Married 37 years to UK Cit Leave to Remain Denied, Appealing

[Milaena]

The Facts are: US Cit married to UK Cit for 37 years. Wife 65, spouse 69. Own a house Freehold, no mortgage in UK. Moved to UK Dec 2009, sold house in USA. Wife entered on visit visa, not having understood the law and having been told by Brit. Embassy Hotline in USA that she could come in with her passport.

Pay UK income tax 5 years for renting our house in UK as holiday let. Pay council taxes since 2001. Have marriage cert., birth cert, valid passports wife USA, spouse UK. Have no dependants.

Applied for LTR as spouse and was Denied. Passport stamped with case #. Doing Appeal to First Tier Tribunal as allowed by denial letter. Not in detention. What are my chances of being allowed to stay? Denial Letter suggests we both move back to USA. Am I wasting time on solicitor fees? If I return to USA I am afraid they won't let me back in. Waiting for Tribunal Date. We have never been apart from each other. I had a stroke in 07 and I am scared that all this stress will cause another stroke. We do not have anywhere to go back to in USA.

We have put about $80,000.00 into the UK house with new wiring, plumbing, etc throughout. This was done in 2002-2003.

I would appreciate any solid information anyone can offer. Thank you, Milaena

[John]

The law is quite clear, and has been from as long ago as 01.04.03. Simply it is not possible to switch from visitor status to spouse visa in the UK.

The US citizen needs to return to the US and apply for their spouse visa there. To appeal in the UK is simply a waste of time.

[mochyn]

return to USA to get spousal visa it should be issued very quickly as you have been married for such a long time, it should be issued with KOL required and then as soon as she has entered UK she is entitled to ILR

[djb123]

return to USA to get spousal visa it should be issued very quickly as you have been married for such a long time, it should be issued with KOL required and then as soon as she has entered UK she is entitled to ILR

Why not take the KOL test before returning to the USA and hopefully get ILE straightaway?

[John]

I am not sure which spouse is which but both of this couple are 65+, so the US citizen must be exempt from the Life in the UK Citizenship test.

In para 281 of the Immigration Rules we have :-

(b)(ii) the applicant has sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, unless he is under the age of 18 or aged 65 or over at the time he makes his application

-: so ILE should be issued, even without the test pass certificate.

[Milaena]

Must also mention: Passed Life in UK test April 2010, had Biometrics done May 2010. Denial Letter recommends we both go back and live in USA. That it would be hard, but that since we have spent our lives there, it would be possible. Sold our USA house Oct 2009. Writer assumes a lot; we have no home or living relatives there to go back to.

Mentions that she believes no cause that she, Sec State, is in violation of The European Convention on Human Rights (not to separate family members) Paragraph 286 , and paragraph 284 in article 8.

Any further opinions? Thank you.

[Dawie]

Can you please clear up on what basis the application was refused? You haven't mentioned this.

[Milaena]

"Refusal to Vary Leave or Variation of Leave: Paragraph 286 with reference to 284(i) and of HC 395 (as amended) as set out in paragraph 14 of HC 538"

"The Secretary of State is not satisfied that you have limited leave to enter or remain in the United Kingdom which was given in accordance with any of the provisions of these Rules, other than where as a result of that leave you would not have been in the United Kingdom beyond 6 months from the date on which you were admitted to the United Kingdom on this occasion in accordance with these rules, unless the leave in question is limited to enter as a fiancee or proposed civil partner or unless the leave in question was granted to you as the spouse, civil partner, unmarried or same-sex partner of a Tier 1 Migrant and that spouse or partner is the same person in relation to whom you are applying for an extension of stay under this rule."

"You are entitled to appeal this decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002. The appeal must be made on one or more of the following grounds:

* that the decision is not in accordance with immigration rules
* that the decision is unlawful because it racially discriminates against you
* that the decision is unlawful because it is incompatible with your rights under the European Convention on Human Rights
* that the decision breaches rights which you have as an EEA National or member of such a person's family under Community Treaties relating to entry or residence in the United Kingdom
* that the decision is otherwise not in accordance with the law
* that a discretion under the immigration rules should have been exercised differently
* that your removal from the United Kingdom as a result of the decision would: 1)breach the United Kingdom's obligations under the 1951 Refugee Convention; and 2) be incompatible with your rights under the European Convention on Human Rights.

The REASONS LETTER is quite long. I can scan it. The most disturbing paragraph says:
"While it is accepted that you may have established family in the UK, it is not accepted that the decision to refuse this application gives rise to any interference with your family life. Article 8 of the ECHR does not guarantee a person or their family the right to choose to live in the UK. A decision will only lead to interference with family life when there are unreasonable expectations to family life being continued elsewhere. You have spent the majority of your life in the USA and should therefore be able to re-adjust back to life in your home country. It is noted that you are not working in the UK and you do not own property in the UK (false) and you are originally from the USA so you will have no trouble settling there again. It is open to your spouse to travel to USA with you to continue your life overseas, should this be your wish. "

I am 65 (wife) and my husband is 69. We are both under medical care. Spouse is a born in Kent UK citizen who travelled to USA for a job in 1965, we met in 1966 and married in 1972. It was always our intention to return here to live. Our children were christened here, we own a family home here under our two names, freehold, no mortgage.

It goes on a bit, I won't type more unless someone has a question. M

[Dawie]

Thanks for that. The reason (and the solution), is pretty clear. You arrived in the UK as a visitor and you tried to switch to a spouse visa while on limited leave to remain as a visitor which is not allowed.

The solution is pretty straightforward, you need to return to the US and apply from there.

[John]

Passed Life in UK test April 2010, had Biometrics done May 2010. Denial Letter recommends we both go back and live in USA. That it would be hard, but that since we have spent our lives there, it would be possible. Sold our USA house Oct 2009. Writer assumes a lot; we have no home or living relatives there to go back to.

Thankfully there are hotels in the US. You will not need to live on the street.

Do you appreciate that before the "no switching" rule was introduced on 01.04.03 there were more spouse visas being issued in the UK than were being issued abroad? No wonder the "no switching" rule was introduced.

As regards the pass in the Life in the UK Citizenship test, as long as the US was then at least 65 sitting that test was absolutely not necessary. But because of the test pass, and indeed because of age, when the spouse visa is issued in the US it will be granted as ILE .... indefinite leave to enter. So no need to apply in the UK for ILR in nearly 2 years time.

[Obie]

I know the rules says an in country application for spouse visa will not be accommodated in cases wherthere is no leave to remain beyond 6 months. Taking into account the OP'S age and the poor health situation, i am sure she has more mitigating grounds than for example a young couple who overstayed and got married to a brit and now seeking to get a spouse visa.
Having said so, i do believe she should have sought advice before departing the US and should have obtained the right visa.

[John]

Taking into account the OP'S age and the poor health situation ...

Where does the OP say that?

[Plum70]

I had a stroke in 07 and I am scared that all this stress will cause another stroke. We do not have anywhere to go back to in USA.