Solicitor - second opinion?

[redge89]

Hi all

So after two denied appeals against my wife's UK visa application we have decided it would be best for her to return to the Philippines and apply for a spouse visa from there (We got married after the initial application so the courts did not consider the marriage in their decision at that time)

We are considering getting a second opinion from another solicitor before doing this though and I just wanted to get your thoughts on if it is worth it or whether they will just take us and our wallets for a ride? We spoke to one solicitor and they said that we can make a new discretionary application from here, with the marriage included as evidence, and my wife will still be able to work here

How does this all sound to you? I really need to make the right decision before we blow thousands on getting her to the Philippines and back (or waste money on a solicitor when we could be getting on with it)

Thanks in advance

[Wanderer]

If no kids/uber-compelling reasons involved the only realistic way is to apply from home.

[Casa]

I agree. According to a friend who is a very reputable immigration solicitor, he is seeing virtually no successful applications in this category for couples without children.

[redge89]

Oh ok do you mean no success for people applying within the UK without children? Or no success even if she applies from the Philippines without children?

We just spoke to another solicitor's assistant and he said that she might even be turned away if she applies from the Philippines because of her previous refusals but this is contrary to what our solicitor and others online have said so i'm very scared and confused now

Our solicitor said 110% the application from the Philippines would be successful and others have said it should be fine so long as I earn enough and tick all of those boxes, which I do

Obviously I'm terrified of losing my wife and she is in an awful state at the moment with contradicting statements bombarding her. So thanks to all of you for replying to me.

[Casa]

OK. To reassure you here, I was referring to FLR(FP) applications made within the UK. She can't be refused under 320(7b) as a spouse. As long as you tick all the boxes she can only be refused under 320(11) if she has 'frustrated immigration rules'. Have a read through this;
https://www.gov.uk/government/publicati ... raph-32011

[redge89]

Thanks Casa that's really helpful you're a star. My wife went to see another solicitor today and they said that it would be possible for her to apply within the UK although it would take 6 months and she would be unable to work. She's thinking that if she goes back to the Philippines they might not let her back as she overstayed. However I'm not sure what qualifies as overstaying - she had her application denied about a year ago and we have since had two court hearings. During that time she has been perfectly legal to work and everything

[Casa]

As explained in my previous post your wife as your spouse is exempt for being refused for overstaying under rule 320(7b). She could only be refused due to reasons under rule 320(11) which is why I suggested you read through the list to see if any applies. If not, as long as you meet the financial condition, can submit evidence of a genuine relationship, meets the A1 English requirement and you have adequate accommodation there's no reason why you shouldn't be successful. The solicitor's advice of a 6 month wait for an application in the UK is extremely optimistic. It would also be a 10 year route to settlement instead of 5 years. Without children it may well be refused.
It would be interesting to know what category of visa he was suggesting to submit.

[redge89]

Thanks again - I've read through 320 (11) and she hasn't committed any of those offences so that's promising. This other solicitor was suggesting to submit a spouse visa from within the UK.

Based on what you've said it seems that our original solicitor was correct in advising that it would be best for her to apply from the Philippines then, I just hope it doesn't take too long for the outcome of the application to appear

[MPH80]

Thanks again - I've read through 320 (11) and she hasn't committed any of those offences so that's promising. This other solicitor was suggesting to submit a spouse visa from within the UK.

Based on what you've said it seems that our original solicitor was correct in advising that it would be best for her to apply from the Philippines then, I just hope it doesn't take too long for the outcome of the application to appear

The solicitor that advised you to submit a 'within the rules' spouse visa just wants your cash. He's, frankly, badly informed at best and just damn stupid at worst.

Your options are:

a) An FLR(FP) - effectively a 'private life' application in the UK - highly unlikely to be granted without children and even if it did would put your wife on a 10 year path to settlement. It's likely to be a 1-2 year path minimum to have any hope of having the visa in place and a LOT in solicitor's fees as they charge you for each of the appeals they tell you that you are 'certain' to win if you just pay them another £1000.

b) A spouse visa application from the Philippines which, given what you say about 320(11) and providing you meet the requirements as Casa laid them out - you'll be fine.

