Need Help with 320 (7A) & 320 (7B)

[eyeone]

Dear all,
I am new to this forum and would greatly appreciate some help if possible.

My partner and I live together in Ukraine, and have done since Feb 2007. We had applied for a Visa for her to visit the UK in Sep 2006 and it was rejected on the basis that the ECO did not believe that our relationship existed as stated. With this in mind I moved out to Ukraine and based myself from there.

Now in April 2008 we applied for a visitor visa again, as we wanted to go and see my family with our son, who was born in 2007. I filled out the application form, as I had done previously, and we submitted it with all evidence. Again it was refused.

Now the strange thing for me was that she had been refused under 320 (7A) for not stating that she had been to the UK, and also that she had made an application the the Home Office for Asylum.
This came as a big shock for me as I did not know she had been to the UK and it is something she had never told me. Sadly the story is not so clear cut, as after quite some arguing and tension she told me the truth as to why she had been in the UK. She had been trafficked.

She had originally been trafficked to Greece but was caught and deported in a police raid. She was jailed and deported by train. As soon as the train crossed into Bulgaria, the local mob boarded the train and took her and some other girls off it. She was sent back in to Greece and then on to the UK. When she arrived in the UK she was taken to make an asylum claim. She only put her name on the form and signed it, her escort filled out the rest. Now this is pretty much all there is to say on the trafficking matter and this is not the reason for my post.

Now, when I found this out I asked my partner why she had not told anyone this when she applied at the Visa center. She told me that she had planned to tell them but was never given a chance. She said that she didn't tell me as she thought I would leave her.

Well I was furious and started my own enquires in to why she had been refused a visa without anyone even speaking to her.

I managed to contact the ECM in Kyiv and had some discussion with him via email. He stated that he had looked at the case and stood by the decision of the ECM but we could re-apply for a spouse visa and the visa would not automatically be refused under 320 (7B).
Well that annoyed me even more, why can she not visit?

Now I said it is not clear cut as the ECO wrote on the refusal about my partner making an asylum claim at the HO in Croydon. I understand they cannot ever refer to asylum claims in refusals? The ECM just apologized for this.

Also when the ECO came and gave her what he called his interview, he did this in the public area. My partner was that scared and everyone around could hear, she said nothing and let him go on at her.
The ECM did admit that it would have been prudent to interview my partner in private and did agree that there should not have been the chair at the side of the booth where she was interviewed, and said they had now been removed.

After several emails with the ECM, he said that we should re-apply and he would look at the case and make a note it should not be refused on papers alone.

So we have just done the application and my partner will go for her interview very soon, however I would like some advice.

1) I filled out the application form and just asked my partner to sign it. I didn't know she had been to the UK. So why should she be penalized for this without any inquiry.

2) Is it acceptable for an ECO to refer to an asylum claim in a refusal and then just say sorry it was an accident?

3) Is it acceptable that she be given an interview, given the nature of the circumstances, at a booth right where people are sat. And then for the ECM to say the chars should not have been there and have now been removed.

4) My partner was trafficked to the UK. They should have the original application that will be written in 2 types of writing. And also they should be able to check the address that was given.

5) She never found out the result of the asylum application. She does not know why they told her to do it.

6) She left the UK by herself without any involvement of the government more that 6 years ago.

7) She is willing to help the and tell as much information as she can, if someone will listen.

If anyone can give me some advice on if UK Visas have acted fairly in this case and if they have done something that might give me some leverage with them to at least get my partners voice and mine across to them.

I have all the ECM's comments on email and still have the refusal.

Thank you in advance.

[traveller1973]

It's important to remember that in a visa application, under Immigration law, the burden of proof is on the applicant and not on the Immigration Officer or Entry Clearance officer.


1.Whether you were party to your partner's past is not really relevant in law. The applicant is her, not you, and her history (and therefore credibility) will be tested against the requirements of paragraph 41 of the rules.

2. No mention should be made directly of the actual claim, but previous refused applications to be in the UK can be highlighted, as this undermines the person's 'intention to leave'.

3.Not sure how to answer this, but did you or your partner request an interview in private.

4.There are exceptions to the being refused under 320 (7B) and trafficking does figure on the list.

5. The HO should have informed her of the result, but will not chase someone around the world to inform them. This all depends on what address she gave and whether she was still living there some years/months after.

6.Irrelevant. If she didn't have permission to be in the UK, she is in breach of UK immigration law and again this gives her negative credibility as a visitor.

7.I sympathise, but as long as the ECO has based their decision on fact, the application as a visitor will sink. The fact being that she was in the UK without permission does not show she respects UK Immigration law.

Does this help?

All the best

[eyeone]

Traveller, Thank you for the information provided.

1) Clear that she is the applicant so the fact I filled out the application is irrelevant.

2) Yes, I am not sure of this either. It quite clearly states in the guidelines that no reference t asylum claims must me made as it can have far reaching consequences. Interesting how an ECO can make such a glaring error without issue, but should an applicant have an error on their application then they are penalized severely.

3) No, my partner did not ask to be interviewed in private. She did not know it was possible and there is certainly no mention anywhere that people can do this. I am aware that there is not rule that applicants be interviewed in private, however I would have thought that under the circumstances the ECO would have the sense to do so.

4) Yes, but I am worried about how this is judged and to what length. She did not go to any NGO or Police in the UK. Given how the rules have been I am not sure it would have done any good. However if they were to check with the Greek authorities then there would be a record of her arrest and deportation from Greece, but will this be checked?

