family immigration

[journey]

Hi Friend

Backround


I came UK on visitor visa in Aug 99 lateron claimed asylum in Jun 00. I got work permit on the base of asylum in Feb 01. Since then I have been in full time job.


In Oct 01, asylum application was refused and my solicitor made appeal against it.

While my appeal was pending, I married to British citizen in Apr 02.

My stay application on the basis of marriage to British citizen was filed in Jun 02. On the advice of my solicitor, assylum appeal was withdrawn.

Current Situation
Since then I haven't received any reply from home office even after sending couple of reminders. Now it has been over two and half year since we have been maaried & living together. Is there any chance to influnce HO to give reply at earliest? or is there any venue which can be utilised?
I am a professional and had a excellent job spex in my home land but unfortunately I had to apply for asylum in UK.

Even I am eligible for more points than required in HSMS.

Pl provide your specilist comments......

[Kayalami]

Your situation has been covered extensively on this forum so its best to do a search or read historic posts. As a summary:

1. Your asylum application is no longer relevant since you withdrew the appeal - presumably on the grounds that there was no chance of success?

2. You do not have a 'standard' work permit as such - however the UK used to authorise employment for asylum seekers who had waited for more than six months on a decision to be made. This endorsment is either on your SAL1 or SAL2 as the case may be. Note that these documents are since 1 May 2004 no longer acceptable for proof of employment authorisation under an amendment to Sec 8 of the Immigration & Asylum Act 1996. (in your case it would only be an issue when changing employers).

3. I recall a clause in the HSMP scheme that spouses of a person present and settled in the UK are not eligible for HSMP - check with the HSMP Team in Sheffield whether this still holds. IMHO the HSMP scheme is not the route forward anyway since it has challenges pertaining to renewal in addition to a 24 week processing time as well as the requirement to have valid leave to remain for the HSMP FLR application.

4. Your marriage application is being considered on a concessionary basis outside the rules because on the day it was submitted you did not have any leave to remain in the UK. It is Home Office operational policy to review in great detail spousal based settlement applications where someone has overstayed and/ or is an asylum seeker. These includes interviews and/ or home visits by the Immigration Service.

5. Despite 4 it has been some time - have the Home Office had your correct adress all along. Get your MP to help with a progress check - see posts by tdabasah on how to contact your MP at Westminster.

[journey]

Many thanx for the reply......

could you pl let me know...
1. what r the chances in my case to get stay stamp
2. can't I go to HRA to ask them to pursue on the ground of human rights? because we have been married for 2.5 years.
3. I haven't received any letter for an interview or home visit. Do you think still they can excersise these option?
4. Will this influence my aplication that I have been in UK more than 5 years?
5. I forgot to write that I am studying in professional course. Will this influence to my case?

Sorry to ask these many questions......

[journey]

I came to know from below site that if you are spouse of EU citizen then non EU national dones't need work pernit in most of the EU countries. Is it true? Does it mean that if non EU national marry to EU national then non EU national is automatically allowed to work with in the EU?

http://www.oasis.gov.ie/employment/work ... rmits.html

Pl provide your opinion......

[John]

"Journey", given that it is approaching 2-and-a-half years since the spouse visa application was made, certainly take the matter up with the local MP. That comment already made is good advice.

Also, we know of someone who whilst their circumstances are not exactly the same as yours, did get a positive result after about 2-and-a-half years, after pressure from their MP. Hopefully you will end up with the same result.

Your posting today .... yes .. but for example the UK Government declines to recognise that right if you are married to a British citizen. They maintain that British law deals with the situation to the exclusion of EU law. But see last paragraph below.

However, as you are married to a British Citizen, yes you have the right to go with your spouse to any other EU country and work. The only temporary exclusions to that might be some of the new EU countries who joined on 01.05.04, where there might be transitional arrangements in place. But, for example, you certainly have a right for your and your spouse to move to say the Republic of Ireland and live and work there. You would need to contact the Irish embassy in London and get a EEA Family Permit put into your passport. (I mention EU countries above. In fact the right extends to EEA countries such as Norway.)

Hey, where is your passport? With IND while they consider your spouse visa application?

Finally, the UK government issuing you with an EEA Family Permit? Yes, but only after you have exercised your community rights to live and work in another EEA county for at least six months, you become eligible to apply for a EEA Family Permit issued by the UK ... the so-called Surinder Singh principle.

[journey]

John, Many thanks for your reply.
I will go to local MP to request him to write a letter to HO for my case.
Do you have any idea how long does it take to get reply back from HO?