M.

[Obie]

If exception 1does apply, then the solicitor may not be wrong.

It will all depend on the circumstance of the case, which only a solicitor dealing with the OP directly will be able to address.

If there are insurmountable obstacle to the OP's relocation with the wife to the Philippines, then I see nothing wrong with the Solicitors advise.

I accept that it the above test is very restrictive, but it cannot be said, that the OP's wife cannot, under any circumstance succeed, and the advice given by the solicitor does not even engage the law.

It may well be the case that the wife has a much better prospect applying from the Philippines, but that does not mean the solicitor was totally wrong in his advise.

[redge89]

Thanks guys that's helped cleared my mind a bit. I've read up on exception one and was wondering what would qualify as insurmountable circumstances for me to go and live in the Philippines? We have in writing the previous judges decision on our last appeal which, while still refusing to overturn the decision, does admit that it is unreasonable for me to go and live there - would this suffice?

[Obie]

Also see Page 23 of this guidance which defines insurmountable. The "Reasonable " test applies to children under 18 who are British or have lived in the UK for a period of 7 years.

[Casa]

Be aware if you choose to fight for the right to stay from within the UK, apart from the FP route being extremely lengthy and expensive there is no guarantee of success. If your wife's application was granted a visa outside of the Rules, it would take a further 10 years before she would qualify for permanent settlement. Applying from outside of the UK would put her on a 5 year route to ILR.

[medge89]

Hi, I am his wife and my appeal for permission to appeal to the Court of Appeals was rejected by the upper tribunal. So now we decided to just make a fresh application. A consultant at work permit.com told me that I can make a spouse visa application inside the uk and under the rules as long as I apply within 28 days of receiving the rejected permission to appeal to the Court of Appeal. Is this true?

[Obie]

It will depend on what your circumstances are, why you were refused, and whether or not you had a leave which expired whiles a decision was pending on your application, and whether that was the basis of your appeal.

The option of filing an appellant's notice to the Court of Appeal is also open to you.

[medge89]

My post study work visa expired in april 2013 but I put in the discretionary application in a month before it expired. That discretionary leave was refused last year and since then we have had 2 court hearings. The upper tribunal refused it then we asked for permission to appeal to the CoA but was then refused as well on the 21st of October. We dont want to appeal directly to the CoA anymore as we want to make a fresh spouse visa application. My question is whether I can do it inside the uk under the rules as long it's within 28 days? If not then I will go back to the philippines where I come from. Thanks so much for replying.

[Obie]

You are entitled to do that.

Under what provision are you planning to apply, and do you meet its requirement.

[medge89]

I am not really sure what you meant but basically we just want to know if I'm still considered as someone who has leave to remain until the 28 days is up. So that we can apply under the rules for the spouse visa without me being an overtsayer I the country. And if I can still have my post study work visa rights if I apply within 28 days. Thanks really appreciate it.

[Obie]

You can apply if the requirements are met.

[medge89]

We have the financial requirement, english, accommodation and marriage certificate along with chats and pictures. Is that all we need to apply from inside the uk within 28 days?

[Obie]

Yes. You have to provide the specified evidence in appendix FM-SE.

If you met the requirements then why did the tribunal refuse.

[medge89]

Will we be successful though as I dont have a visa here anymore.

It was refused because of I applied at the time we werent married yet.

[Obie]

Are you the Original posters. The first letters of both names seems different.

You cannot have two user names.

This is not allowed.

[medge89]

Hi as I explained yesterday, I am his wife and the applicant.

[Obie]

Great. So long as you are not the same person. Husband and wife are entitled to have a separate account.

Within 28 days following your deadline for renewing your application at the Court Of Appeal, you can apply.