Spouse visa application refused; advice on appeal...

[O2017]

Hi everyone,

I applied for an entry clearance as a partner of a British citizen. My application was refused on two grounds on two grounds; overstaying and breaching the conditions attached to my leave. I moved to britain as a child, and stayed there for 12 years (I was granted a 10 year visit visa, and had overstayed on 4 separate occasions). I met my wife in 2014, the 10 year visa expired the year after, and I moved out of UK this year, without the home office having any knowledge of me overstaying or forcefully sending me out.

During the 10 year period, I undertook studies and gained two degrees at a time when my immigration status didn't allow me to do so. Thus, although I've met all the other requirements for a spouse visa, my application has been refused for 'contriving in a significant way to frustrate the immigration rules'. It may be important to state here that I have neither been involved in any criminal activity, nor benefitted from public benefits, during my stay in Britain. I also did not sought or partake in any form of employment during my stay in Britain.

The refusal letter says that although my Art 8 right was considered, based on the art 8(2) qualification, and the balance of probability, my application has to be refused. The letter also states that I can appeal and I am looking to explore this option. Thus, I will like your input on the following issues:

*Given that I meet all the major requirements for a spouse visa, and my application was refused on my previous immigration history, do I need to submit additional documents with my appeal?

* As the ECO already States that my art 8 right has been considered before a decision was met, what will my grounds of appeal be? Should I provide further evidence of family life in UK? During my 12 year stay in UK, on a visiting visa, I managed to distinguished myself in several fields, especially in academia, and currently hold affiliations with top research institutions in Britain. Will it help my case to provide documents that support this?

* With the help of a good lawyer, do you think that this issue can be resolved without going on appeal hearing? Having to wait for almost a year is quite worrying.

[Obie]

I believe given when you have said, a refusal under 320(11) seems harsh. It cannot be used for overstaying alone. There must be other aggravating circumstance of the case, for it to hold up.

[O2017]

Thanks for writing back. I was refused not for overstaying alone, but also for undertaking studies (undergraduate and postgraduate) during my stay, which my visa didn't permit me to do.

I am worried that the appeal will go to hearing, and i will end up waiting for a year. Would you advice me to include additional documents in my appeal? I'm afraid i can't give any reason for overstaying and studying with a visiting visa other than saying that my intention was to settle in the UK. Should I get my wife's MP involved?

[Tamandua]

Yes, you should provide further evidence of family life in the UK.

Can you provide any reason for not having returned to your country to apply for a tier-4 visa?

[Casa]

What documentation did you submit to the University which enabled you to study while in the UK as a visitor?

Were the University fees paid as a home or overseas student?

[Obie]

A good question Casa. Although OP states he did not receive Public funds, but student loans are not classified as public funds.

Even though the University ought to have checked, it is hard to envisage how studying without leave will engage that provision.

Although working without leave may engage it, but all circumstances will need to be taken into account, including the fact that the individual came to the UK as a child, and if he was paying international fee, then it could well be argued, that he was actually helping the state.

[pixelrage09]

Sorry to hear about your refusal. As Obie has stated, it does seem harsh to refuse you under 320(11) without aggravating circumstances. Have you ever received any tax credits or NHS care?

And could you also post a detailed timeline of your application.

[Casa]

It may be important to state here that I have neither been involved in any criminal activity, nor benefitted from public benefits, during my stay in Britain.

[O2017]

Hi everyone,

Many thanks for writing back. I went to UK as a child. Attended a school then proceeded to university, where I got two degrees. I did not receive student loan, I paid the fees with my own money. I have never received any form if benefit and although I was registered with NHS, I paid for the only serious treatment received. I didn't work throughout my 12-year stay and didn't receive any tax credit. But (and please correct me if I'm wrong) I don't even think it's important if I worked or received benefit at this point in time, given that my refusal was based on the fact that l overstayed (and undertook studies). The refusal letter doesn't mention anything about benefits, or student loan or NHS. Can HO reconsider new grounds for refusal when considering an appeal?

Can you please advice on if to send additional documents to highlight family life in my appeal, or just reiterate everything I said in actual application, or try to negate the refusal by quoting the law (I.e. there hasn't been any aggravating circumstances in addition to overstaying or studying). Also, should I get my wife's mp involved?

My timeline:

Online application submitted: 5/4/17
Biometric completed: 13/4/17
Documents submitted: 20/4/17
Documents sent back: 7/7/17
Decision (refusal): 10/7/17
Passport received: 14/7/17
NHS refund: Pending

[Casa]

You haven't responded to my question regarding documentation submitted to the University to enable you to study.

[O2017]

@casa is this to satisfy your personal curiosity or assist you in providing a relevant advice/solution to the current problem? The refusal letter says I was refused, not because ice provided questionable documents to any university, but because I undertook studies when my visa didn't allow me to do so

[Obie]

Perhaps my colleague is concerned that the University may have shared information to the Home Office about you, which empowered them to take this course of action.

Giving the circumstance and your entry as a minor, I found it hard that the Home office will punish you for pursuing studies when many 18 years without leave are in colleague doing A level.

[Casa]

@casa is this to satisfy your personal curiosity or assist you in providing a relevant advice/solution to the current problem? The refusal letter says I was refused, not because ice provided questionable documents to any university, but because I undertook studies when my visa didn't allow me to do so

I don't have the time to only post to 'satisfy my person curiosity'. This to understand how you were accepted by the University when you were not legally resident. It may be pertinent to any appeal and as fellow Moderator, Obie has commented, is a 'good question'.

