FLR(M) rejection because of overstay

[ginoT]

Hi, my partner (she's Russian) had her FLR(M) application rejected soley on the basis that she overstayed her previous student visa. The reason for the overstay was stated on the application (we applied late because we requested a written update/guidance from the UkBA following the Law Lords rulling on the COA scheme + the actual COA took ages to come through). We got married immediately after we received the COA. By this time the student visa had expired (by about a month). The relationship is completely genuine (3 years) and well documented in their databases following numerous other visit visa requests 'n all where I've consistently sponsored her as my partner.

The refusual letter says she has no possibility to appeal and that she should leave the UK more or less immediately.

We are furious of course for all sorts of reasons which I won't bore you with now.

Question is does she really have to go back to Russia or is there some way of appealing the decision? She's loathe to the idea if applying again (with additional fees etc) at the Moscow embassy which is a Mickey Mouse operation itself.

btw - I've had a look on the immigration rules site and for 320(7B) says that overstaying is an automatic refusal EXCEPT in applications of 320(7C) which is for applications where the applicant is applying as a spouse. So this implies that refusal (purely based on overstaying) was invalid

thanks for any advice!

[vinny]

Unfortunately,

Also, there is no right of appeal against refusal if the applicant does not have leave to enter or remain at the date of application. This is because it is not possible to vary leave that a person no longer has. An out of time application will never attract a right of appeal under section 82(2)(d).

If she had applied for the COA before her leave had expired, then she may win a JR due to the delay with issuing the COA. However, this may be expensive. It may be quicker and cheaper just to return and apply for a spouse visa.

[ginoT]

Hey Vinny, tx for response. I have to say I'm a bit confused as there seems to be conflicting info on this. The rules I had seem to exempt married couples from the overstayer clause + the document you sent seems dated with regards to July 08 ruling. The legal reference for refusal was 284(i) http://www.ukba.homeoffice.gov.uk/polic ... _partners/. This basically says she must have a valid visa (longer than 6 months) at the time of the application but this contradicts that other section I found. very confusing

fyi we did apply for the COA before her visa ran out. We would have replied even earlier if the Home Office bothered to reply in time to the record mail correspondence I sent to them

Personally I'd hate to apply again from the Moscow embassy. They have been a nightmare with me liaising with MP and giving the ambassador grief as well. So our history their is not great.

How do we go about a Judicial Review and how long does it take?

tx

[vinny]

Basically, she did not satisfy 284(i) because she had applied for FLR(M) out of time. 320 refers to refusal of entry clearances and not is not applicable to FLR applications.

Consider contacting my knowledgeable friend or an OISC advisor for further info/assistance.

[Wanderer]

It was a correct refusal I'm afraid, there is no way of switching in-country without valid LTR (unless under EU rules I think - which don't seem to apply here).

I agree with Vinny, much easier to return home and apply from Moscow, fighting it via a JR is likely to run into tens of thousands of quids and many years in limbo with no right to work etc...

A visa from Moscow Consulate would be a walk in the park compared to that. Remember refusal rates from Moscow are something like 2%, her overstay would not be counted against here for sppuse visa app plus she could visit home, family etc - make something positive out of it!

[ginoT]

EU rules don't apply here? I thought we signed up to the European Human Rights treaty?

I will contact an OISC person but I'm horrified that they allow people to submit applications and even with a section asking them to explain why the application is late. Surely they should warn people that if they're an overstayer they shouldn't even bother with FLR(M)?!!

So let me get this straight coz legal language ain't that user friendly. If you're an overstayer applying from OUTSIDE the UK your previous visa overstay will not count against you?? BUT if you're applying from WITHIN the UK the overstayer cannot apply, period?? Who the hell is making up this BS?

Getting the visa in Moscow costs 600quid.... and they say settlement visas can take up to 3 months! Forester got hers + only had a 6month turnaround (our cases are very similar btw).

Can you give me a flavour of what the JR is really like? how to start one? Also my chances of me getting my costs back if I win?

appreciate the help

[Wanderer]

EU rules don't apply here? I thought we signed up to the European Human Rights treaty?

I will contact an OISC person but I'm horrified that they allow people to submit applications and even with a section asking them to explain why the application is late. Surely they should warn people that if they're an overstayer they shouldn't even bother with FLR(M)?!!

So let me get this straight coz legal language ain't that user friendly. If you're an overstayer applying from OUTSIDE the UK your previous visa overstay will not count against you?? BUT if you're applying from WITHIN the UK the overstayer cannot apply, period?? Who the hell is making up this BS?

Getting the visa in Moscow costs 600quid.... and they say settlement visas can take up to 3 months! Forester got hers + only had a 6month turnaround (our cases are very similar btw).

