failed asylum claim - what to do next?

[taromiew]

Hello. Apologies that this is going to be a long one...

My boyfriend came into the UK in 1997 and claimed asylum shortly afterwards. He never came to the attention of the authorities until some Home Office officials checked a restaurant for illegal workers. One of the staff ran and they were all taken to the police station eventhough my bloke had permission to work - he had to report to the police station every month thereafter. This was in 2000 and his solicitor had to prepare a statement for his asylum claim using an interpretor as he didn't speak any English at the time.

He was finally called for an interview in June this year and we were waiting for the outcome to this. Nothing arrived in the post for him and we were surprised when we got a voicemail from his previous solicitor (dated 5th September) telling us to come to the office urgently for appeal. The refusal letter was dated early August but the solicitor said he didn't receive it until 22nd August and the deadline was 24th August which means we've missed it. When we asked him why he didn't contact us immediately on the 22nd, he said he tried but my bloke hadn't received any missed calls/ messages on his mobile from him. This particular solicitor was assigned to him in 2000 eventhough he speaks no Mandarin.

I was just wondering whether it was worth appealing. We already know his case is rather weak - as we have sought intial legal advice. We were told that the only thing that could work for us is that he's been here for 10 years and has made his life here - I'm his girlfriend of nearly 6 years, he had his own business for almost 4 years which he's recently sold, he has friends here and has been attending English lessons (Esol) until recently.

Has anyone ever won because they've been in the UK for 10 years and made a life here? Is there a good chance? The new solicitor believes there is a 50-50 chance as they took so long to reach a decision but another legal rep said the chances were very slim - so conflicting views and I don't know which is right - I know it's hard to predict.

The refusal letter stated that they considered he entered into a relationship with me because of the uncertainty of his immigration status and knew that he was likely to be removed and that he showed no evidence of ever owning a business. That really offended us as he just mentioned in the interview that he was in a long term relationship and they never spoke to us or saw us together yet were able to make such an assumption. If that were really the case we would have married a long time ago when it was easy to do so (pre-Feb 2005).

Is it worth appealing in the non-asylum section re. our relationship and his links to the UK? If he returne to China - he has no documents - would what they have said in the refusal letter affect his chances for applying for a (spouse) visa? Originally, we were planning to get married early next year - just a small ceremoney with close friends and relatives - before all this happened though know this won't be official as we know it's not possible. Now, we intend to go to China and get married there and apply for a spouse visa but I don't know whether it's worth doing the appeal first and see what happens or just go directly with the spouse visa route - I really don't want to lose him. I'm also slightly worried that he speaks little English - there was talk that your spouse had to be able to speak English if he wanted to come here.

We are seeking legal advice and have an appoitment tormorrow but wanted to hear other people's thoughts on this.

Many thanks in advance.

Pui

[SYH]

There is no point in getting offended. You have to approach this very practically. The HO is entitled to their opinion as to the motive of his entering a relationship with you. It is an opinion. You may refute it with any evidence you wish in your appeal. Second, lack of evidence of a business. Again provide them evidence that he did indeed engage in business activities.

As for determining who is right in terms of your chances, you will never know who is right that is why solicitors exist to present the best case possible but they can't guarantee what the decision makers are going to do. If you appeal, I'd definitely use the solicitor who was more positive about your chances.

Whether you should appeal is for you to decide. It sounds like from the advice you have received it could go either way. In any case, if you search the previous posting, you will find people have had an easier go by leaving the country without a fuss and coming back on a fiance or spousal visa. Taking the path of least resistance might result in a hell of lot less frustration.

[taromiew]

Many thanks for your thoughts on this, SYH.

As he doens't have any documentation, would the Home Office arrange for his travel documents or would he have to do it himself? If he decides to go back voluntarily, how long does this usually take? I take it that if he doesn't appeal, he'll become illegal.

Is it always better to pay for the ticket ourselves rather than letting the HO foot the bill?

[SYH]

Many thanks for your thoughts on this, SYH.

As he doens't have any documentation, would the Home Office arrange for his travel documents or would he have to do it himself? If he decides to go back voluntarily, how long does this usually take? I take it that if he doesn't appeal, he'll become illegal.

Is it always better to pay for the ticket ourselves rather than letting the HO foot the bill?

I presume you mean a passport. As long as he is not stateless, it isn't HO's problem.

[jimquk]

Hi

you lose nothing by making an appeal, although you have missed the deadline. It may still be possible to make an out of time appeal if you can show good grounds. Normally you have ten working days after receipt by you or your representative; the failings, if any, by your previous solicitor are considered to be down to the applicant, as it is up to the applicant to choose a good rep. Still, you can try for an appeal, there's nothing to lose, and no reason why it should adversely affect any future application.

You say yourself that his case is weak, but be guided by a solicitor with asylum experience.

As for the comments and tone of the Reasons for Refusal Letter, this is absolutely typical, and nothing to be unduly worried about. Such letters are typically drafted in the most negative possible terms, putting everything in the worst possible light. The court is much more likely to be even-handed, but still won't grant asylum if there is not a good case in law for it.

In practice, few failed applicants are removed to China; it may be possible for him to remain and hope for eventual regularisation. On the other hand, voluntary return to China, and return here with a spouse visa may well be the best option. He can go to the Chinese embassy to get a passport made, or he could contact http://www.iomlondon.org for assistance and impartial advice.

Make sure that you have lots of evidence of your relationship, finances, etc, and get him to sort out his English! Check out some other threads here about similar situations.

[taromiew]

Jimquk - Many thanks for your advice.

We're still unsure of what course of action to take but hopefully the solicitor we're seeing later today will help us reach a decision (hopefully the right one).