URGENT information/advice/help wanted Please view

[nyt ryda]

hi everyone.
i am in serious problem and i have just found out.
my wife came in uk in january 2008 and had a 2 year visa.
on the expiry of the 2 year visa i was supposed to apply for a visa again.
her first 2 year visa expired in jan 2010 and i have not yet applyed for a visa again due to not knowing what to do.i have just realised that she has been in uk for 1 year without a valid visa.
please can someone help and tell me what to do or where to go.
thanks

[shahzad80]

...............

[batleykhan]

My advice would be for your wife to return back to her home country and reapply for her visa again, before she is caught by the authorities as she is deemed to be an illegal immigrant now.

If she is deported rather than leaving voluntarily then she may have difficulty coming back in.

Do you have any childrens?. If so then you can ask the Home Office to be lenient and ask if they will give her FLR without having to leave the country.

If no children then dont bother as they will not allow her to stay. They are very strict on this. Furthermore as her visa has expired she has no right of appeal against any refusal by the Home Office now.

I am sorry to say you but you have made a fairly costly maistake. You have to start the whole procedure like you did first time all over again in trying to get her a visa.

[shahzad80]

..........

[vinny]

Has she satisfied the KOL requirements?

See also spouse visa overstayed.

[pennylessinindia]

hi everyone.
i am in serious problem and i have just found out.
my wife came in uk in january 2008 and had a 2 year visa.
on the expiry of the 2 year visa i was supposed to apply for a visa again.
her first 2 year visa expired in jan 2010 and i have not yet applyed for a visa again due to not knowing what to do.i have just realised that she has been in uk for 1 year without a valid visa.
please can someone help and tell me what to do or where to go.
thanks

How do you forget your wifes visa - this sounds very odd and I am sure will sound odd to anyone in authority

[Casa]

The OP hasn't said he forgot it. He didn't know what he was supposed to do, so he did what a lot of people unfortunately do...he did nothing.
The UKBA could do a great deal more to help immigrants by producing a help booklet explaining the procedure. They charge enough for the visas.

[shahzad80]

..............

[rbk1597]

If he didnt know what to do, should have aksed that question here a year ago. Overstaying for a year!!! Obviously ignorance is not an excuse because all the information is there online, or over the phone to home office. Did they made any call? Nothing is worse than doing nothing, if one is not sure of anything, they ask someone (like what they now did) but in time.

[batleykhan]

Whether the OP did nothing as a lack of ignorance or deliberately forgot , he will learn one very painful lesson now which I hope he will remeber for a long time in the future

This has jsut come into my email. Worth reading

[quote]
Doing the right thing?

I’ve just been in court doing yet another case where a solicitor has advised a client to do the ‘right’ thing and go abroad to make an application for entry clearance. This is common in spouse cases and I have myself advised clients to do the same thing in the past. Unfortunately, these applications are often rejected by ECOs, often but not always using one of the general grounds for refusal, leaving the couple separated for the months and months it takes to rectify the position through an appeal which will almost inevitably succeed.

There are good reasons (in theory) to go abroad and make the application from there. It is legally the right thing to do: making a voluntary departure then joining the queue and paying all the right fees, going through the right process and so on. There is also an important practical benefit: a successful application for entry clearance as a spouse leads to a grant of two years of leave followed by ILR followed a year later by eligibility for citizenship.

In contrast, staying in the UK and making an application from here is fraught with difficulties. An overstayer would have to continue breaking the law to make the application. The in-country fee is higher than the out-of-country fee (£900 against £750). If successful, the application will normally lead to a grant of three years of Discretionary Leave. At the end of that three year period an application for a further three years must be made and then only at the end of six years in total can an application for ILR be made. If unsuccessful, the application may not generate a right of appeal, leaving the applicant in limbo (a subject to which I will return soon).

