Post-Decision Evidence for Appeal (maintenance of funds)

[bananafish]

Hello all,

I have posted in another topic but did not get much response. (http://www.immigrationboards.com/viewtopic.php?t=36989)

I got a rejection under the PSW thing for not having the £800 for the entire duration.

My visa was expiring on the 31st of Jan. Technically I should have had at least £800 since 30th October. But unfortunately the money came into my account on the 4th of November. This means there is an intial 4-5 days shortage. However, since the 4th of November till today I have more than the required £800 in my account.

I applied on the 31st Jan and wanted to send my continuing bank statements so that they would cover 4th of Febuary...but unfortunately it got delayed and a decision had been reached before they could consider the additional statements I sent them.

Now I am going to appeal. Being a student of law, I digged up some stuff which I would like to share. If you wish to read what I find you can click on the link below:

http://imgur.com/9UX5E.jpg

When appealing my decision my grounds are going to be as follows:

1. Discretion under the Immigration Rules should be exercised differently.

2. I have a clear record and finished my undergraduate degree on time as well as my Masters (based on which I am applying for the PSW)

3. I have never taken recourse to any public funds.

4. Since 4th of November to date I have the required amount in my account therefore fulfilling the requirement.

5. My continuing bank statements which I sent after my application were not considered when making the decision.

6. I would like to tribunal to consider these bank statements as part of evidence of maintanence of funds.

7. The link I posted above is evidence that the tribunal may consider may consider this evidence not from the date of decision but from the date of the hearing. This basically is taken where under a separate immigration rule a leave to remain application had been refused because the applicant had not reached the required age of 65 years. However, by the time an appeal was launched and the hearing took place, the applicant had become over 65 years therefore satisfying the requirement. You guys can check out the link to see what I am trying to say.

So now. Do you guys think this is a successful grounds of appeal? Is there anything I should add or not say?

Any opinions will be appreciated. Thanks a lot.

[koolbone]

Quite impressive grounds considering your situation. I think you stand a good chance with a lenient and considerate Judge to win your appeal. All the best.

[PaperPusher]

Hello

This is a question to everyone really. Has anyone won an appeal when they have been refused because they did not maintain £800 for 3 months at the time of application, and this is actually the case, they did not maintain £800.

[pure_soul]

Yes u actually do have a strong case. And there is a good chance u can pull this off since u have the required funds for the specified period mentioned in the guidance and that satisfies the maintainance funds requirement for this category if u r lucky to get a nice judge...

However,
i would like to know the exact dates
1. when home office called u??
2. what date did you sent them the bank statements later?
3. what was the date on the refusal letter?
4. and what date did you receive the refusal in post?

we might be able to help you out a little more
Cheers

[bananafish]

Yes u actually do have a strong case. And there is a good chance u can pull this off since u have the required funds for the specified period mentioned in the guidance and that satisfies the maintainance funds requirement for this category if u r lucky to get a nice judge...

However,
i would like to know the exact dates
1. when home office called u??
2. what date did you sent them the bank statements later?
3. what was the date on the refusal letter?
4. and what date did you receive the refusal in post?

we might be able to help you out a little more
Cheers

Hello. Thanks for replying.

pure_soul, do you really think it will still depend on the whether or not the judge is sympathetic to my case? I am citing authentic legal sources...it is from a practitioner's text and he is bound to follow this ruling. Anyhow, I suppose in a way you are correct. If he is in a bad mood then I guess he can refuse...since I am only requesting them to exercise discretionary powers.

Now in response to your questions:

1. The home office called me after I had sent them a letter on 31st Feb asking if I should send them my continuing bank statements. I received the phonecall on 2nd of March.

2. Due to the bank's error [I made the bank manager make a note acknowledging that the delay was due to the bank's error] my bank statements were sent late...and I ended up sending them the additional continuing statement on the 10th of March. I sent it by recorded delivery so this means it probably reached them by the 11th of March. I have the Post Office reciept as evidence.

3. The date on the refusal letter is 17th of March.

4. I recieved the refusal in the post on the 20th of March.

Yeah. So this is it. Any feedback? Thanks.

[pure_soul]

Hello. Thanks for replying.

pure_soul, do you really think it will still depend on the whether or not the judge is sympathetic to my case? I am citing authentic legal sources...it is from a practitioner's text and he is bound to follow this ruling. Anyhow, I suppose in a way you are correct. If he is in a bad mood then I guess he can refuse...since I am only requesting them to exercise discretionary powers.

