Solicitor's negligence - Spouse Overstayed and now Detained

bunty4ILR · Post by **bunty4ILR** » Thu Sep 29, 2011 10:09 am

Hello all
I am asking this question on behalf of my cousin who was recently detained by the UKBA while he was attending an interview at the Jobcentre.
Previously he was on a student visa but last year he got married to a British Citizen. His spouse visa was applied through a solicitor in June this year before the expiry of his student visa and he was waiting for his flr_m visa.
Recently he went to Jobcentre to attend some interview (not for benefits purpose) and when he was asked about his immigration status he told them about his spouse visa application. The staff at the jobcentre rang immigration and later the immgration people came and arrested him. According to the immigration people they never received his application and now he is 3 months overstayer. This was the shocking news for him because the application was sent a long time ago....
He then asked the immigration staff if he could speak to his solicitor.... the solictor told the immigration that he (solicitor) went on holidays and completely forget to send his application.... Bad luck
Now immigration authorities are trying to remove my cousin and asking him to sign some paperwork. My cousin's wife has become an emotional wreck, completely broke..... we dont know what to do....... solicitor has now sent the application yesterday but my cousin is still detained.

Plz could you guyz suggest where to go from this point. My cousin and his parents in his country are now mentally prepared for his departation... but would it effect his future spouse visa application if he applies from his country.....

cheers

Post by **Lucapooka** » Thu Sep 29, 2011 11:00 am

Really, the best option is to go now and apply for a settlement visa from his home country.

peppekalle · Post by **peppekalle** » Thu Sep 29, 2011 11:55 am

It does not necessarily mean he will be deported..Your solicitor can make representations so that the removal can be cancelled and then apply for bail.

bunty4ILR · Post by **bunty4ILR** » Thu Sep 29, 2011 12:47 pm

Thanks both of you for the prompt replies....... just half an hour ago I learnt that my cousin's case is now with senior officer who is reviewing it and they may release him but 50/50 per% chance.
If he is told to go back to his country, would he be able to apply for spouse visa straight away or is there a set time period he will have to spend outside UK?
His solicitor told us that he cannot be removed because he is married to a British citizen....... this does not sound right to me.... or is it? I am hoping that whatever destiny decides for him he may stay safe and well.

Post by **John** » Thu Sep 29, 2011 1:10 pm

bunty4ILR, a terrible experience! But when you say "Solicitor", do you really mean a Solicitor, or alternatively an OISC-Registered company?

I ask because I think you need to contact the regulatory body for that immigration adviser, and also ensure that he has adequate Professional Negligence Insurance.

peppekalle · Post by **peppekalle** » Thu Sep 29, 2011 1:28 pm

In my opinion your solicitor is right.He cannot be removed has he has strong case of article 8.

If a senior officer is reviewing his case that is good news.Normally they try and remove within 3 days without any review.

Even if after the review they decide to remove go ahead and appeal claiming article 8 and let the judge decide.

bunty4ILR · Post by **bunty4ILR** » Thu Sep 29, 2011 1:31 pm

John wrote:bunty4ILR, a terrible experience! But when you say "Solicitor", do you really mean a Solicitor, or alternatively an OISC-Registered company?

I ask because I think you need to contact the regulatory body for that immigration adviser, and also ensure that he has adequate Professional Negligence Insurance.

Thanks John... Yes he is a solicitor and not the OISC adviser (I checked with my cousin's parents) based in B'ham.... this is not just it, my cousin and his wife are both disabled and things are even more diffcult

I feel absolutely gutted. Today any time the immigration official will tell the outcome of the review to my cousin's famliy.

Post by **John** » Thu Sep 29, 2011 3:57 pm

I think they should contact the SRA.

bunty4ILR · Post by **bunty4ILR** » Tue Oct 04, 2011 1:07 pm

Hey guys....... thought to give an update.
Couple of dayz ago my cousin was asked to sign the papers again and was also taken to his embassy but he insisted to see his wife. He was then brought back to the detention centre. Then he was told his passport (currently with the flrm section) is fake which is not.
My cousin is still in the detention centre, the immigration people now tell us that the case is with the chief immigration officer who will reconsider it. So far we dont know what's going on as even the solicitor wont give us any info. My cousin's wife has asked me to ring the solicitor but not sure if he would give me any updates. Looks like no right to say or know anything.

bunty4ILR wrote:Hello all
I am asking this question on behalf of my cousin who was recently detained by the UKBA while he was attending an interview at the Jobcentre.
Previously he was on a student visa but last year he got married to a British Citizen. His spouse visa was applied through a solicitor in June this year before the expiry of his student visa and he was waiting for his flr_m visa.
Recently he went to Jobcentre to attend some interview (not for benefits purpose) and when he was asked about his immigration status he told them about his spouse visa application. The staff at the jobcentre rang immigration and later the immgration people came and arrested him. According to the immigration people they never received his application and now he is 3 months overstayer. This was the shocking news for him because the application was sent a long time ago....
He then asked the immigration staff if he could speak to his solicitor.... the solictor told the immigration that he (solicitor) went on holidays and completely forget to send his application.... Bad luck
Now immigration authorities are trying to remove my cousin and asking him to sign some paperwork. My cousin's wife has become an emotional wreck, completely broke..... we dont know what to do....... solicitor has now sent the application yesterday but my cousin is still detained.