Can you give me a flavour of what the JR is really like? how to start one? Also my chances of me getting my costs back if I win?

appreciate the help

1. EU immigration law doesn't apply since you applied under UK immigration laws. You cannot apply under EU immigration laws unless you are exercising a treaty right but living or working in another EU state and therefore are unable to use UK laws or the other state laws.

2. The rules regarding overstayers is in the immigration rules, to fair to the UKBA ignorance of the law is no defence, sorry but it IS up to you to ensure you comply. Harsh I know but that's a basic tenet of the law in any country.

3. Yes, basically if you have to legal status in the UK you cannot switch unless under extreme compassionate circumstances or if you have children together.

4. The case u quote concerns Kingston, a notoriously difficult place to get a visa from. To be honest I don't know what Moscow is like now but Eburg was quick and Kiyv is within 48 hours.

5. No idea, other than what's been posted in these fora, it's a three year battle with lots of expense and no guarantees. Go for it on principle if you must but really, principles are expensive things to have! Have a search here...

[jei2]

EU rules don't apply here? I thought we signed up to the European Human Rights treaty?

I will contact an OISC person but I'm horrified that they allow people to submit applications and even with a section asking them to explain why the application is late. Surely they should warn people that if they're an overstayer they shouldn't even bother with FLR(M)?!!

So let me get this straight coz legal language ain't that user friendly. If you're an overstayer applying from OUTSIDE the UK your previous visa overstay will not count against you?? BUT if you're applying from WITHIN the UK the overstayer cannot apply, period?? Who the hell is making up this BS?

appreciate the help

You're surely not suggesting that the Home Office takes money out of its own coffers by telling us all the rules?

My interpretation is that an applicant who applies from outside the UK is applying under the rules, but as someone who had previously breached them. (This is where the you-scratch-my-back exemption comes in). Whereas someone who is applying from within the UK is applying while still in breach of the rules.

So as a nice little PR exercise, if the UK had only 20 overstayers and 15 left to re-apply successfully under the rules, the Home Office could say that it had reduced the number of overstayers by 75%.

Not quite the same however if they're still here clogging up the backlog...

[ginoT]

yup priniciples can be painful quality to have. But £600, a Moscow rejection, up to a 9month turnaround before an AIT hearing, and being seperated for that period of time would be exceptionally painful too.

On the JR, are you sure it's a 3 year process? Again Forester got theirs done from application refusal through to JR verdict in 6 months. Remember this is a 2008 JR so recent in terms of turnaround times. If it's a 6month wait we can handle it. 9months is max. Any more she'd go back and risk it with the embassy

Any suggestion of how to take a look at recent spouce JR experiences on this forum for a flavour of what's involved?

[Wanderer]

yup priniciples can be painful quality to have. But £600, a Moscow rejection, up to a 9month turnaround before an AIT hearing, and being seperated for that period of time would be exceptionally painful too.

On the JR, are you sure it's a 3 year process? Again Forester got theirs done from application refusal through to JR verdict in 6 months. Remember this is a 2008 JR so recent in terms of turnaround times. If it's a 6month wait we can handle it. 9months is max. Any more she'd go back and risk it with the embassy

Any suggestion of how to take a look at recent spouce JR experiences on this forum for a flavour of what's involved?

Think the case u cite involved a child - the courts are always loathe to send a child back over a certain age or split a family with a child and maybe with this case there wasn't an appeal from the HO and on it drags....

However, good for u if u fancy the fight!

Udachi vam, dood!

[ginoT]

Thanks! - looks like we'll need the udachi ("luck" for all you non Russian speakers) after all

our plan is as follows: We've got a solicitor to write a "reconsideration" letter. Ie it asks the UKBA to reconsider their refusal + ask them to provide further details on why they did not incorporate the reasons for overstaying in their refusal. It will also threaten them with a JR should they decide to maintain their stance on all this. i will scan the letter & post it on this site once all this circus has come to end and we've got our visa as well.

Should it go down the JR route proper I'll put up updates on that too if there's anything worth talking about.

One last question for the time being, is there any point getting my MP involved? From experience they don't seem to carry any weight when dealing with the Home/Foreign Office

[ginoT]

As an update – I instructed the same solicitor who did the Forester case who in turn wrote a strong worded letter to the same immigration officer requesting a reconsideration quoting bits of the Forester ruling + others. He charged me £250 for this. Today he received a reply saying the application will receive a fresh appraisal from another officer. In his eyes he reckons this is simply a face saving measure before issuing the visa. If this goes to a Judicial Review he’ll charge me an additional £1500 + £500 for the barrister.

