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Tony M

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  1. It would be better if you posted the refusal notice. As said before, the devil is in the detail.
  2. For me, and I stress that it is my opinion only (or mostly my opinion) there is a lot more in this situation than first appears. It is a visit visa application, but there is a British child involved. The child lives in Thailand with his mother, and my view is that the child, as an EU citizen has a right to family life. The Home Office has argued on many occasions that the Article 8 rights to family life do not apply in visit visa applications, but I don’t see how the right cannot exist. The fact that the applicant hasn’t made a settlement application is, to me, irrelevant. The ECHR doesn’t differentiate between the reasons that a person might want to enjoy “family life”. The Home Office is aware of this, and publishes guidance that states that if an applicant or sponsor expressly states in the visit visa application that there are human rights considerations, then the ECO must consider them. If it is not stated, then the ECO doesn’t have to consider any human rights. My question to that is, why shouldn’t the ECO have to consider any possible human rights “violations” in an application ? Such reasons for a human rights claim could be that the child is so young that he cannot be expected to travel alone, and the father in the UK is unable to travel to Thailand for whatever reason, etc, etc. The normal outcome is that the refusal notice says that the ECO has considered the human rights claim, and that he doesn’t consider Article 8 (the right to family life) to have been engaged. So, the ECO refuses the application, and states that there is no right of appeal. I do not believe that the ECO has the right to decide who has the right of appeal in human rights applications. He, logically, cannot be the final arbiter on such a important claim. Therefore it surely must be the Appeal Tribunal that decides if the applicant has a right of appeal on human rights grounds, and they will make that decision if an appeal is received at the IAT. You could, in my opinion, therefore submit an appeal. It might well be denied at the hearing as no mention was made of any human rights aspect in the application, but (again, my view only) how can it be the ECO’s decision to say whether there are any human rights aspects or not. No disrespect to ECOs, but they are not experts in European human rights law, and I don’t believe that they are the correct “level” of decision – maker for such a decision. Denying someone their human rights is a fairly important decision at any level. I am aware of one visit visa refusal, in almost identical circumstances, where an appeal has been submitted, even though the ECO said that there was no right of appeal. There will be an appeal hearing next month, I believe. The appeal may well be turned down, but it might at least give some guidance on whether the ECO has the right to decide if an applicant has a right of appeal in visit visa applications where “human rights” are claimed. Please don’t get me wrong. I don’t believe that human rights should be thrown into every application, but where there are British children involved, who are unable to be with a parent, then I have some sympathy. This is from some old advice that I found : An appeal to the Immigration and Asylum Chamber of the First-tier Tribunal can only be brought on grounds of either · a breach of human rights or · race discrimination. In some cases an appeal will not really be possible on these grounds and an application for judicial review will be the only means of legal challenge. It is normally very hard to succeed in arguing a human rights immigration case and very few such cases normally succeed. Do I even have a right of appeal? It is no longer standard practice for visit visa refusals to be accompanied by an appeal form, and in an independent inspection in 2011 it was discovered that 30% of those refused visit visas were given in correct information about their appeal rights. You should therefore not assume that information provided by the entry clearance post is accurate. All visit visas have a right of appeal on human rights grounds or race discrimination grounds, and if an appeal is the right remedy for you then you can lodge an appeal to the tribunal irrespective of what information the Entry Clearance Officer provides. What cases might raise human rights grounds? First of all, you need to show that a human right of some sort is engaged by the visit. In immigration cases and family visits, that means that there will need to be a visit between close family members so that Article 8 of the European Convention on Human Rights can be argued to be engaged. This article protects the right to private and family life: Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. A visit between two spouses or long term partners would normally be considered to engage human rights. A visit between a parent and child under the age of 18 would also normally be considered to engage human rights. A visit between a parent and non dependent child over the age of 18 might engage human rights, as might a visit between siblings and perhaps even between more extended family such as an uncle, aunt, cousin, nephew or niece. So, you can appeal if you want to (and make another application while you are waiting, if you want to). It may not succeed, but it might help others in the future. At the moment, the Home Office doesn’t even want to accept that there can be human rights considerations in visit visa applications, or rather, they don’t want applicants to know that there could be. There is, actually, published guidance on this, but ECOs seem to like to ignore it. I have attached the guidance. considering_hr_claims_from_visitors_guidance_v1_0_ext.pdf
  3. But you said "All you can do is submit another application..........' I just pointed out that is not correct. Sorry if I have offended you in some way.
