Overstayed Spouse Visa - advice required

[sakib123]

My wife came to the UK in 2011. I later enrolled her onto to Esol classes to meet the requirements for ILR however due to her english not being very great and the change to ILR requirements over the course of the two years she was unable to meet the requirements. When she applied for the Spouse Visa she did not sit the A1 exam required for FLRM as this was not a UBA requirement at the time. Last year I got my wife to focus on the A1 instead and she has only just passed and received the certificate. Her spouse Visa has now expired and she has overstayed by 2 months.

Should we still apply for FLRM and are there any chances of being successful?

[lynxukauq]

See Vinny Advice (click)

[sakib123]

I have read that post before posting my own thread for advice. I feel she will not be able to meet the requirements for ILR any time soon in two year may be.

My only option as it stands is to apply for FLRM even though it may get refused or she will have to go back and apply again. If I explain to them for the delay in the application would they grant FLRM and are there any grounds for appeal if it is refused?

[biposto]

Hi, what was the outcome or latest position please? I have a similar situation and it may help you to know this:

Took English exam 25 July 2013
Fiancee Visa expired 5 Aug 2013

delay sending FLR(M) application due to delay receiving English exam results. Technical issue meant wifes results didnt appear on Cambridge exams website. My chasing of the result is fully documented.

Exam results received 26 Sept 2013 (more than 28 days)
Submitted FLR(M) when exam results received but more than 28 days after visa expired.
Unaware there would be a problem. I had even phone UKBA about it & they didn't raise alarm bells.

Attended home office interview in Liverpool 3 weeks ago, invitation letter only asked us produce proof of genuine relationship etc, but there was no mention of overstay.
Received letter 22 April refusing visa and asking my wife to leave.

A complete shock, feel so stupid for not knowing there would be a problem.

Any help and advice most appreciated.

[flozo64]

The HO are picky and will refuse on the basis of no leave to remain before applying. This is a dilemma I'm facing also and we are thinking to either apply flr(fp) or have my husband return and apply from outside on flr(m).

It's likely your partner will be refused for overstaying and thus applying will be a waste of money...

[Amber]

You can't apply for FLR(M) from outside the UK!

The OP spouse's FLR(M) will be refused. However has the OP's spouse completed B1 English and LIUK? If so she can apply for SET(M).

[sakib123]

I consulted a solicitor and he decided it was best I apply for FLRM even though its likely it will be refused as it was unlikely she would obtain the KOLL requirements soon. He sent the application off with reasons for delay but home office did not by the reasons for not applying in time. Since there are no children involved we were not even given the right of appeal.

The home office stated she overstayed her Visa as reason for refusal and that there was nothing preventing us from continuing our relationship in Pakistan. They have the cheek to say I should relocate there when I was born in this country and all my family ties and my job is in this country.

As things stand now we have two options, either she goes back home within 14 days and applies again or we do a Judicial Review. My wife has her B1 exam booked next week and I'm in two minds at the moment, I'm not sure which route to take.

Any advice would be much appreciated.

[MPH80]

What reason do you have to believe a JR would have any success or would even be accepted?

[Amber]

What planet is the solicitor on?

Just apply for SET(M) once B1 English and LIUK is met.

[sakib123]

The solicitor stated that I have a good case for judicial review based on my ties with this country.

My wife has been asked to leave the country and to contact the enforcement agency for removal. Assuming she passes the KOLL requirements and I applied for SETM, surely this would be refused also due to unsusseful FLRM application and overstaying?

I'm really not sure what to do. If I'm allowed to request can someone pm me in private so that I can show the refusal letter.

[MPH80]

A JR isn't an appeal. It's an opportunity to challenge the lawfulness of the way the decision was made.

Unless you believe that UKBA made some sort of unlawful step in their decision making process - you have no grounds for a JR.

See here: http://www.judiciary.gov.uk/you-and-the ... ial-review

Follow Amber's advice.

[sakib123]

A JR isn't an appeal. It's an opportunity to challenge the lawfulness of the way the decision was made.

Unless you believe that UKBA made some sort of unlawful step in their decision making process - you have no grounds for a JR.

See here: http://www.judiciary.gov.uk/you-and-the ... ial-review

Follow Amber's advice.

My solicitor stated we should challenge the unlawfulness of their decision to refuse the Visa by stating if I wish to live with my wife I can do so in Pakistan which means I should leave my country of birth. He said we have a very strong case in this regard and the decision may not go to court. If it does the chances of winning would be more in my favor and is the only way since the right of an appeal was not granted. He also stated since she is not a student or a visitor who has overstayed this also makes the case stronger.