Now in response to your questions:

1. The home office called me after I had sent them a letter on 31st Feb asking if I should send them my continuing bank statements. I received the phonecall on 2nd of March.

2. Due to the bank's error [I made the bank manager make a note acknowledging that the delay was due to the bank's error] my bank statements were sent late...and I ended up sending them the additional continuing statement on the 10th of March. I sent it by recorded delivery so this means it probably reached them by the 11th of March. I have the Post Office reciept as evidence.

3. The date on the refusal letter is 17th of March.

4. I recieved the refusal in the post on the 20th of March.

Yeah. So this is it. Any feedback? Thanks.

Did they give you a dead line to send your bank statements when they called you? If not then you could say to the judge that you sent the bank statements within 10 days and even that short delay wasn't your own fault. And you did not have control over this.

The most important point for me is that the date on the refusal letter is 7 days after you sent them new bank statements. This is a very valid point that the decision was being made without considering the new statements even when they had the statements 7 days before the refusal letter. So if they had made their decision before the bank statements had got through to them then how come the refusal letter says a date 7 days after the statements got to them????? If the decision had already been made then why didnot they sent the refusal straight away in next 2 working days. What were they thinking about or why wait for 7 days to print a letter?

Hope this helps. Just raise the point that the refusal letter was 7 days after the statements got to them and also they themselves said unfortunately your bank statements were late when they were not.

Hope this helps

[bananafish]

Hello. Thanks for replying.

pure_soul, do you really think it will still depend on the whether or not the judge is sympathetic to my case? I am citing authentic legal sources...it is from a practitioner's text and he is bound to follow this ruling. Anyhow, I suppose in a way you are correct. If he is in a bad mood then I guess he can refuse...since I am only requesting them to exercise discretionary powers.

Now in response to your questions:

1. The home office called me after I had sent them a letter on 31st Feb asking if I should send them my continuing bank statements. I received the phonecall on 2nd of March.

2. Due to the bank's error [I made the bank manager make a note acknowledging that the delay was due to the bank's error] my bank statements were sent late...and I ended up sending them the additional continuing statement on the 10th of March. I sent it by recorded delivery so this means it probably reached them by the 11th of March. I have the Post Office reciept as evidence.

3. The date on the refusal letter is 17th of March.

4. I recieved the refusal in the post on the 20th of March.

Yeah. So this is it. Any feedback? Thanks.

Did they give you a dead line to send your bank statements when they called you? If not then you could say to the judge that you sent the bank statements within 10 days and even that short delay wasn't your own fault. And you did not have control over this.

The most important point for me is that the date on the refusal letter is 7 days after you sent them new bank statements. This is a very valid point that the decision was being made without considering the new statements even when they had the statements 7 days before the refusal letter. So if they had made their decision before the bank statements had got through to them then how come the refusal letter says a date 7 days after the statements got to them????? If the decision had already been made then why didnot they sent the refusal straight away in next 2 working days. What were they thinking about or why wait for 7 days to print a letter?

Hope this helps. Just raise the point that the refusal letter was 7 days after the statements got to them and also they themselves said unfortunately your bank statements were late when they were not.

Hope this helps

Yeah thanks a lot for your reply.

No they did not give me a deadline to send in the bank statements. I actually got a call from someone in the Durham office....he was not the case-worker...he told me my passport has already gone to a case-worker in the Sheffield Office. I should have taken his name or something but he called at bloody 09:30 in the morning and he woke me up. So I was groggy with sleep at the time. Anyway. But he was the one who gave me my 'Case Reference' number which I could not have known otherwise.

Yes, the point about the 7 days delay is valid. I will mention it.

Also dude...is there any particular format I should write my grounds of appeal in? Like in numbered points? I should probably attach a separate page right? Instead of writing it in that little space?

[pure_soul]

Yeah thanks a lot for your reply.

No they did not give me a deadline to send in the bank statements. I actually got a call from someone in the Durham office....he was not the case-worker...he told me my passport has already gone to a case-worker in the Sheffield Office. I should have taken his name or something but he called at bloody 09:30 in the morning and he woke me up. So I was groggy with sleep at the time. Anyway. But he was the one who gave me my 'Case Reference' number which I could not have known otherwise.

Yes, the point about the 7 days delay is valid. I will mention it.

