Post
by perplexed42 » Thu Apr 24, 2014 10:43 am
I don't want to divulge personal info here as we have a tribunal looming - however I think I can give you the general info on our case, and I'd like to know what people think of it - I know it's down to the judge to decide at the tribunal, but I'd like some people's opinions.
My partner and our children were refused an extension of their settlement visas because my partner submitted an English certificate from a provider that the Home Office no longer recognised. This was the same English certificate that we sent with the original settlement visa 3 years ago, and it was approved by the Home Office at the time of the original application. My partner scored higher than the A1 requirement and so in good faith we sent the same certificate (that the Home Office approved with the original settlement visa) for the settlement visa extension. I admit that's a mistake, but it's an honest one, and we did everything in good faith.
They wrote back to us and said we had not sent an English Language test Certificate, even though we clearly had (we went through the entire checklist to ensure we sent everything). We were confused. We HAD sent an English certificate. Since my partner passed the Knowledge of Life test (my partner originally wanted to go for ILR, but a late rule changed forced us to go for settlement visa extension), we sent the KOL certificate (even though KOL isn't a requirement for a visa extension) - thinking perhaps they wanted more evidence of my partner's English ability.
They wrote back to us a few weeks after we sent the KOL certificate saying the extension was refused because we supplied an English certificate from a provider that wasn't recognised. By the way, the English test she took was a genuine test, and was actually approved by the Home Office with the original application.
Of course, we appealed, and my partner took a brand new ESOL English test just 2 weeks after we got the refusal letter to show as evidence at the tribunal. My partner scored a B1 - 2 grades higher than the required A1 - and yes, from an approved Home Office provider. Our legal advisors have said this can be used as evidence at the tribunal. My partner actually has the English language certificates (KOL, B1) to pass ILR, let alone a settlement visa extension.
We've lived in the UK as a family for 2.5 years - we have an established life here, and have been together for nearly a decade. My partner runs a business in the UK that involves talking to English native business owners all day. I have a business of more than ten years in the UK. Moving to my partner's home country will mean we will all have no work and we will start from scratch, all because of the English language certificate problem. The HO dismissed all Article 8 Human Rights considerations which I found absolutely astonishing.
My key question: surely the tribunal is a place of discretion and judgement - therefore, shouldn't the judge see that my partner's English ability is beyond any kind of dispute (B1, KOL) and therefore SHOULD ("in the balance of probabilities") give us a favourable decision?
Yes, it could be argued that we should have checked that the English certificate we submitted originally was CURRENTLY approved by the Home Office - our mistake - but an honest one. Is there a case that we should be "punished" by deportation? The Home Office should have used some discretion and let us know that they didn't recognise the certificate when they first wrote to us (rather than point-blank say we hadn't sent one which was not true!), and afford us 2 or 3 weeks to take the English test (which we did anyway, and my partner scored B1). Passing KOL - in my opinion - is far far tougher than passing A1 at ESOL - so surely the HO should have seen that and therefore used discretion to give us a few more weeks to take an ESOL test.
Can we really be deported (as punishment, rather than a reflection that we don't meet the requirements) on some technicality like this, even when it can be proved beyond all doubt at the tribunal that my partner's English far exceeds the requirement?
There are no other issues - financially independent (meeting minimum earning requirements), law-abiding, never used public funds, pay all of our taxes.