If I were to wait and apply for SETM, I'm worried we may get a knock on the door and she may be removed by the enforcement agency. How do we deal with them? Also the Home Office has retained her passport in which case we would not be able to apply for SETM? Even to book the life in the UK test we would be required to show her passport as ID which we don't have at present.

Would it be best if I rang the Home Office for advise on what to do?

[MPH80]

Given the strength of your solicitors' belief in your chances - ask him to work on a no-win-no-fee basis and see what his response is.

I, personally, do not believe you have a huge chance. As long as UKBA considered you in the process properly (which they appear to have from what you've posted!) I doubt you have a case to argue. But I'm not a solicitor.

I wouldn't bother ringing the home office for advice - they are generally less knowledgable about their processes than every one else!

[sakib123]

Given the strength of your solicitors' belief in your chances - ask him to work on a no-win-no-fee basis and see what his response is.

I, personally, do not believe you have a huge chance. As long as UKBA considered you in the process properly (which they appear to have from what you've posted!) I doubt you have a case to argue. But I'm not a solicitor.

I wouldn't bother ringing the home office for advice - they are generally less knowledgable about their processes than every one else!

I spoke the solicitor today and he stated things are tough now as UBA is no longer in charge as the Home Office has taken over. He said when UBA was in charge they did ignore out of time applications in most cases and they would have given the Visa in my case. He also stated that the home office has stopped the right of appeal in most cases whereas under UBA there were no restrictions. The only way forward now would be JD as an appeal would not even be considered by home office. On the other hand I took advice from another solicitor who stated that we do have a right of appeal and that a JD is the very last action they would take. He quoted sometimes the home office does not make decisions correctly and just because they say there is no right of appeal does not mean there isn't and my wife stands a good chance. They suggest to appeal under Human Rights Article 8 and Article 12 which is not used regularly.

I'm still unsure what to as she has until 8th May according the first solictor before I get a knock at the door for my wife's removal. I'm now starting to panic.

[sakib123]

I've attached an edited copy of my refusal letter.

[Amber]

SET(M) doesn't require extant leave therefore it doesn't matter if spouse leave has expired! Apply for SET(M) and get the B1 English and LIUK completed.

[sakib123]

SET(M) doesn't require extant leave therefore it doesn't matter if spouse leave has expired! Apply for SET(M) and get the B1 English and LIUK completed.

Hi Amber,

I wish I could follow your advice but I have three issues I was hoping someone could address.

1. Home Office has retained my wife's passport - Is SETM application accepted without a passport?
2. How do we stop the enforcement agency from removing her?
3. To apply for life in the UK test a passport is required as ID whether current or old. - Is there another way to book?

[Amber]

If they have the passport just state it on the application form. A driving licence could be used as ID for the tests.

[sakib123]

My wife doesn't have a drivers licence or a provisional, she only had her passport to use as ID.

We've decided to take the second solicitors advice and lodge an appeal using further evidence to show why I cannot move to Pakistan. Our appeal would be under human rights as they have not fully considered this and may have overlooked some documents I've submitted with the application.

I have my fingers crossed they will reverse their decision and issue the Visa extension.

[Amber]

Well good luck. You can still apply for SET(M) again after the appeal outcome so far as you meet B1 English and LIUK. You may also ask the UKVI for the passport back in order to sit LIUK.

[sakib123]

Well good luck. You can still apply for SET(M) again after the appeal outcome so far as you meet B1 English and LIUK. You may also ask the UKVI for the passport back in order to sit LIUK.

Thanks.

If the appeal is a success they will return her passport back although I will try and request UKVI to return her passport whilst appealing. She will sit the B1 exam next month as planned and am hoping she will pass that. If they return her passport before the appeal outcome we will book the LIUK test if not we will have to wait till the outcome of the appeal.

I will post back on the outcome, I think we may be in for a long wait to hear the appeal.

[amandahic]

Hi, you might not be following this forum any longer, but was wondering what was the outcome of your application. My case seem very similar to yours. Similar silly reply from Secretary of State suggesting my British born n never ever worked outside UK reallocate. He has his family ties, friends, job n own flat here. HO sees no obsticles whatsoever that if he reallocate! Easier said than done, what a silly stupid decision, getting rid of a tax paying citizen!!! My last route right now is flying out of UK n apply n keeping fingers crossed that i wont end up getting the 12 months ban as overstayer.