Student Visa Refused - Should we appeal? Help!!

[mzungu]

Hi Everybody

Don't know if anyone can give us some advice on our situation as we are in a bit of a jam!!! Any advice would be much appreciated.....

My girlfriend has just been refused a further student visa (3rd consecutive) to study here. The reason given by the Home Office was that she has not attended her course regularly and did not submit enough evidence of exams/certificates gained whilst on the course.

On the refusal letter it gives her 10 days to appeal.

What would our chances be of delaying the deportation process by doing so?

My feeling is that our chances of appealing and winning against this are slim bearing in mind her low attendence and the "unprofessional" nature of the college which she was attending.

We had already been looking at getting married and her refusal to get another student visa is likely to mean that we do this sooner rather than later

-Will the fact that she has recently been refused a visa prejudice against us when we apply for her spouse visa following the wedding?

We will be going to Kenya (her home country) to get married.
Apart from her recent visa refusal, in our favour we have evidence of a genuine relationship (shared tenancy agreements, bills etc), a job offer for her when she returns to the UK, many family/friends prepared to give references supporting our relationship and earnings which would financially support both of us if necessary.

There is a further complication, however, I am still waiting for my divorce to come through from Spain (I am British but was married to a Spanish woman) I am told by my hopeless lawyer over there that it should be resolved in a few weeks - in Spain this could mean 2/3 months!

Do you think we can realistically "coast along" for a few months until my divorce comes through and we have everything prepared to get married?

Do we run a serious risk of her getting actually deported (or more worryingly held in a government prison camp)? -Or would that take a longer period for them to organise?

I suppose we can expect some tough questioning regarding her overstaying her visa when we apply for the spouse visa.

If anyone can help us it would be much appreciated as the main thing I want to ensure is that we can stay together (in the same country!) and also avoid her getting taken to an immigration holding centre prior to deportation!!!

We would be SO grateful for any light anyone can shed on this.

Many thanks

"the mzungu"

[John]

Do you think we can realistically "coast along" for a few months until my divorce comes through and we have everything prepared to get married?

The advice must be .... she should not overstay! She is only legal up to the stated expiry date on the latest granted student visa, or if the application for the new visa was made prior to that stated expiry date, until the time left to appeal against that refusal will expire.

I suppose we can expect some tough questioning regarding her overstaying her visa when we apply for the spouse visa.

Don't go down that route .... book the flight now!

One alternative to getting married in Kenya would be for her to return there and then apply for a fiancée visa. It is possible for these to be issued prior to the sponsor ... you ... being divorced but you will need to produce firm proof that the Decree Absolute .... or its Spanish equivalent ... is imminent.

Armed with a fiancée visa in her passport she could return to the UK and then get married in the UK.

In any case .... spouse visa .. fiancée visa .... you will need to compile an "evidence folder" showing that certain tests are passed. Financial ... accommodation ... "evidence of contact". Have you started preparing that?

[Chess]

Mzungu - Habari Yako

It is best to go the Spouse Route and getting married in Kenya

Good Luck Mzungu!!!

[mzungu]

Hi John

Thanks for the swift reply to my post!

We are currently gathering everything together in terms of documentary evidence of our relationship together. I feel (and I do not claim to be particularly knowledgeable on this) that we have a fairly good amount of evidence to support our application (tenancy agreement -in both names-, phone bills showing ridiculous levels of calls to each other, my work contract showing annual salary) amongst other things. I doubt this counts for much but my family and various friends who know us well will vouch for us in writing. Also my girlfriend can also obtain an offer of work from her current workplace and they would be happy for her to continue working there.

The problem I see with producing "firm proof that the Decree Absolute .... or its Spanish equivalent ... is imminent" is that everything in Spain is so INCREDIBLY slow and bureaucratic, I could quite conceiveably wait as long as the divorce itself just for confirmation of this from the court. I do not know if confirmation from my lawyer that the divorce is in progress is acceptable?

If we cannot get her back to Kenya immediately (due to the cost etc..)what then? (We have blown quite a large amount of money on her college, visa fees etc. which have now turned out to have been money for nothing apart from this there has also been my lawyers fees in Spain which have had a financial impact on us.) I would suppose they will view any delay in returning when required to more harshly when assessing her viability for the spouse/fiance visa?

I would hope to have all of this resolved as soon as possible and if she/we have to go to to Kenya sooner rather than later so be it, but I really don't know how soon we will realistically be able to organise this for...

Many thanks again for your advice on this

[Wanderer]

She is only legal up to the stated expiry date on the latest granted student visa, or if the application for the new visa was made prior to that stated expiry date, until the time left to appeal against that refusal will expire.

John , it is fair to add here that the above is true only if she is still studying?

In other words she mustn't stop attending college and treat the student visa as a work/visitor visa?

Steve

[Smit]

Jambo mzungu,

The only way of delaying your girlfriend's removal from the UK would be to lodge an appeal anyway (even though there is very little likelihood of success) against the refusal within the 10 days period.

This way, she will still be legally in the UK pending determination of the appeal. This will give you guys some time to prepare for the next course of action and hopefully your Spanish divorce will come though within this time.

Until your decree absolut comes through, you cannot apply for a fiancee or spouse visa for her. Other option is for her/you guys to go back to Kenya now and enjoy the sunshine until your divorce comes through and prepare the supporting docs required for the spouse/fiancee visa.

S

[John]

Until your decree absolute comes through, you cannot apply for a fiancée or spouse visa for her.

Clearly a spouse visa cannot be applied for until the couple are married, which means the previous marriage must have ended.

As regards fiancée visa, where the relevant marriage is just about the end, and that can be clearly demonstrated, it is possible for a fiancée visa to be applied for and granted.

[mzungu]

Thank you John and Smit for your comments......

I saw elsewhere on here the following quote on a similar theme.....

"Overstaying not usually a problem where a return to the UK is in a category leading to settlement (CLS) - this includes a visa as the spouse of a settled person, work permit holder, HSMP etc. "

Can anyone clarify if this IS the case? How heavily does this weigh on spouse visa applications when being processed - if all other requirements, i.e financial, proof of relationship, offer of work etc. have been fulfilled?

Thanks

Mzungu

[Smit]

I would not advise your girlfriend to overstay as the British High Commission in Kenya is very strict and tends to regard past breaches of immigration rules in bad light.

[John]

Mzungu, I agree with Smit and would add .... no one should overstay "just for the sake of it". Sorry if that sounds harsh but clearly she has the ability to leave the country soon, and therefore should do just that.

BHC in Kenya? Does anyone know if it is possible to apply for a spouse visa ... before the marriage has actually happened? That is certainly possible in Bangkok, where you can submit the application with a covering letter saying that the marriage has not yet happened but it expected to happen on or about (date).

Then the embassy, if they are so minded on the evidence that is submitted with the application, will tell the applicant .... come in with the marriage certificate once it is available and the spouse visa will be put into your passport.

The benefit of doing that is that it cuts out any lengthy waiting time after the marriage.

Does the BHC in Kenya operate on the same basis?

[Smit]

John,

I can confirm with authority that the BHC, Nairobi will not operate like the Bangkok one and applicants are strictly advised to lodge all supporting docs at the time of applying otherwise the application will automatically be rejected. They do not work on contingencies.

The OP should read the posts by BG101 to see how the BHC in Nairobi operates.

Smit