Edit: Pipped to the post by Obie.

[O2017]

Thanks. I was able to enrol by showing utility bills cards and also my nhs card. I consider myself fortunate, I must say

[Obie]

Bearing in mind the caselaw, the authorites and guidance on this matter, I am of the view that it was not open to the officer to invoke this circumstances you have mentioned.

I think what might have got them agitated was the premeditated action in coming to the UK with the visitors visa to pursue this course.

If you were an overstayer here, and then undertook the course, then it is different, than if you were going in and out with this visa, whiles pursuing a course of studies.

For example, if a person has been living here for 10 years, came in as a visitor and then overstayed, that person will be treated differently from a visitor who over the 10 years was coming in and out with the visitors visa and undertaking work.

[Casa]

Overstaying 4 times during the 10+ year period can't have helped, as it would be assumed that you entered each time under false pretenses. i.e not as a genuine visitor.

[O2017]

I did not leave the UK when I was undertaking my studies. I overstayed during the course of my studies. Basically, I moved to the UK as a child in 2005. I enrolled in school straight after. Between 2005 and 2007, I travelled back to Nigeria, on several occasions, while still in school. I finished college in 2007, got an admission to study in the US, went to Nigeria to apply for a student visa, was refused for no reason. I applied for university in UK through the UCAS system in 2008 and was admitted, but I wasn't too sure if I wanted to attend university in the UK, and I was so scared to go back to Nigeria, to apply for a UK student visa (tier4), given that the US had declined my student visa application. I took a last minute decision to accept my uk university offer and commenced a degree on law in 2008. Between 2008 and 2013, I didn't leave the UK (my degree was from 2008 till 2011). I went back to Nigeria in 2013, because I got an offer to undertake a master's degree in law in the US. I had to go there to apply for a student visa. Once again, I was refused a student visa, for no apparent reason. It was heartbreaking. I came back to UK in 2014 with the intention of visiting the friends and family members. I met my wife a few weeks after. We began a relationship and it was at that point I knew that I wanted to settle in the UK. I enrolled for a second degree (master's) in that same year (2014). Finished the degree in 2015 and moved in with my wife. I proposed to her in 2016 and voluntarily left the UK for Nigeria (for the first time since 2014) in February 2017. We got married, then filed an application in April. I am not proud or happy that I undertook studies when i was not allowed to. I did so because of my passion for knowledge. It may suffice to state here that my 12 year stay in the UK brought about significant hardship to me, especially because I chose not to work or receive benefits. I had no NI number, drivers license etc

Like I said previously, we meet every other requirements, but the 'overstaying and undertaking studies'.

Further suggestions will be much appreciated

[Obie]

I am not judging you, I cannot in good conscience do so, when as a human being I am not perfect. It will be hypocritical to do so. No human is perect. We can only aspire to be.

I am merely trying to articulate the law in a written format for you.

Some of what you said is slightly incriminating, and I can only hope it was not mentioned in the application form, as Home office will seek to use it.

If you say, you were in Nigeria after the US visa was refused, then you got admission, the question will be why did you not apply from Nigeria, before you came back.

If the officer don't know that history of things then fine.

What you have to be mindful of, is a view taken that there was pre-meditation,before you set up coming to the UK for your course.

[O2017]

Thanks again Obie. On coming to the UK for both degrees, my intention was to visit and not undertake university degrees. My admissions were only granted after arriving in the UK. I agree with you that the information provided in my application may have been incriminating. I was concerned that failing to disclose everything may revoke my chance of appeal. I regret not using a lawyer, but have no choice but to use for my appeal. My wife is going to see one tomorrow. I will tell her to raise the issues you've touched on.

Once again, thanks Obie.

[Obie]

It matters not what you tell me , what matters is what you put in your application and representation made, what inference can be reasonably drawn from it by a judge, and what you set out in your application.

In my experience ECO manager don't tend to overturn Section 320(11) decision on review, so you must brace yourself for the Long haul, it may go on for well over a year. If you want to maintain your familial relationship, you may need to consider the option of relocating to other EU state with your wife, or she can move to your home country, until after resolution.

[pixelrage09]

It matters not what you tell me , what matters is what you put in your application and representation made, what inference can be reasonably drawn from it by a judge, and what you set out in your application.

In my experience ECO manager don't tend to overturn Section 320(11) decision on review, so you must brace yourself for the Long haul, it may go on for well over a year. If you want to maintain your familial relationship, you may need to consider the option of relocating to other EU state with your wife, or she can move to your home country, until after resolution.

This is one of the things that makes sense for people that face refusal, but wouldn't you need to be employed making GBP 18,600 even if you were to move to an EU country to maintain the financial requirement for the appeal?

[Obie]

FInancial requirement needs to be met at time of application not beyond.

[taffet87]

One other matter that may come up is that it seems you convinced the university that you were a home student (via NHS) for both degrees. This means you benefited by tens of thousand of pounds at the expense of the uk tax payers and is likely to have been one of the reasons for refusal and may be raised on appeal by UKVI. International fees used to be way higher compared to home student fees back then.

Did you ever receive anything beyond GP appointments from the NHS as well?