My advise for anyone considering a Judicial Review is to always get a shortlist of lawyers who have done a similar case before at Judicial Review or someone recommended to you. If you’re short of cash you can always write the reconsideration letter yourself assuming you’ve done the legal research before hand. A good lawyer = a lawyer who knows the rules + CASE LAW. Most just know the rules

I’ve researched my case extensively reading through all appropriate cases and can safely say I think I know this part of the law better than most so called “professionalâ€

[Casa]

Are you sure that the HO will have to pick up the tab for your legal fees if they lose??

[ginoT]

100%. I'm talking about a Judicial Review here, not just any old appeal. Losing side pays costs. I think legal aid might be possible but haven't looked into the details on that yet. I'm a higher rate tax payer so i suppose I wouldn't be eligible

Current plan is give the HO 1 more month to give an answer, if they don't we'll initiate the Judicial Review process at which point if they decide not to proceed to a tribunal & issue the visa we can request they pay costs. It'll still be cheaper for them than actually going to the court with barristers 'n all tho. If they get back to me sooner with the visa then we've just lost the £250 solicitor fee & they pay nothing so there's an incentive for them not to allow us to submit a request for a JR.

If it wasn't for the sake of lost time i'd relish the opportunity to go to court on this case. I've called up the JR admin office and they say if there are no appeals after the JR verdict then it shouldn't take longer than 4-5 months all in

[jei2]

Sorry ginoT, but I think you're being overly optimistic with the potential JR.

You've said yourself that the application for the COA was submitted late because you were waiting for guidance from UKBA.

The Forester ruling related to an issue with the applicant's bounced cheque for an in-time application (and in fact I believe was a contributory factor in Jacqui Smith instructing caseworkers to be more lenient with students in similar circumstances).

Unless I'm missing something in your original posting I think if your wife gets her visa it would be on a discretionary basis because you've been willing to fight for her. This is because your argument appears to be made more on moral grounds than on legal ones, and the ramifications of a successful JR outcome for an application which was knowingly submitted out of time would mean that a whole new raft of overstayers could benefit from your success.

I just don't see the Home Office letting that happen.

Having said that, it's always good to challenge if you feel strongly enough about your case. Good luck all the while, and please share the outcome.

[ginoT]

jei2, I hear you. the bounced cheque was something that worried me initially (ie the reality was that application was made in time). But if you read the final concluding parts of the ruling carefully the fact that the application was originally made on time seems to have little if any significance. What the judge stresses is that other than the final valid application being submitted late the applicant was an otherwise a perfectly law abiding individual. Reading his concluding paragraphs, along with other JRs that stress the need for a flexible approach, the message seems to be one that underlines the need for a sensible approach to implementing the “rulesâ€

[jei2]

Trust me, I'm right behind you on this one. You make some interesting points as well and as you've pointed out, the Home Office are in a bit of a kerfuffle over your secret weapon .

I can't see them continuing with a scheme for which they (shock, horror ) can't charge for and for which !! they might have to issue refunds.

They do appear to be unsure of their ground in your wife's case. Here's hoping common sense will overrule bureaucracy...

Re the points you raised, I will have a closer look again at the Forester ruling, thanks. Could be very useful.

Good luck.

[Swan]

Hi, my partner (she's Russian) had her FLR(M) application rejected soley on the basis that she overstayed her previous student visa. The reason for the overstay was stated on the application (we applied late because we requested a written update/guidance from the UkBA following the Law Lords rulling on the COA scheme + the actual COA took ages to come through). We got married immediately after we received the COA. By this time the student visa had expired (by about a month). The relationship is completely genuine (3 years) and well documented in their databases following numerous other visit visa requests 'n all where I've consistently sponsored her as my partner.

The refusual letter says she has no possibility to appeal and that she should leave the UK more or less immediately.

We are furious of course for all sorts of reasons which I won't bore you with now.

Question is does she really have to go back to Russia or is there some way of appealing the decision? She's loathe to the idea if applying again (with additional fees etc) at the Moscow embassy which is a Mickey Mouse operation itself.

btw - I've had a look on the immigration rules site and for 320(7B) says that overstaying is an automatic refusal EXCEPT in applications of 320(7C) which is for applications where the applicant is applying as a spouse. So this implies that refusal (purely based on overstaying) was invalid

thanks for any advice!

quick question ginoT

how long did it take the HO to send you the rejection after you applied for the FLR(M), i mean how long have you waited for the outcome of the application ?
i am just gathering information before i apply for my husbands FLR(M)
thanks

[ginoT]

my case isn't standard as we applied AFTER her visa ran out (ie she wasn't here legally). In those instances the HO say they need 90 days for 90% of that group of applications. Not surprisingly we ended up waiting something like 89 days before we got our response. We had a similar experience with the COA where we waited for most of their usual maximum waiting time (think it was 45 days).

However, if your spouse is here legally then according to their waiting times you shouldn't expect to wait more than 1 month.