Also dude...is there any particular format I should write my grounds of appeal in? Like in numbered points? I should probably attach a separate page right? Instead of writing it in that little space?

Numbered.
Write as many grounds as you can. Then make them concise and coherent. Dont repeat any points.

[bananafish]

Did you just mean to quote me there?

[PaulJohnAndCo]

As per the rules you will not qualify on the evidence you supplied. But being a student with temporary residence in UK , you can rely on any savings or funds you have overseas including term deposits and bank statements.

Also in a case a judge has ruled that the amount of money available in the form of overdraft if you have any, can also be taken into account as avaiable funds as per the rules.

So if you have evidence of this sort there is a good chance with regard to your appeal process as you can submit post decision evidence as per the existing rules which is in force now.

Regards

Paul John

[bananafish]

As per the rules you will not qualify on the evidence you supplied. But being a student with temporary residence in UK , you can rely on any savings or funds you have overseas including term deposits and bank statements.

Also in a case a judge has ruled that the amount of money available in the form of overdraft if you have any, can also be taken into account as avaiable funds as per the rules.

So if you have evidence of this sort there is a good chance with regard to your appeal process as you can submit post decision evidence as per the existing rules which is in force now.

Regards

Paul John

Paul, thanks for your reply.

I don't have any funds in any other account neither in the UK nor abroad. All I have is more than £800 in my account since the 4th of November till today.

Will the judge not consider this based on the extract from MacDonald's Immigration Law and Practice?

Could you kindly point out to me the rules which state I don't qualify based on what you can read here: http://imgur.com/9UX5E.jpg

Thank you for your reply. I need to submit this as soon as possible now.

I basically have 2 options IMO since I am only asking them to exercise discretion.

1. I can simply request them to reconsider the decision...

2. I can request them to reconsider the decision and provide them with this extract and request them to consider my current bank statements.

What do you advise?

[PaulJohnAndCo]

Dear Friend,

Inorder to qualify for the PSW you should have £800 in your account for 3 months prior to the application. You only had £800 since 4th November 2008 and you applied on 31st January 2009. So at the time of the application you do not qualify for the visa. and accordingly the Home Office refused the application. You could have posted your bank statements to the HO after 4th February 2009 and could have asked the Home Office to take it into consideration while a decision is made exercising their discretion. This has not happened in your case.

The immigration Judge can only make a finding in an appeal that the Home Office could have exercised their discretion in a case. If the applicant does not qualifies under the rules an immigration judge cannot subsitute a decision exercising his discretionary powers and award you points in that category.

Imagine a case where you had £800 in your account since 30th October but couldnt submit the bank statements as of 30th January and you submitted the bank statements until 25th January. In that case of refusal you can submit your bank account until 30th January 2009 in appeal and the Immigration Judge can takeinto account that as a post decision evidence and award you the points in the category. If you cannot satisfy the rules then resting your case only on discretionary exercise of powers is not a wise action.

You can submit a fresh application to the Home Office and normally the Home Office can exercise their discretion and grant you the visa.

[bananafish]

Dear Paul,

What you are saying makes sense to me. But since I have no other alternative, I think I am still going to use it.

You know what they say...'when you ain't got nothin', you got nothin' to lose.'

Worse comes to worse...my visa appeal gets refused..I get extra time to wrap up things in this country...and go back home to my family. How bad can that be eh?

But....again relying on the post-decision evidence thing...it says that the appellate process is an extension of the decision making process. Evidence that was unforeseeable at the time of decision can now found a successful appeal.

Obviously, bear in mind, I am asking for them to exercise some discretion. The decision made by the case-worker was correct at the time. But if the judge is kind enough to consider my current bank statements as well, I might have a chance.

I would make a fresh application but my visa expired on the 31st of Jan. So from what I understand I don't have that option.

Thank you so much for your input and advice.

Do you have any suggestions as to what I can do other than this?

[RippedOff]

Dear Friend,

Inorder to qualify for the PSW you should have £800 in your account for 3 months prior to the application. You only had £800 since 4th November 2008 and you applied on 31st January 2009. So at the time of the application you do not qualify for the visa. and accordingly the Home Office refused the application. You could have posted your bank statements to the HO after 4th February 2009 and could have asked the Home Office to take it into consideration while a decision is made exercising their discretion. This has not happened in your case.