The problem with going abroad is that the quality of decision making in some entry clearance posts is so abysmal that it is bonkers to place oneself at the tender mercy of an ECO. Many immigration lawyers also suspect that ECOs look for reasons to refuse applications by previous overstayers. Today’s was a case in point. The letter from the sponsor’s employer was rejected as evidence of adequate maintenance because it did not bear the company’s VAT registration number (it doesn’t need to!), but the ECO makes no reference to the pay slips and bank statements showing payments in from that employer. The telephone cards submitted as evidence of subsisting relationship were rejected as not proving anything, but the photos and numerous letters between the couple were not referenced at all. The general grounds for refusal were not relied on. It genuinely looked like the ECO had been trying to refuse the application. ‘TJ’ in Dhaka, whoever you are, you should be ashamed of yourself. The Entry Clearance Manager barely even bothered to rubber-stamp the decision, simply maintaining it without looking at the original or further documents submitted.

With the evidence of facial discrimination recently unearthed by the Chief Inspector of UKBA, John Vine, it is not outlandish to suggest that there is facial discrimination going on here at some posts.

After seeing a few too many unhappily separated couples, I would now be very reluctant to advise a client to return to their country to apply from there, particularly for posts with a poor reputation for their quality of decision making, such as Albania, Bangladesh, Ghana, Ethiopia, Jamaica and Nigeria, Pakistan. Official statistics show (if you dig deep enough into the supplementary tables: table 1d is the relevant one) that in 2009 the refusal rates for these countries were as follows:

* Albania: 29%
* Bangladesh: 24%
* Ethiopia: 31%
* Ghana: 35%
* Jamaica: 28%
* Nigeria: 38%
* Pakistan: 46%

The worldwide average is a refusal rate of 18%. Of course, the bare statistics do not tell the whole story, nor anything like it. There are other posts with very high refusal rates that I haven’t mentioned above: Somalia at 47%, Zimbabwe at 46% and DRC at 42%, for example. I don’t see that many ordinary entry clearance cases from those countries and can’t comment on the quality of decisions. By quality of decisions I mean ECOs actually looking at the evidence presented, not making up bogus evidential requirements, applying the right rules and not coming up with whacky reasons for refusal. My experience is just my experience, although I will say that the various reports of the Chief Inspector of UKBA do tend to confirm anecdotal experience.

There are possible alternatives to going back and applying from home, although they are not suitable for everyone and certainly aren’t cheap once all the fees and costs are paid.

It would be possible to pursue an in-country application and hope to obtain Discretionary Leave that way. Once it has been granted, there is nothing I can think of to stop a person then travelling abroad to apply for two years leave to enter as a spouse and in effect upgrading their leave that way. The DL seems very unlikely to be taken away as there is no basis at all for doing so and the person has the reassurance of being able to travel back to the UK if there are problems.

As another alternative, I recently came across the case of R (on the application of Abdelghani) v Secretary of State for the Home Department [2010] EWHC 1227 (Admin) (26 May 2010), for which I have to thank Mark Symes. See paragraph 56:

I take the view that it probably would be unlawful to apply the six-year policy period, as a matter of routine, and quite possibly in any event, to a case of an applicant who at the relevant time of entry met all the substantive criteria under paragraph 281 of the Immigration Rules, and who had been granted discretionary leave to enter outside the Rules on the basis of the marriage or civil partnership because it was accepted by the Secretary of State that it would be a disproportionate interference with his Article 8 rights to require him to go through the procedural formality of applying for entry clearance from abroad. In such a case, the very reason that the Defendant had acknowledged as a good and sufficient reason for allowing that applicant into the country without a “spouseâ€

[Harpz]

ECO can get away with anything, its unbelievable!

They refused my hubby application because he overstayed but the ECO officer disregarded our legitmate documents and said we did not provide any documents then added 320 (11) rule which didnt make sense in anyway.

At my appeal hearing my barrister picked up the 320 (11) refusal point and said to me your husband has not even done anything to be refused under this rule.

In front of the judge the barrister made it very clear that what the ECO had done was wrong and the Home Office could not justify it either.

It then came to light that when the ECO manager had to review the case before sending it back for the hearing that ECO manager did not authorise the 320 (11) to be used as a refusal point.....