I will keep everyone update on my case.....

[John]

Hi, you are of course not British, but your spouse is. So whilst you say that you will go to see the MP, I think it should be both of you going along to see the MP. After all, your spouse is a constituent of the MP and no doubt on the voter's list.

How long? I don't think there is any clear cut guidance. All the MP can do is to apply a bit of subtle pressure, so that a decision is hopefully given sooner rather than later? The fact that IND will then know that the MP is taking an interest in your case should hopefully produce the required early decision.

[journey]

Hia maty....

Got an appointment from MP office for end of Nov. See wot will be the next. His staff told me to bring all documents submitted to HO.

Keep u update.....
Any suggestions most welcome.....

[journey]

Hi John

I went to meet case worker of the MP today. He was bit negative on my case and said there may be possibility that I will be asked to go back to the country & apply there, which may take 4 months to several years to get final decision.

I think he scared me & my wife.

Do you know how long it will take to MP to get reply on my case?

[John]

Journey, I don't think that there is any guidance that can be given about how long. Clearly the time it has taken to deal with your application is extremely exceptional. All that we might conclude is that if IND know that your MP is now taking an interest that might just encourage them to make a decision in the reasonably near future.

Hopefully the outcome will be successful, but if it is not? Would you and your wife go and live and work in another EEA country for at least six months? You would need an EEA Family Permit from that country. But after at least six months exercising your community rights the UK Government acknowledges that they would need to grant you an EEA Family Permit to enable you to live and work in the UK. (Except in exceptional circumstances such as the person being a danger to national security.)

The UK Government's hand on this issue was forced by one Surinder Singh. More about that Court Case here.

[journey]

Hiya John

Surinder Singh route is an interesting & an attractive article.

I can adopt the route, as I got the offers from Lithuania and Holland. But being head office in the London, i will have to travel every month. If UK consular won't give visa on the basis of my history then my job will be at risk.

It's tough for my wife who is a british to get any job offer in the shorter period.

Hope for the best ..... ready for the worst....

[journey]

Hi John

Got a reply from MP's office that my application is still under consideration and after looked after by one case worker transferred to another.

At least somthing is moving.

trust it won't take much time now.

[journey]

Wishing u & everyone Merry Xmas & a very happy & prosperous new year....

Any reply is yet to be received either from MP office or Home office....

[Chess]

Wishing u & everyone Merry Xmas & a very happy & prosperous new year....

Any reply is yet to be received either from MP office or Home office....

Merry X-mas to you as well - have a jolly good one

[journey]

Dear Friends,
It's more than 1.5 months since visited to MP.

No reply is received yet either from HO or from MP.

Meanwhile I have been receiving good job offers from other European countries and being a spouse of EU citizen I won't face any problem in getting resident permit. They will offer job to my wife also.

Can I apply for new passport because my submitted passport to the HO has already expired in 2004. And apply to relevant EU country for resident permit on the basis of job to me & my spouse.

In the future if necessary then apply for UK settlement visa from relevant EU country.

You valuable advices are appreciated..

[John]

Journey, assuming you are still in work in the UK, why not just stay put and await the eventually outcome? OK, you could get a job in another EU country and would be entitled to an EEA Family Permit, but why not delay that move until you need to?

Worse case ... IND reject your application ... then you can move to elsewhere in the EU .... but if application is successful ... you are saved the hassle of the move.

A new passport? Well yes, I think you need to do that anyway given your old passport has now expired. I think you should contact your country's embassy in London and try to arrange that. Is that possible?

[journey]

It has been becomming frustrating to await for reply from HO.

No one knows that how more long HO will take to decide my case. Delay from HO is restricting my growth & diverting my attention towards negative thinking.

This is only reason I am worried & thinking to move forward rather than stuck.

I think if things are the same for couple of months then I may require counselling.

[John]

Journey ... I think you are totally justified in chasing your MP! Don't let the wait get you down.

[journey]

Dear John,

Good news and bad news on my case.......

Good news is that I got a decision from HO....

And bad news is that I got refusal and I have given 10days for an appeal.....
I met immediately to my lawyer today and signed appeal form to take further action.
I, my wife and my family here are in bit miserable status that how the things will move further.
Now, we don’t want to be disappointed in the court and want to have the best lawyer to take our case before Appellate authority.
I will be grateful if you could give advice on below question:
• What will happen next if I get refusal from Appellate authority
• Pl recommend couple of best lawyer in London
• What will happen to my filed documents, as we haven’t received anything back from HO including my wife’s passport
• How I will justify to my embassy to issue my passport, as I have become illegal immigrant as per HO.

