Hello Alex Again
The advised given from the 2nd lawyer is absolutely the correct one – you will have to prove the money is coming from you but even most importantly the case for compassionate and exceptional circumstance. By the way I am not a lawyer but having experience the same thing and having done some throughout research in this area over recent months I believe this MUST be the case and will be if you go to an appeal hearing.
It’s very difficult to prove compassionate and exceptional circumstance, its very subjective and the immigration rules does nothing to clarify this for us in any way. There is nothing to say what constitutes exceptional/compassionate but common sense would tell it’s at the very extreme end – poor health, illness, isolation, poverty (though you don’t need to be poor – the link below will show this). Many people would say to you (as I have been told this before on many occasions) no one under 65 gets this visa, it’s very difficult and it is very very hard but I don’t think its impossible if you have a genuine case – otherwise the rules would be flaws.
My mum was ill, and there was absolutely no one there to look after her. Like you we all reside here in the UK for many years now. She lived in Jamaica all on her own for all these years, and its only when she became ill with a 2nd cancer diagnosis I started the process to get her closer to us as it’s very difficult to provide the support so far away.
When I started the process I never read anything prior to this apart from the immigration rules. Though I knew she was under 65 I did also believe her case was exceptional and compassionate. However I always believe in don’t say or give more information than you’ve been asked and so I only had a very brief summary of her illness submitted with the application doc. In addition the doctor letter was far more optimistic than her situation truly was but it was down to her remarkable recovery but that’s still beside the fact she is ill..
Like you I got the same explanation in the refusal letter. It will always be the case if they are under 65. My mum is only 51, but this is one of those occasion where age is just a number as she is at times more frailer than my 66 year old aunt who is my mum oldest sister. However the ECO also stated that he was satisfied she met all the other immigration requirements which provides some comfort. My mum has had 2 battle with cancer and this is going on for the past 5 years now and since she never work and has been looked after by me and my older brother…….we are both in full time work, earned a good standard of living, has our own places so it was easy to provide evidence to show that she will not rely on public funds etc….it was however harder to prove exceptional, but had I read the forum before sending off the application doc I probably would not have been refused (though its hard to say) as I would outlined the case for compassionate in greater detailed. This is why they say they say the burden of prove is on the appellant, you cant leave any stones unturn or any reason for doubt.
So Alex this is where your hard work begins….you have to prove this, and you’ve got to do your own research, and not depend all on your legal team…look at the link below… pay particular attention to the section SET7.8. You have to show why you mum can’t continue living in xxxxx and why your case is exceptional more than someone in the same position – there will be others like us who look after our parents and they are wholly depend on us but how do we prove they belong here with us and that they cannot continue living in the current situation. My appeal letter along with further evidence for my mum’s appeal did outlined this (not only did her medical team provide a detailed account of her illness but we also show that her being alone is adding to her poor health and cannot continue much longer). Not only was it inhumane for her to continue living in this condition but it was making her more ill and she need to be closer to her family.
http://www.ukvisas.gov.uk/en/ecg/settle ... prelatives
This requirement is to be considered as part of the cumulative effect of the relevant Rules. For instance, an applicant who is financially wholly or mainly dependent on his/her UK sponsor and has no other close relatives to turn to for financial support, must show that his/her circumstances are exceptional in relation to other applicants in the same position. The applicant’s standard of living does not have to be particularly low but nor should reference be made simply to the applicant’s standard of living in order to assess compassionate circumstances.
Fortunately for me the original decision was overturned by the ECM though I never thought it was ever going to happen again but was preparing for an appeal hearing. This happens about 2 months after appeal doc submitted One of the reason why I put in a strong appeal is because I was confident if I can show (which should not be hard as my mum was ill and should be with us) a case for compassionate leave or exceptional circumstances then its likely that this nay get overturned at the ECM review which is compulsory (have a look at the link below). If you have addressed the issue(s) for the original visa refusal then this must be overturned by the entry clearance manager. They don’t want a case to be going to appeal hearing, knowing they are going to lose…not only is it wasting taxpayer’s money, but their time and make them look rather silly as the immigration judge will rule in your favour….this is why this part of the appeal process is compulsory whether you handed in your doc at the tribunal or at the post. However in this case it’s hard to prove (other than the money which they doubted) a case for compassionate but if it goes to the court it’s the way for you to speak to the judge and put your case forward. It won’t be easy but not impossible; a lot of hard work is required. I went through this for only about 2.5 months and felt so drained at the end.
http://www.ukvisas.gov.uk/en/ecg/appeal ... pealreview
Just to say I also wrote to the ECM to ask if I could get the process sped up when I get the acknowledgement letter from the tribunal that they have given Jam until the 25th of August to respond. I got an email back to say my mum case is being reconsidered. Like you I thought waiting for so long just to hear back from Jamaica was too much to bear, and then its another wait for the appeal. So the ECM review can take a number of weeks, these people are very hard to predict – much prayer and hard work helped my case a lot. She got the ILE and is on her way here now - Thank God…I wish you all the best in your appeal. I also know a very good Immigration lawyer who is also a judge at the tribunal, he was the one I was going to use for my appeal hearing had it not being overturned so let me know if you want his detail. This is not a case for any lawyer – you have to get someone that knows the process, have dealt with case like this in the case and knows the Human rights (more so section
.
Good luck again, feel free to get in touch for any further detail.