  4. That's not entirely true. You can complain about a refusal (and ask for the decision to be reviewed) if, for instance, the ECO made an error of law, or if you have good grounds for thinking that some evidence was not considered. Just complaining about a decision because you think it was wrong won't get you anywhere, I'm afraid.
  5. It may have been asked before, but why don't they just offer a reward for information leading to his whereabouts and arrest. An offer of 5 Million THB might lead to an early arrest.
  6. The previously spoken-about "new" requirements for settlement visa applications (where the 18,600 GBP threshold is not met) have today been published by the Home Office. As suspected, in order for the additional routes to meet the 18,600 GBP threshold, the applicant/sponsor must meet the "exceptional circumstances" requirement. Even the guidance from UKVI says that this requirement is set "high", meaning, I guess, that very few will ever meet the "high bar" that has been set . For instance, this is a taste of the guidance on Exceptional Circumstances (my emphasis) : What are exceptional circumstances? “Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, “exceptional” means circumstances in which refusal would result in unjustifiably harsh consequences for the individual or their family such that refusal of the application would not be proportionate under Article 8. If the family could all go to the country of return together but they choose to separate, this will not in itself constitute exceptional circumstances. However, the decision maker should not usually make a decision that forces a family to split if there is no criminality to add weight to the public interest in removal. Cases that raise exceptional circumstances that warrant a grant of leave outside the rules are likely to be rare. The new Appendix FM 1.7 is attached. Appendix_FM_1_7_Financial_Requirement_Final.pdf
  7. An Introduction From IAS

    Thank you for your response, but I'm not sure that you have covered my question. You say : "in short, ‘exceptional circumstances’ will be the new battleground for these types of Application". My question was, will the exceptional circumstances have to be proved before the ECO has to move on to considering the additional routes to meeting the financial requirement ? If this is the case, then won't it just become a matter of UKVI refusing the applications on the grounds that there are no exceptional circumstances, and they therefore don't have to look any further ?
  8. An Introduction From IAS

    What are your charges ? Many advisors publish their charges. but I cannot see yours. It might be a good idea to do so, so that applicants can compare your charges with agencies in Thailand, some of whom are also OISC registered in the UK ?
  9. An Introduction From IAS

    You have an article on your website about the new requirements for spouses/partners etc. These requirements are due to start in 2 days, but there is still no guidance from the Home Office. Your website says : From August 10th, 2017, decisions for spouse visa and dependent children outside the EEA will take into account specified circumstances if the applicant or spouse does not currently meet the £18,600 per annum, Minimum Income Requirement. Home Office decision-makers will now have to consider if the 18,600-Minimum Income Requirement would be met through other methods of financing. This will include evidence of sustainable self/employment within three months of moving to the UK, proof of continued support from a financially stable family member or other such persons. The changes are following a February 2017, Supreme Court ruling in which the principle of the £18,600 Minimum Income Requirement but considerations were made and the Home Office will have to take into account the potential earning potential as well as consequences of refusal. Spouse and Family visas will also now be considering those who don’t meet the Requirement and whose refusal will have “unjustifiably harsh consequences for the family” or would breach the applicant or family’s Human Rights. The way the Command paper reads, it seems that before the ECO needs to consider the "new" financial routes, the applicant must prove that there are "exceptional circumstances" to cause the ECO to do so. So, it appears that, if the applicant cannot show exceptional circumstances, then the ECO will not need to go on to consider any additional financing. But your article seems to indicate that the ECO must consider both. Which is correct ? Proving exceptional circumstances is very difficult, and the UKVI rarely issue visas where exceptional circumstances are claimed in the application.
