student overstay due to solicitor late application

[ian1464]

I met my wife last year and she was a part-time working student from Zimbabwe. We got a COA and married in the UK in July 2007 in a Church of England
My wife has always submitted the visa application on time for last 6 years but this time to do things properly for a spousal app, she used a recommended immigration solicitor. The VIsa expired 31 Aug and the sol got it on the 15th Aug and apparently went on holiday and despite our calls to see it was sent in the meantime, his secretary said he was unavailble.
On his return (Sept 1st) he said though appl was late all was ok. He then 2 weeks later said as I work we get no legal aid and he sent the docs back to her because she asked him to as already late.
She sent them in and the HO sent them back saying overstayed despite her letter of explanation & evidence(special delivery) that they were submitted to sols in time amd is now told to leave and reapply without appeal
This delay wasn t down to her and it was a qualified body(sols) that was dealing. Is this classed as exceptional circs to appeal? We cannot get hold of him just now and she has been told to leave now? What can we do?

[paulp]

Can you confirm that you are a British Citizen or ILR holder? Although an inopportune turn of events, it might be the right time to get your wife on her 2-year track to ILR.

It wasn't your personal fault that the app got delayed, but it was still your chosen representative's fault, acting in your capacity. It may be hard to get around the refusal.

[ian1464]

I am British and we are going to resubmit the application.

With regard to the late submission being down to a qualified legal person error surely this can be taken further. Would this be exceptional circumstances. She has been here 6 years and always submitted in time in the past. Do you think there is a way around it?

[paulp]

Please be careful, now that the HO has classified your wife as an overstayer, the submission of a new application will not make her stay legal.

Is your sollicitor OISC registered? You may make a complaint/try to get compensation.

However with regards to the HO, it is not the date that you gave your application to your representative that matters, it's the date that the application was submitted to them.

[Wanderer]

What is the legality here? I know as a (ex!) company director when I sign the accounts prepared by the extremely expensive accountants I know ultimately it;s down to me if they are wrong. It's my company so I'm liable.

Is it the same here? that ultimately the lawyers can wash their hands and say 'u know the rules, u should have made sure'?

I dunno, just wondering...

[paulp]

The lawyers can surely be held accountable to their professional body if they were grossly negligent, which they may be in this case. But the problem, although I greatly sympathise with the OP, was between the OP and his representative, not with the HO.

It's a bit like if you gave your accounts to your accountant for the tax return but they were late in sending it to the taxman. You still get fined.

Now, it may be advisable for the OP to seek professional advice. The problem is that there is no right of appeal, so reconsideration may be the only route. A good immigration consultant may know of another route but I wouldn't keep my hopes up.

[tasha75]

With regard to the late submission being down to a qualified legal person error surely this can be taken further. Would this be exceptional circumstances.

I am sorry about your situation. My first lawyer submitted fake payslips with my application, and then simply disappeared (I only found out when I requested my file from the Home office). I've been chasing him up for over 2 years, I presented proofs to the Home office (my letters to him in that time) but was still told that it was my responsibility to ensure I was adequately represented. They took no action against him, even though he represented other applicants, and chances are that he also used fake documents there.
I think they (lawyers) should be punished with at least a big fine for such mistakes like yours, so they think carefully next time. They are playing with people lives. If your lawyer registered with OISC you may try to complain to them but it's got to be within 6 months of the incident.

[jimquk]

In view of the situation regarding returns to Zim, I would think that there may be grounds for asking the BIA to look at this sympathetically. I would

first find another advisor

second take advice about complaining to the OISC and/or Law Society

third consider contacting your MP.

However, the basic rule is clear: you are responsible for the actions errors and omissions of your solicitor, who is merely your agent. You can complain against him, sue him for compensation, whatever, but it doesn't alter the BIA's stance on your case.

[SYH]

With regard to the late submission being down to a qualified legal person error surely this can be taken further. Would this be exceptional circumstances.

I am sorry about your situation. My first lawyer submitted fake payslips with my application, and then simply disappeared (I only found out when I requested my file from the Home office). I've been chasing him up for over 2 years, I presented proofs to the Home office (my letters to him in that time) but was still told that it was my responsibility to ensure I was adequately represented. They took no action against him, even though he represented other applicants, and chances are that he also used fake documents there.
I think they (lawyers) should be punished with at least a big fine for such mistakes like yours, so they think carefully next time. They are playing with people lives. If your lawyer registered with OISC you may try to complain to them but it's got to be within 6 months of the incident.

what do you mean he submitted false payslips, why would he do that? And the ho noticed this and you had to prove otherwise???

[tasha75]

what do you mean he submitted false payslips, why would he do that? And the ho noticed this and you had to prove otherwise???

I've contacted him about the possibility of applying for leave outside the rules, or may be some concession which is not advertised to public. It seems that the only LOTR he knew about is ILR under 14 year rule and to prove my residence here for all 14 years he submitted fake payslips. The HO noticed straight away (as I could see per their notes in my file) but the did nothing at all for over 2 years until I requested a file, and horrified contacted another lawyer.
The payslips had a spelling mistake in a company name and apparently they looked too new for being 14 or so year old (as from HO notes, the file contains only photocopies so I don't exactly how fresh they looked). What I noticed myself is that I apparently worked since I was 11, and with the same NIN that was issued to me about 10 years later, in my twenties. Even British citizens don't get NIN till they are 16.
No. I didn't try to prove they weren't fake, I knew they were just by looking at them as I never gave them to the lawyer.

[SYH]

what do you mean he submitted false payslips, why would he do that? And the ho noticed this and you had to prove otherwise???

I've contacted him about the possibility of applying for leave outside the rules, or may be some concession which is not advertised to public. It seems that the only LOTR he knew about is ILR under 14 year rule and to prove my residence here for all 14 years he submitted fake payslips. The HO noticed straight away (as I could see per their notes in my file) but the did nothing at all for over 2 years until I requested a file, and horrified contacted another lawyer.
The payslips had a spelling mistake in a company name and apparently they looked too new for being 14 or so year old (as from HO notes, the file contains only photocopies so I don't exactly how fresh they looked). What I noticed myself is that I apparently worked since I was 11, and with the same NIN that was issued to me about 10 years later, in my twenties. Even British citizens don't get NIN till they are 16.
No. I didn't try to prove they weren't fake, I knew they were just by looking at them as I never gave them to the lawyer.

No i meant you had to prove to the ho otherwise that you weren't complicit with this hare brained scheme. What an idiotic solicitor to be so bumbling about it too. How awful for you

[ian1464]

IN reply to previous advise we are following what Jim has posted and another sol is resubmitting the application late but has included all proof that the lawyer messed up and papers were sent well within time, so it depends on how sympathetic to that BIA is. She has been here 6 years so depends how leniant they are.
Also sol advised she has heard something about current climate in ZImbabwe that HO cannot deport under human rights ground(not too sure on this one yet)
We are obviously raising complaint through Law Society
We are seeing our MP SAturday who just happens to be Michael Howard so if he represents our case it would have some clout I would think.
HAving to pay new sol is going to cost us but hopefully can sue old sol, the new one certaintly thinks we have a strong case. Main issue now is will she be able to stay.