Spouses Visa - Refused - English Language Requirment

[nAif_64]

Hi,

My name is Nathan, I am in a civil partnership with my Partner who is currently in Venezuela. I am in the UK.
We have applied for the Visa but it was refused as it said the English language certificate is not on the list of acceptable certificates.

The certificate is an EF Cambridge English Level test stating B1 of english (ESOL certified)

The solicitor we used said this will be fine as long as it says a level higher than A1, so we took her word for it.

I feel stupid now because after the refusal we checked the list and it is not on there.

My question is, is it worth us appealing this? can i argue the case that the course he did has given him the same skills any of the acceptable courses would have? Our problem is money, right now we don't have the money to reapply. The stress and time-frame is putting allot if pressure on our relationship, if this decision is final I'm worried that it is all over. Everything we have worked for over the last year will be wasted, and i may loose my soul-mate forever.

Please please can someone help me!

[Lucapooka]

I hope the solicitor is waiving her fee; if not sue her for compensation due to incompetence. If the test is not on this list then it is not acceptable.

I'm afraid that you can't appeal something that did not exist at the time of the application. Your partner's pass in an approved test did not exist when she applied so the original decision will be upheld. If she had passed the test but not provided the cert, she could provide it at the appeal and win, but not having passed it prior to the decision is not acceptable.

[nAif_64]

First of all thank you for replying to me.

So even though he has passed B1 in english because its not on the list he cant use it. Doing another test to show he is competent in this level still will not work?
It seems so unfair that they wont allow it, we cant afford to reapply.

[Lucapooka]

If you can't afford to re-apply then how did you meet the maintenance requirement? Apart from this mishap did you otherwise get approval on all the other paragraphs of the settlement rules? I think you should ask the solicitor to pay (is this a person licensed by registered body in the UK as you would certainly have recourse to the law if she is)?

How about family; can they help. Otherwise do you have a credit card; you could pay the full amount on the card but then pay off the card by installment. The bit of interest on this is nothing compared to the separation from your partner.

[nAif_64]

We only used the solicitor to check our paper work and advise us of what we needed we didn't actually use her to apply for the visa, so we were told not to say that we used a solicitor for the application as we did the most part ourselves. The solicitor said that the certificate would be fine as long as it says A1 or higher, so we assumed it would be fine. There was so much to prepare and organise that we didn't double check this so its our fault i think. I have contacted the english school and they may supply a statement for the appeal.

If my partner does an approved English test in Venezuela then I am hoping to appeal by explaining the mistake and the fact that we have got the correct qualification to demonstrate my partners English ability. This with the statement from the English school will hopefully make them reconsider.

In regards to money, I have recently moved out in preparation for us to live together and am managing all the costs myself. The plan was that my partner would be back and working by now so we can split the costs, as i am paying for everything by myself atm I don't have the extra cash to apply again. £800 is allot of money. But like you said, a credit card or borrowing money is a good idea. We did get a credit card for the solicitor costs and visa etc, still paying that off atm. So am not sure if i will get accepted for another one, even if i do can i pay for the visa from here in the uk?

Also on another note, when and if we appeal do we have to send all the paperwork we submitted in the original application or just the paperwork relevant to the appeal. We wont get the results of the English test until the 21st of October so the appeal submission could be late.

If we appeal we have decided i will appeal on his behalf in the UK, this way at least i can talk to someone face to face and put my case across. My partner will fax me the documents and I will fax them to appeal in UK.

If this does not work then we will just have to apply again but we thought we should at least try. What do you think?

Thank you so much for taking the time to help us. It really does mean so much to both of us!

[nAif_64]

They did not say anything about approval of the other sections so we guess they must be fine...

[Lucapooka]

When appealing, you have to understand the difference between providing evidence of something that existed before the decision to refuse and providing evidence of something that did not exist. At the time of her refusal your wife had not passed an approved English language test (not just any test, but one that appears on the approved list)

Post decision evidence
The relevant date in entry clearance cases is the date of refusal. This is established from case law and s. 85(5) of NIAA 2002. Any material change in circumstance or evidence not reasonably foreseeable after the date of refusal should not be taken into account. In practice this means when conducting the review the ECM should only look at circumstances leading up to and including the date of refusal. An ECM or Immigration Judge is entitled to look at circumstances / evidence after the date of decision only if they relate to circumstances before or at the time of decision.

There is a distinction to be made between new evidence and additional evidence.

New evidence:
New evidence which postdates the decision cannot be considered by the ECM. This evidence should be acknowledged in the Review and the ECM should indicate that this should be used to support a fresh application.

Examples of new evidence

These are common examples and are not an exhaustive list.

Unexpected increase in funds postdating the decision.
Sponsor obtains new employment that was not engaged in / expected at the date of decision.
An offer of accommodation which was not available at date of decision.
A new sponsor appears in the grounds of appeal. This is not reasonably foreseeable.

Additional evidence:
If evidence relating to the initial application is submitted with the appeal this should be taken into account by the ECM. The most common instances of additional evidence will be documents that the appellant omitted to include with the application.

Examples of additional evidence

These are common examples and are not an exhaustive list:

A bank statement issued after the date of decision that shows a satisfactory balance on or leading up to the date of decision.
Satisfactory evidence of accommodation submitted by the sponsor relevant to the decision.
Evidence of employment at the date of decision which was omitted from the original application.
A birth certificate evidencing the relationship of parties which was not produced at the time of decision.

[flyguy]

Thats a tough one...they may allow on the appeal considering the circumstances and your wife MAY get the Visa on the otherhand the appeal process will be long, and upto 20-24 weeks. So take that into consideration, yes save on the Visa fee, but do not save on the time.

[AcrossBorders]

I hope the solicitor is waiving her fee; if not sue her for compensation due to incompetence. If the test is not on this list then it is not acceptable.

That link goes to the old list? the new list is New List

I can see alot of Cambridge ESOL tests on that list , first one called Cambridge English "Key English test"

Did you check if your center was listed via their website? http://www.cambridgeesol.org/

From my understanding they don't list every approved center on that UKBA document, but rather they list approved certifying bodies.

Someone please correct me if im wrong...

[amo7ale]

Hi Nathan,

My girlfriend is also Venezuela looking to do the "English Test" i dont want the same thing happen to us what happen with u guys.. do u know which is the correct "test" and any information regarding it? any information will be helpful.

i hope everything is ok with ur visa and good luck!

Thank You

[geriatrix]

do u know which is the correct "test" and any information regarding it?

Read New English language testing for partners.