I can't stress enough researching the rules & their procedures on immigration control - if you don't have the time to do this (as it can take a while) go to a good immigration lawyer. PM me and I'll forward you my solicitor's details if you want (I don't think he'll charge more than £500 (probably less) to review an application + supporting letter)

best of luck

[bototo]

ginoT, all the best. They need - we all need - someone to take them on sometimes to demonstrate how ridiculous they can be. You are right about the research required. I'll go further: Even if you have a good solicitor it's still up to you to do a lot of research and push your solicitor in the right direction. I've learnt through experience. Monitor them, ask the right questions, read their drafts before they send any letters off on your behalf.

Vinny, sorry to go off-topic but I followed your link to your friend's site. Would you pass on a tip. If I were looking for legal representation I wouldn't use him. Here's why: The website looks professional, says the right things and on the face of it does everything just right. Then it goes and loses it all by sticking a link at the bottom of the page promoting printer cartridges.

That's cheap, that's tacky and it's costing them business. A firm of solicitors willing to comprise their doorway with £10 p.m. ads for second tier SPAM - the highly competitive printer cartridges, dating services, credit card ads etc are not far behind the real baddies like Ho0dia and V1agra - suggests they are desperate for money (even if the link is a "pro bono" ad to help a friend).

[Swan]

my case isn't standard as we applied AFTER her visa ran out (ie she wasn't here legally). In those instances the HO say they need 90 days for 90% of that group of applications. Not surprisingly we ended up waiting something like 89 days before we got our response. We had a similar experience with the COA where we waited for most of their usual maximum waiting time (think it was 45 days).

However, if your spouse is here legally then according to their waiting times you shouldn't expect to wait more than 1 month.

I can't stress enough researching the rules & their procedures on immigration control - if you don't have the time to do this (as it can take a while) go to a good immigration lawyer. PM me and I'll forward you my solicitor's details if you want (I don't think he'll charge more than £500 (probably less) to review an application + supporting letter)

best of luck

Thanks for the reply gino, i know about your case as i read it carefully, and the reason i asked is because my husband would be in a slightly similar situation (his residence card being revoked after divorcing an EEA national, i have another post detailing my case), we were told we could send an FLR(M) while he is in the appeal reconsideration process, but the HO might consider him an overstayer..which is why i wanted to know how long they take in special cases like this..
anyway, it seems that he has more chances getting his visa from outside the UK, it's frustrating to be waiting for something you are not sure about ...i wish we could fight the way you are but we have been in this painful process for a year now and we are both exhausted ...so we are going to sacrifice few months of our lives apart to get things sorted for good hopefully!

wish you all the best with your battle !
keep us posted

[shandave2001]

Hi gino T

Any development or update on your Judicial Review journey with the Home Office?

[shandave2001]

So things have not gone as you thought. It seems second case worker refused your case. Therefore to transfer your case to second case worker wasn't to save face. And you ended up paying £250 to your solicitor just for one magic letter which didn't prove to be magic enough?

[ginoT]

sorry have been away from a bit - patience guys!!

Recap: the HO said they would reconsider and we still haven't had an update. Solicitor wrote a letter yesterday to them saying over a month had gone by with no response from them which we thought was unacceptable

We've given them till next week and if we do not receive a response we threatened them with submitting the Judicial Review documents at which point we're in demanding costs territory.

The original reconsideration request letter was a necessary step (as stipulated by the Judicial Review procedure) before escalating things. No £250 quid wasted. It was essential even if we proceed to a full blown JR

Patience, patience

btw, I'm happy for additional refusal as I think we'll win in court anyway and give them a massive nightmare to deal with thereafter with implications related to COA fees to reimburse etc and questioning the whole policy itself. Go on HO - I dare you all for the sake of one perfectly genuine application

[shandave2001]

Hi gino T

Nice to hear from you. That is correct according to Judicail Review prtocol a prehand letter is required giving the other side 14 days.

I agree HO is on very waek grounds in regard to COA. They issued you late and sucked your fess too. At least people who have applied COA from 30th July 2008 ought to be refunded their fees ( the case of Baiai by House of Lords: 30th July 2008). It is likely High Court will issue a mandatory order, or HO will back down before the full proceedings start, as they did at fees issue (they were taken to High Court and before the full peroceedings started they backed down and requested few days to announce fee suspension and eventually announced on 9th April 09).

ginoT, be aware apart from costs, you can claim damages as well under Judical Revirew. Judicial Review is not delatory only. Therefore make list what damges have been caused because of COA delay (holiday, any booking and of couse distress and inconvenience). And also what damages have been caused by delay in your current application.

Now one thing I am concerned which is HO is not going to use delay tactic by delaying decision on your reconsideration. All the best. Keep us updated.