The judge even said what they done was not lawful.....

so that ECO ruined our 1st year of our married life and was not even allowed to...how unfair is that???

Its distgusting and there should be some process in place to prevent them for doing this again to somebody else.

[Kitty]

Credit where credit's due for the blog post batleykhan quotes! http://freemovement.wordpress.com/

FWIW I agree with the sentiment of the piece as it relates to the stupidity of some refusals that emanate from certain overseas posts.

nyt ryda, are there any issues that might make an out-of-country application for your wife tricky? Do you fulfil the spouse requirements as they are now (money, accommodation etc)? Can your wife satisfy the new English language requirements?

Bear in mind the point made in FreeMovement's blog post: if you do apply for further leave to remain from inside the UK, your wife will only get Discretionary Leave. It will therefore take her a whole lot longer to qualify for ILR unless she "upgrades" at some point by leaving the country.

[shahzad80]

..............

[Greenie]

Bear in mind the point made in FreeMovement's blog post: if you do apply for further leave to remain from inside the UK, your wife will only get Discretionary Leave. It will therefore take her a whole lot longer to qualify for ILR unless she "upgrades" at some point by leaving the country.

This is not quite correct. I think the FreeMovement post is referring to the situation of an overstayer who has not completed the two years probationary period applying from within the UK, rather than returning home to apply for entry clearance. In this situation the person would usually get DL and not ILR. However in this scenario, where the spouse entered the UK on a two year spouse visa, completed the two years and overstayed, then as long as she meets the other requirements for settlement, she should be granted ILR. This is because there is no requirement in para 287 for the applicant to have current leave (the requirement is that the applicant 'has completed' the 2 year probationary period.

In fact the same blog contains an article on this very issue.

http://freemovementtest.wordpress.com/2 ... r-spouses/

(credit again to the brilliant FreeMovement)


Obviously the issue of the applicant having to remain here illegally as an overstayer and potentially having to wait longer for a decision still remain but depending on where she is from this might be far better than going back to the mercy of the ECO.

[Kitty]

Bear in mind the point made in FreeMovement's blog post: if you do apply for further leave to remain from inside the UK, your wife will only get Discretionary Leave. It will therefore take her a whole lot longer to qualify for ILR unless she "upgrades" at some point by leaving the country.

This is not quite correct. I think the FreeMovement post is referring to the situation of an overstayer who has not completed the two years probationary period applying from within the UK, rather than returning home to apply for entry clearance.

Ah, I think you are right. I think I had forgotten the OP's original situation in the excitement of reading the FM post and trying to deal with a baby on my lap at the same time!

[Greenie]

Ah, I think you are right. I think I had forgotten the OP's original situation in the excitement of reading the FM post and trying to deal with a baby on my lap at the same time!

FM and babies what a good combo!

[Kitty]

Yeah, I'm living the dream

[IndyRhodes]

ECO can get away with anything, its unbelievable!

They refused my hubby application because he overstayed but the ECO officer disregarded our legitmate documents and said we did not provide any documents then added 320 (11) rule which didnt make sense in anyway.

At my appeal hearing my barrister picked up the 320 (11) refusal point and said to me your husband has not even done anything to be refused under this rule.

In front of the judge the barrister made it very clear that what the ECO had done was wrong and the Home Office could not justify it either.

It then came to light that when the ECO manager had to review the case before sending it back for the hearing that ECO manager did not authorise the 320 (11) to be used as a refusal point.....

The judge even said what they done was not lawful.....

so that ECO ruined our 1st year of our married life and was not even allowed to...how unfair is that???

Its distgusting and there should be some process in place to prevent them for doing this again to somebody else.

Could not agree more. My wife was refused because the ECO claimed one of her documents was "not issued by the Pakistani authorities". Did they check? Well, we did, and lo and behold the Chairman of the Union council completely verified the document we submitted.

Like you, our first year of marriage is being ruined because ECOs are allowed to make capricious decisions. Surely there should be some comeback, because as far as I am concerned their decision in my wife's case is negligent. How many more times does this sort of thing have to happen?