  10. I'm not going to name the restaurant concerned here. Last week we ( four of us) fancied a meal along Jomtien Beach, in a restaurant we had been too several times, but not for a while. Right opposite the restaurant was a pick-up truck, playing music with a heavy bass beat. We decided to eat inside, rather than outside, although we had been looking forward to a nice outside meal. The music got louder, and the bass got heavier. We asked the staff if they could do something, and they said they would call the police. They didn't. When we left, I spoke with the guy taking care of customers outside, and told him that In wasn't happy, and that we would not be returning to the restaurant in the future. However, my wife (Thai) had been speaking with one of the staff inside, and was told that the restaurant had called the police on a previous occasion, and the police had moved the pick - up on. After the police left the pick - up returned, and the occupants threatened the staff with a gun, telling them never to call the police again. They return most nights to continue playing loud music. So, the restaurant staff's story may, or may not be true, but in view of the fact that these pick-ups playing loud music continue to do so, without any apparent complaints, or action, from restaurants or the police, possibly the story is true ? If you intend to eat in one of the open restaurants along Jomtien Beach, I would suggest not choosing one that has a pick-up playing loud music nearby (unless you like loud bass music with your meal, of course).
  11. As I showed above, in the guidance, the UKVI give you (as a CIS worker) the option of choosing to be treated as self-employed, or as a salaried employee. A person working as a subcontractor under the Construction Industry Scheme (CIS), administered by HMRC (and under which the contractor deducts tax and National Insurance contributions from the payments made to the subcontractor), can, as an alternative to meeting the requirements of Appendix FM-SE in respect of self-employment, choose instead to count their CIS income as income from salaried employment The documentation required for treatment as a salaried employee (wage slip showing tax paid, bank statements, etc) is a lot easier than the self-employed requirements. It's your choice, of course.
  12. The choice to be treated as self-employed or a salaried employee is yours. If you are issued a wage slip showing your gross and net salary, and your tax payments, then you can be treated as a salaried employee.
  13. As a CIS worker you have a choice. You can go down the self-employed route, or you can go down the salaried employment route. If you choose the salaried employment route, you must the specified requirements of a salaried employee. The guidance is : A person working as a subcontractor under the Construction Industry Scheme (CIS), administered by HMRC (and under which the contractor deducts tax and National Insurance contributions from the payments made to the subcontractor), can, as an alternative to meeting the requirements of Appendix FM-SE in respect of self-employment, choose instead to count their CIS income as income from salaried employment. If they do, they must meet the requirements of paragraph 2 of Appendix FM-SE for specified evidence for salaried employment, subject to reflecting their status as a CIS contractor rather than an employed person. So, they must provide CIS payment slips in place of payslips, a letter from the CIS contractor in place of an employer’s letter and the required personal bank statements. If a person cannot provide this evidence, or it is not clear that they are covered by the CIS scheme, their income should be treated as income from self-employment and the relevant self-employment evidence must be provided. See section 9 of this guidance. You may have a CIS card from HMRC, but I'm not sure that they still issue them. If not, your wage slip will normally state that you are being paid as a CIS employee. Possible problems may occur if you are being paid through an umbrella company.
  14. You can download a partially completed application form while you are completing it online. You don't have to wait for the application to be submitted before you can print it out. I have attached a printout of an online visit application that was completed and submitted. I have deleted the identifying information (sorry that it looks a bit messy. I could have made it look pretty, but it is really just to give you an idea of what is involved) . The online form is "intuitive", so if you answer "yes" to a question, it will bring up another question. So your form (or another applicant's form) may have different questions. For instance, where it asks if you have any other (previous) passport, and you answer "yes", it asks for details of the previous passport. If you answer "no", then you don't get asked for further details. Sample online visa application form.pdf
  15. I don't think it sidetracks the thread at all, as there will likely be many who will have to demonstrate "exceptional circumstances" in order to benefit from the new "concessions" from the Home Secretary. The more examples and information that people can provide, the better !
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