UK settlement visa refused in Bangkok - what now ?

[3point14]

My partner was refused a settlement visa as an unmarried partner under Paragraph 295a (i) (a) of HC395 citing that they were not satisfied we were in a relationship akin to marriage or civil partnership which has subsisted for two years or more.

The reality is that we are in a relationship for more than 5 years, more than 4 of which were outside the UK. We also have a 3 year old child who has a UK passport, born overseas.

Though there is some complexity, I think they are relying on the fact that we were not together for 7 months immediately prior to making the visa application. They have seemingly missed the point about 4 years being eligible for ILE completely.

As well as inviting comments on these points, I would like to have your thoughts on an immediate application for a visitors visa. I understand the issue of the reason to return but past visas to the UK and other European countries were complied with. The partner is financially supported by myself and thus, apart from owning property, has no reason to return. The fee is immaterial and 95% are responded to in 7 days with 99% dealt with in 2 weeks. Settlement visas are taking 12 weeks.

I am seeking advice on whether we can try to overturn this in Bangkok but we cannot wait 9 months for a full appeal hearing as there is a child's future at stake.

Is a radical alternative for the child to be separated from its mother to the UK and the mother to seek a visa on human rights grounds ?

Any comments or suggestions most welcome.

[mochyn]

After refusal of settlement visa, there is no hope of getting a visitors visa

[John]

3point14, the 7 month period of separation is clearly the issue here.

Is marriage out of the question? That would seem to make all the difference, given no minimum time together needed. My own wife's spouse visa was granted just 17 days after we registered our marriage at the Amphur in Phitsanulok, and just 12 days after our religious wedding. But that was back in 2001.

[3point14]

Yes marriage is possible. Hardly ideal timing but actually just a bringing forward of an already planned event. Hardly the romantic vision she had planned for herself though, a rushed job in Bangkok. However, if needs must etc.

I am not sure a visitor visa can legally be refused on the grounds that one has had a settlement visa turned down. As all points except the living together were accepted, it would be impossible to refuse a visa on any of those grounds accepted merely a couple of weeks previously.

The issue would be the need to prove she would leave the UK. I see nowhere she has demonstrated anything to class her a a potential criminal or overstayer. Indeed, previous visas to the UK and elsewhere have all been complied with. For the small cost, we will go down that route and let them deny it, giving rise to another appeal. They will have to state why and as we already know the only reason they can state, we can head them off at the pass as we can refer to their decision in the settlement refusal. Also, as we have a child, they need to take that into account.

Other thoughts and opinions most welcome.

[John]

Yes marriage is possible. Hardly ideal timing but actually just a bringing forward of an already planned event. Hardly the romantic vision she had planned for herself though, a rushed job in Bangkok. However, if needs must etc.

As you will know, in Thailand a religious wedding has no legal significance at all, and the only way to get married is to register the marriage at the Amphur, which is a very simple form-filling exercise .... similar in terms of the process to registering a birth or a death at a Register Office in the UK. (When my wife and I registered our marriage at the Amphur in Phitsanulok in 2001, immediately after that my wife went to a different counter to get a new Thai ID card in her new surname. It took far longer to get that new ID card than it took to get married!)

The point is this, all the British Embassy is looking for is the marriage certificate issued by the Amphur, in order to prove the couple are married. So you can go through the Amphur process and she can still have the lovely religious ceremony, maybe in a quieter moment.

I am not sure a visitor visa can legally be refused on the grounds that one has had a settlement visa turned down.

The point is this. Having clearly indicated an intention to settle in the UK, applying for a visitor visa is even more fraught with problems. The question in the mind of the ECO looking at the visitor visa application is, why would this woman return to Thailand when her husband is living and working in the UK, and she has already indicated a desire to live in the UK?

[3point14]

I agree with the simple process of obtaining the requisite paperwork but I do not necessarily agree that the ECO is liable to void a visitor visa application.

For instance, many of the criteria are the same and none were used as reasons to deny the settlement visa. In fact, the only reason which could be used would be a suspicion that the applicant would not leave within 6 months. That is a preposterous stance as there is no evidence to suggest it, quite the contrary actually when previous visa conditions have been complied with.

On the balance of probabilities, which is the test, there is only evidence to suggest that the applicant will abide by the rules. Thus, unless one introduces an element of spite, I do not find that a visitor visa should be refused post settlement rejection.

[John]

Hmmm ...... I think I need to say ... best of luck ... you might need it.

But I don't think "spite" comes into it. It is simply that the ECO might conclude there is insufficient "reason to return".

[3point14]

Hmmm ...... I think I need to say ... best of luck ... you might need it.

But I don't think "spite" comes into it. It is simply that the ECO might conclude there is insufficient "reason to return".

That seems to be what people think and yet the law requires them to make decisions on the balance of probabilities. Someone with numerous previous visas and them leaving within the stipulated time periods would, on the balance of probabilities, have shown that they would leave, not the other way around !

No-one would come to court and defend that decision but a visa chappie or chappess could well make that decision for any number of reasons, applying the law not being one of them !

I guess I would go to town on anyone who refused on those grounds as it would seem a blatant abuse of power. We'll see !

[John]

In the real world ..... well that is where most members of this board live ... based upon their own experience, and those of others they have heard about.

3point14 .... again .... good luck.