I seek your and other moderator’s valuable advice on my case…..

Many thanks for your all support in my hard time….

[John]

Journey, so sorry to hear the news. Obviously not what you wanted to hear.

Have they given you details in writing on the reasons for the refusal? If so, any clear factual inaccuracies?

[journey]

Reasons for refusal are:
1. Overstayer and illegal entrant at the time of marriage
2. No private life in UK
3. Go back and apply for settlement visa from India
4. Insufficient compassionate circustances to justify a concession on the ground of marriage.

It is also written that I was never given work permit to work in the UK (which is totally wrong, as I have been given earlier).

It is also written that I don't fall in below written concessional ground that on the basis of a marriage if it can be concluded that:
1. the marriage is genuine and subsisting and
2. that it pre-dates the service of an enforcement notice by at least two years and
3. that it is ubreasonable to expect the settled spouse to accompany his/her spouse on removal.

Could you pl let me know your advice on my previous post also....

Many thanks....

[John]

Journey, you clearly do need to get good legal advice ... in order to get answers to your questions ... unless anyone here is prepared to answer?

But you say you have a Solicitor ... and appeal now lodged. But you are asking for the name of a solicitor? Is your current solicitor giving a competent service regarding the issue in question?

Refusal ground no. 2 reads "No private life in UK". Are they doubting that your marriage is real? Are you able to provide quantities of evidence to the contrary? Any children of the marriage?

And the Work Permit .... seems to be an error in their thinking ... one that can be proved quite easily by your solicitor.

In short, don't give up hope. If all else fails, as discussed earlier in this thread, possibilities include moving to elsewhere in the EEA for at least six months, after getting an EEA Family Permit from the country concerned. Then after that at least six months you would seem to be eligible for a UK-issued EEA Family Permit.

Also, go back to India and apply for spouse visa there? And if that does not work, get the EEA Family Permit as just mentioned. I think you mentioned Netherlands etc..

[Kayalami]

Journey,

I join John and the rest of the forum in expressing my sympathy that you have not received a favourable decision. It is unusual for someone in your circumstances to be granted FLR because you do not meet either the rules or applicable grounds of concession. Further the integrity of immigration controls supercedes any aspects of the Human Rights Act (private life angle to your application) under HO policy - this has consistently been applied in case law.

As a by the by you may wish to review my initial response to your post - with all due respect you never had a WP...the HO had a concessionary policy authorising employment for asylum seekers whose claims had been outstanding for 6 months or more. You were authorised to work under this concession which is not and never was a 'formal' WP in terms of the immigration rules, regulations or acts.

IMHO a further appeal is just a waste of time and will lead to more misery and uncertainty- what fresh grounds of evidence can you present? IMHO you will be lucky to get your appeal listed for hearing in 2005. If your funds/ accomodation are not an issue go the settlement route under the immigration rules via an application in India. Alternatively go the EU route but it has challenges pertaining to your spouse establishing themselves under treaty conditions. I suspect you are unlikely to get a family permit/ visa for the relevant EU state through their London consulate given you have no legal status in the UK. This is as per amendments to the EEA regulations implemented by the HO in Jan 2005, that I believe are reciprocal across member states subsequent to a European Court of Justice ruling last year. The sooner you get your UK visa organised the sooner you will obtain ILR and if applicable citizenship.

Good luck

[John]

Kayalami, do you think that the immigration history in the UK will have any impact upon whether a two-year spouse visa is granted in India.

Or is it "just" a question of proving the usual things ..... financial ... accommodation .... "proof the relationship is real" ... that sort of thing ... in order to get the spouse visa?

[journey]

Many thanks John & Kalyani for your advices.
Reply on John's qus.
1. I have most of the things to prove that marriage is genuine and we are living together since marriage, such as joint bank accounts, NHS card, electrol roll, my wife has been nominated in my life insurance policy and pension, photos of holidays, statement can be taken from our friends on this etc....
2.no kids yet

Questions for everyone:
1. We will complete three years of marriage in April 05, won't it support to my case.
2. Breaking family life is against human rights
3. Can't I write a letter to Secretary of Home office & explain the situtation.
4. In worst case if I go back to India, won't they hussal & delay my case, as they do normally....
5. I have joined professional higher education in UK in Nov 04, won't it support me...
6. I married to my wife against the wishes of my family that's why I don't have family support in India..
7. I am professional, well qualified, living in UK for more than 5 and half years and already mixed in British society....

I am grateful for your all supports....