5) I am quite sure the HO did inform her, and this is my point. One of the people holding her took her to the office, she did not understand really any English. He filled out most of the form and just told her to put her name on it and sign it. She wrote her name in Russian and was told to say she was from Chechnya. My point is that this was obviously a sham. She was forced to do this, it wasn't something she applied for.

6) Again this is my point. She was in the UK illegally, against her will. Not really sure that this would constitute an intended illegal entry? But not sure if that is taken in to consideration or not.

7) I don't know if the ECO as acted fairly or not. I do know that there are a number of glaring errors that have been made by the ECO and admitted in email by the ECM. However, it seems they can do as they please and make as many mistakes/errors as they please. But should there be any detail wrong with an applicants application they jump all over it. Given this case has extenuating circumstances I would have expected a little more attention.

Some questions had have are relating to the following.

1) I understand that if I apply for a spouse application then it would not be refused just on 320 (7B)?

2) In the Entry Clearance Guidelines 26.17.7 it states that an application is not to be refused if the applicant did not know the representations were false. Given that she cannot read english very well I filled out the form.

3) We have a child and have lived together since Feb 2007. I moved here so we could be together and I could support my partner and our child. It is very likely that I will have to move back to the UK in the very near future. What options do we have, or are there no options after this? If so would that not be against ECHR Article 8?

Thanks again for your support.

Kind Regards

[Frontier Mole]

Really good advice form Traveller.

I see you getting the spouse visa; I think it will be a long hard fight and more than likely an appeal hearing in the UK.

There is no need for UKBA to check out the Greek side of things. That is for you to do and prove the story. Remember the burden is on the applicant.

As for other suggestions about who filled in the asylum application etc etc, there is a general rule, if you assert you have to put forward the evidence to back your assertion.

UKBA will be able to prove she submitted an asylum claim. The rest of the story is of no interest to them. You have to prove the claimed circumstances leading to the asylum claim and how & why she came to the UK.

Forget about trying to unpick the position as it is now; you are unlikely to ever get a resolution. It will take months if not years to sort it out. Accept where you are now, stop looking for blame in the ECO or ECM, it will not get you anywhere.

Stick with the spouse visa and sort out your kids’ British passport application, as I said you will win in the end. Even if you do not come back to the UK and have to renew the spouse visa just to visit at least she will have the ability to do so.

[eyeone]

Frontier Mole,

Thank you for your advice, accepted an understood. I am guessing that the application she currently has in the process will be to no avail. She has an interview on Tuesday and is worried about this.

Should she go ahead, any suggestions on what she should/should not do?

I forgot to mention that my MP has got involved with this and is currently working with the HO and FCO to get a resolution.

Best Regards and thanks for your help, its very much appreciated.

[eyeone]

Another quick question if I may ask.

How can I apply for a spouse visa, settlement, when I live in the Ukraine. I moved here to take care of my family and now currently live and work here. The only visa option I can find if for a spouse of settled person, but I am not settled in the UK at present - how does it work.

For sure I am a UK citizen and can base myself from the UK for work.

Kind Regards

[Frontier Mole]

You said you were thinking about returning to the UK. Do you maintain a home in the UK presently? If the answer is yes then you can still be considered as settled in the UK. You are not domiciled presently in the UK but that is another matter and does not come into play. Even if the answer is no - you are allowed to return to the UK with your family to settle. There are no absolute legal barriers to you doing that.

There is only one real barrier and that is accommodation and maintenance for your family.

If you can show that your wife can be accommodated and maintained in the UK from your resources then she is as good as in. Your child is British by descent in any event.

There is no reason that a spouse visa can not be issued even if you are not resident in the UK. There is only one thing that is important - that you intend to live in the UK as a couple / family.

How do you think married couples who have lived in one country for years traverse the world to their partner’s respective home country to live?

I guess you have applied for another VV? You have paid for it you might as well give it a go. MP involvement means very little these days, the old boys FCO network has gone and pulling a few strings down at the House is a thing of the past. UKBA is inundated with MP letters their value as a means to achieve something is diluted to the point of insignificance.

Unless UKBA want to go out of their way and grant the VV under exceptional circumstances I would not hold out much hope.

Wish you luck.

[eyeone]

Frontier Mole,
Again, thank you for your kind assistance.

I have just been reading through the rules on entry clearance for unmarried partners, and with your comments it is pretty clear for me.

I do not have my own property in the UK but my father would certainly be a able to guarantee we could stay with him until we find somewhere to live, if that would help, in reality I could rent somewhere immediately.
The company I work for would certainly be able to guarantee I had a job to go to, as effectively they only placed me in Ukraine at my request as I needed to be here to support my family and bring up my son. So I still actually work for them. Hopefully this would help too.

I will await the outcome of the VV application and will post the result here, maybe I will get a surprise? However I will prepare to make a unmarried settlement application.

I understand your comments about MP intervention, my boss at work suggested it and the response from my MP was very positive. However if the are inundated with this kind of thing nowadays, like you say, I won't hold my breath on it making any difference.

I don't see a big problem if we can just apply for the settlement visa and it gets around the 320 (7B) ruling. It's a very big fee but a small price to pay for the end result.

Once again, I cannot thank you enough for you priceless contributions.

Best Regards

[Frontier Mole]

Sorry - I read partner as spouse. Should have asked....

Unmarried partner route requires two years living together as you know and a fair chunk of evidence to go along with it. If you are thinking about marriage I would marry and go down the spouse route. It is a far easier way and given the history I would suggest it is a far far better route.

If marriage is on the cards:
Marry in the Ukraine
Return to UK with current employer
Set up home
Spouse visa app
Happy families