in the UK. You have submitted a translation of what purports to be a Divorce Notice Form dated the District Judge, [city, India] on dd/mm/yyyy.

The only valid way of divorcing in the United Kingdom and Islands is by obtaining on application a decree from a civil court. A decree nisi is the court's decision to grant a divorce provided that nothing comes to light which may alter that decision within the period of time specified on the certificate. If nothing comes to light, a decree absolute is then issued. A decree absolute is the only acceptable evidence of divorce.

Based on the information you have provided and Home Office records I am satisfied that your sponsor's previous spouse remains in the UK and that no valid divorce decree has been submitted. In the absence of UK decree absolute, I am not satisfied that your sponsor's first marriage has been legally dissolved or that your sponsor's first wife is no longer in the UK.

For the reasons detailed above, I am not satisfied that you meet all of the requirements of Appendix FM EC-P1. I therefore refuse your application under Paragraph EC-P.1.1 (d) of Appendix FM of the Immigration Rules.

Eligibility Financial Requirement

You do not meet the eligibility financial requirement of paragraphs E-ECP.3.1. to 3.4. because:

Your sponsor is not exempt from the financial requirements as defined paragraph E-ECP.3.3. In order to meet the financial requirements of the Rules your sponsor needs a gross income of at least £18,600 per annum.

Your sponsor claims to be employed by XXXXX Consulting Services with an annual gross income of £44,257.

I am aware from checks with HMRC that the Real Time Information (RTI) for your sponsor in 2016/17 that your sponsor earned a gross total of £12,000.

I am aware from checks with HMRC that the Real Time Information (RTI) for your sponsor in 2017/18 that your sponsor was paid a gross total of £1,000 on 28/04/2017.

Given the above facts, in respect of your sponsor's salaried employment in the UK, we have been unable to verify your sponsor's employment and income is as you have claimed.

For the reasons stated I am not satisfied that your sponsor has been paid throughout the period of 6 months prior to the date of application at a level of gross annual salary which equals or exceeds the level relied upon in paragraph 13(a)(i).

I therefore 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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Clarifications from my end on the above points:

On the first rejection point - Relationship Requirements, I need your advice on two points as follows:

1) UK divorce decree: I had submitted my original Divorce Decree issued by the Court in India, as my divorce was filed and concluded in India. We never filed for any divorce in the UK, as my ex-wife left UK immediately after our relation broke. I was married to my ex in India and accordingly, we filed for divorce in India - I am really not able to understand why having a UK civil court decree has been made a reason for rejection.

2) My ex-wife visa was valid from 2012-15, however after our relation broke she left the UK in 2013. I even updated home office at some point about this but looks like it's not been updated at their end. I am not sure if this is something I need to provide from my end that my ex has left UK at that time if I have to then what kind of proofs I can submit now to prove this? I have her last flight when she left UK (but that can be subject to various questions that she may or may not have boarded the flight, etc). Moreover, UK airport never stamps your passport when you leave the UK. Pls advice what to do on this.

On the second rejection point - Financial requirements:

1) I work as a limited company director and take my total income as 'Salary' & Dividend, out of which salary is the minimum amount and rest dividend. I had submitted all the following proofs to confirm my total income:

- Payslips & Dividend vouchers.
- Accountant's letter confirming the Salary + dividend incomes.
- Business & personal bank statement to confirm transactions.
- HMRC Yearly Tax Calculations online print out - reflecting both salary & dividend figures.

but looks like caseworker has not considered or checked my dividend income properly and just evaluated based on the Salary income, which is of course less than the minimum req.

2) The caseworker also mentioned about performing checks with HMRC that the Real Time Information (RTI) to check gross total income - Is there a chance that this tool may have only highlighted my salary income and no dividend?

I have submitted my last 2 years accounts as well which also clearly shows the dividend income I had withdrawn. I also submitted my business statements for last 2 years and even till today my business bank account has funds 10 times of minimum salary req. and I being the only director, its still clear that I do have enough funds, But looks like caseworker didn't consider anything keeping in mind that I am a limited company director and I can have income from other sources also than just monthly salary.

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Questions:
- Considering my situation, what should be the best course of action next - Appeal on refusal or file a fresh application? (I am very clear that I am not wrong on any of the points above, and can prove both of these wrong, but the question here is 'time & effort' worth spending on which one?
- How much time the Appeal process takes?
- Will it look negative on me, if I file a new application instead of Appealing the current decision?

Thanks for reading!

[frazy325]

I think You can fight the financial objection. Because it seems ECO is uneducated to assess your income and he did not exercise the proper policy guidance in your financial income whereas it is clear on the Appendix FM1.7.

Relationship reason is a bit tricky. I am unaware of the rules of the divorce in UK.

[hm7]

Hi frazy325,

Thanks for your reply. Yes, I feel the same, caseworker is not knowledge enough to see my Financial req. I am certainly going to fight it out.

Do you know by any chance how much time it takes/taking to complete the appeal process?

Thanks.

[frazy325]

I am not sure how long will the appeal take. but looking at some of the Post it take up to 1 Year unfortunately.

[Casa]

I am not sure how long will the appeal take. but looking at some of the Post it take up to 1 Year unfortunately.

12 months of even longer at present.

[hm7]

Thanks, frazy325 and Casa.

Someone told me that once you have filed an Appeal it goes to the ECO first to reconsider the decision (which can take up to 3-4 months) and then ECO can either change its decision based on your appeal information or stick to the same refusal decision and go ahead with Appeal hearing in the court (which takes around 8-9 months roughly at the moment)... and both of these steps brings the overall timing to 12 months or more.

Am I correct in my above understanding?

[frazy325]

Yes,
I have heard the same thing. They give 15 weeks to Home Office first.