The immigration Judge can only make a finding in an appeal that the Home Office could have exercised their discretion in a case. If the applicant does not qualifies under the rules an immigration judge cannot subsitute a decision exercising his discretionary powers and award you points in that category.

Imagine a case where you had £800 in your account since 30th October but couldnt submit the bank statements as of 30th January and you submitted the bank statements until 25th January. In that case of refusal you can submit your bank account until 30th January 2009 in appeal and the Immigration Judge can takeinto account that as a post decision evidence and award you the points in the category. If you cannot satisfy the rules then resting your case only on discretionary exercise of powers is not a wise action.

You can submit a fresh application to the Home Office and normally the Home Office can exercise their discretion and grant you the visa.

What about someone who made another application after refusal, but the form was inexplicably returned as invalid even though I know for a fact that I used the correct form? What am I supposed to do now? They gave me a right of appeal on the first application. I reapplied then appealed. Now the Home Office has returned the second application invalid, and have expressed that I cannot apply again - and have to go to the appeal court! Isn't the second attempted application admissible as evidence??? I met the stupid requirement way back in January while my application was being processed, but as they refuse to consider new evidence, I have nothing left but the appeal(and from what you are saying there is no hope of the judge accepting new evidence) This was a simple IGS to PSW transition which has turned into a complete fiasco. Does being on IGS count for nothing anymore? So does that mean that I will essentially lose out on a year because the Home Office/Tribunal will refuse to look at the fact that I have fulfilled all the requirements even before I got the Notice of Appeal? This transition cannot be done in my Home Country! My IGS expired early January, by the time of my appeal four months will have gone - meaning I am struggling for only 8 months of leave! Are you saying the judge cannot use his discretion in this unfortunate chain of events?

[PaulJohnAndCo]

Dear friend ripped off,

The second application was send back to you as invalid as the appeal was pending. You cannot make a new application while the appeal is pending. I dont know anything regarding the facts of your initial refusal, so i m not in a position to comment on the appeal. As i said earlier if you have money in your overseas accounts at the time of the initial application judges are willing to accept that as available funds.

[RippedOff]

Dear friend ripped off,

The second application was send back to you as invalid as the appeal was pending. You cannot make a new application while the appeal is pending. I dont know anything regarding the facts of your initial refusal, so i m not in a position to comment on the appeal. As i said earlier if you have money in your overseas accounts at the time of the initial application judges are willing to accept that as available funds.

No I don't have an overseas account. I was rejected because my balance was a little below £800 at the beginning of the so-called 3 month period, when I wasn't even in the country! My argument will be the IGS to PSW transition should have been automatic. They have applied retrospective changes to people who would have qualified otherwise...£800 is a bloody joke, that's only a little more than the rent I pay on my flat! So I'm not "maintaining" myself by doing this? Every lawyer I go to keeps banging on about having an "overseas" account and never looks at the merits. I think I will argue this on my own.

[THENDIST]

Also in a case a judge has ruled that the amount of money available in the form of overdraft if you have any, can also be taken into account as avaiable funds as per the rules.

Regards

Paul John[/quote]

Hi Paul John - you mentioned about this case about a judge ruling that overdraft is admissible - can you let me have more details as i could quote it to my lawyer who is unaware of this. I have an Tier I appeal for a rejection due to inadequate maintenance funds ( i have enough funds but all the documents were not available to teh home office at the time of the decision) I have a generous overdraft on the account that they have rejected and if the case is as you say then the home office will have to reconsider.
thanks

[jack199]

NO... You can not use the overdraft money to show as your balance. I have read it on the HO website. They will not accept this, The money has to be in your account apart from overdraft. Check the HO website.

[khan11]

Dear friend ripped off,

The second application was send back to you as invalid as the appeal was pending. You cannot make a new application while the appeal is pending. I dont know anything regarding the facts of your initial refusal, so i m not in a position to comment on the appeal. As i said earlier if you have money in your overseas accounts at the time of the initial application judges are willing to accept that as available funds.

Paul what if appeal has been refused and you are given 7 days to leave the country. Can you re-apply then from here or you must go back home and apply?
There isn't any law which states you cannot apply when you are given 7 days to leave the country because your stay is still legal.

The answer can become a hope for several people.

Thanks

[THENDIST]

khan11 - as i understand it - you are given 28 days to leave the country if your appeal is unsuccessful. And yes there is no rule saying that you cannot apply; however the guidance for application say that you need to have leave to remain to apply. Hope this helps!