Dependent Visa Refused in 2015 due to Overstay in 2012

[aizazali]

Hey troubled fellowmen,

I am in an awkward situation, because my wife has been refused a Tier 1 Dependent Visa due to the reason she overstayed in 2012 on a Visit Visa. So I need your opinion on my case.

I got my Tier 1 Entrepreneur Visa in April'15.
I got married in June'15.
Applied for Dependent Visa on 10th Sep'15
Got a Refusal on 26th Oct'15

Details of decision are:
1. Passport Entry date is 3/9/12, visa expiry date is 4/4/12 while wife left UK on 10/11/12. So CO said that we have got a hand on stamp and placed it our self.
2. We didn't leave UK Voluntarily as mentioned in Application due to the reason wife overstayed.
3. It is mentioned that you have not required to leave any country but that is not true you overstayed and CO implied that wife was detained and forced to leave.
4. And false information has been presented.

I have been given the right to appeal.

The true story is, wife did overstayed but it was due to misunderstanding and not intentional but it can't be proven. Although it is mentioned in Immigration policies that an overstayed to turn into ground of refusal should be more than 90 days.
Wife left UK voluntarily, therefore the other accusations are baseless otherwise we wouldn't even have got a chance to appeal.

Furthermore, she is applying under a different category now, and I am her sponsor and calling her. Although on the probable cause which has been mentioned is not based on any evidence but a judgment call of the CO and is not material but he has used 320 7(A) that is false representation whether material to the application can be a ground of refusal.

Note: CO did mention the date of actual departure and arrival in the refusal.

I am not very optimistic about the appeal because CO just based everything on his assumption suggesting that 'we might have done' that.

So, what are your thoughts?
Furthermore, think about the worst case scenario that I lose the case and wife gets banned for 10 years, and I get the ILR in the next 5 years.

Will I be able to call her as my dependent or I can't do that either?

Because this is going to tear apart my marriage.

[CR001]

It might help if you post the exact refusal text (without personal information) and also explain the exact dates of the situation in 2012 (actual visa dates entry to UK and exiting UK dates, and date of arrival in home country).

Did your wife fully declare the circumstances and overstay in 2012 in her application? How did she answer the particular question in the form?

The fact that you are 'her sponsor and calling her' makes no difference. Each applicant has to meet the requirements for a visa.

Overstay of this nature is generally only overlooked for spouse of person settled (ILR)/British citizens.

[aizazali]

The Decision
You have applied to join your sponsor in the UK and you have provided evidence of your marriage and that he has extant to leave in the UK to 27/08/2018. I noticed that you were previously issued a UK Family Visit Visa on 4/3/12 and you travelled to UK on 8/8/12. Your passport shows that you returned to your country on 3/9/12. This is the day before your Visa expired. However Home Office record show that you actually left the UK on 9/11/12 and arrived in your country on 10/11/12. I am not satisfied that the Immigration authorities in your country would have such an error whereby they would stamp arriving passengers into the country with a date stamp using using a date of the previous month. In addition to this the date stamp is for the day before your Visa actually expires.

In your application form you stated at Q31 that you have not been required to leave any country, including the UK, in the last 10 years. You also stated at Q32 that you never voluntarily elected to depart UK. However I am satisfied that you overstayed your UK Visa that expired on 04/09/12. I am satisfied that you deliberately sought to conceal this evidence by making a false declaration. I am satisfied that you have obtained the Immigration Stamp of your country to give false information and you did so in order to give the impression that you had not overstayed your UK visit visa.

I am satisfied that false representation have been made or false documents or information have been submitted (whether or not material to the application and whether or not to the applicants knowledge), or material facts have been disclosed, in relation to the application or in order to obtain the documents from the secretary of state or a third party required in support of the application. Therefore your application falls to be refused under paragraph 320(7A). Any future applications may fall to be refused under paragraph 320 (7B).

I have therefore refused your application I am not satisfied on the balance of probabilities that you meet all of the requirements, of the relevant paragraphs of the United Kingdom Immigration Rules.

And this is how the question have been answered.

29 HAVE YOU BEEN REFUSED ENTRY TO THE UK IN THE
LAST 10 YEARS
(FOR EXAMPLE AT A UK AIRPORT OR SEAPORT)?
NO
30 HAVE YOU BEEN REFUSED A VISA FOR ANY COUNTRY
INCLUDING THE UK IN THE LAST 10 YEARS?
NO
31 HAVE YOU BEEN DEPORTED, REMOVED OR OTHERWISE
REQUIRED TO LEAVE ANY COUNTRY INCLUDING THE UK
IN THE LAST 10 YEARS?
NO
32 HAVE YOU EVER VOLUNTARILY ELECTED TO DEPART
THE UK?
NO
33 ARE YOU, OR HAVE YOU BEEN SUBJECT TO, AN
EXCLUSION ORDER FROM THE UK?
NO

[CR001]

31 and 32 should have been answered 'YES' and additional information provided.

So what exactly happened in 2012? What date she actually leave the UK?