Plz could you guyz suggest where to go from this point. My cousin and his parents in his country are now mentally prepared for his departation... but would it effect his future spouse visa application if he applies from his country.....

cheers

Mr Rusty · Post by **Mr Rusty** » Wed Oct 05, 2011 4:34 am

It's difficult to make any constructive comment based on the info you have given. However, two points occur to me:-

- "my cousin was ....also taken to his embassy...... Then he was told his passport (currently with the flrm section) is fake which is not." - I can't see why UKBA would go to the trouble and expense of escorting a detainee to their embassy without good reason. It is easy enough to verify with a country's embassy whether one of their passports is genuine or not, and UKBA's National Document Fraud Unit is the best in the world, so I am afraid your cousin may not have told you the whole truth. Incidentally, you don't say what his nationality is.

- " the case is with the chief immigration officer who will reconsider it." Detention procedures require his case to be reviewed regularly by a senior officer. But if he's refusing to cooperate in a process to document him for return to his own country, he's storing up a whole world more trouble than he's already in.

peppekalle · Post by **peppekalle** » Wed Oct 05, 2011 9:35 am

Your cousin does not have to co-operate in the documentation process and refusing to do so is not a reason for continued detention.There is a court ruling somewhere on bailii once i find it i will post it.It is up to UKBA to prove his nationality and if they dispute the authenticity the authenticity of the passport they can't remove him.

Has your cousin been visited by his wife?Make sure you visit him in detention?Has he applied for bail ?

UKBA are skeptics they believe every document they are presented with must be fake especially they are trying to remove you.

Which detention center is your cousin being held at?I am shocked they took him to the embassy.The staff at the embassy come to the removal centers not the other way round unless he comes from one of those countries that don't co-operate with UKBA.

Tell your cousin to sit tight he will eventually be released.

bunty4ILR · Post by **bunty4ILR** » Wed Oct 05, 2011 12:33 pm

peppekalle wrote:Your cousin does not have to co-operate in the documentation process and refusing to do so is not a reason for continued detention.There is a court ruling somewhere on bailii once i find it i will post it.It is up to UKBA to prove his nationality and if they dispute the authenticity the authenticity of the passport they can't remove him.

Has your cousin been visited by his wife?Make sure you visit him in detention?Has he applied for bail ?

Yes.... since day one his wife try to see him every day but they only let him see her once. yes he has applied for bail and we were told the CIO (senior officer) is looking into it but it may take weeks.

UKBA are skeptics they believe every document they are presented with must be fake especially they are trying to remove you.

Which detention center is your cousin being held at?I am shocked they took him to the embassy.The staff at the embassy come to the removal centers not the other way round unless he comes from one of those countries that don't co-operate with UKBA.

The one near Heathrow - I didn't manage to go myself but I am constantly in touch with his family.

Tell your cousin to sit tight he will eventually be released.

Thanx alot dear

bunty4ILR · Post by **bunty4ILR** » Tue Jan 10, 2012 11:32 am

Thanks all for previous replies.....
Just to update everyone that my cousin was bailed after 20 days of staying in the detention centre and he was told to start signing on at the local police station every week and then every fortnight...... His flr-m application is currently with home office but there's another issue now:-

In my earlier post I mentioned that my cousin was detained from Jobcentre when he was called for an interview. At the time of the post I myself was not aware of the Jobcentre issue, upon his release from detention centre that his Jobcentre interview was in connection with benefit fraud...... I learnt that couple years ago when my cousin was on student visa and was working part time, his then employer applied some kind of employee disability benefit which is normally paid to employers..... My cousin who is sensory impaired (so is his british wife) had no knowledge of any diability benefit being claimed under his name by his employer (despite the fact that he has no recourse to public funds).... All he remembers that he signed the job contract and some forms which his employer asked him to do...... In the interview the Jobcentre staff has strictly told him not to contact his ex-employer.
Because of his disability BSL is the only way to communicate with him and in my opinion he was conned by his employer who used my cousin's name and disability to claim expenses in order to receive some kind of benefit paid directly to the employer.... the case is still pending and my cousin's been told to visit the Jobcentre again some time in April-May this year.

Now my cousin's immigration solicitor has told him that he received a phone call from home office that they would not process his spouse visa application until they get the outcome of police investigation. My question is...... my cousin is not convicted of any crime (innocent until proven guilty) then why home office would not process his application? If the solicitor is just making this up then can my cousin contact the home office himself to get this confirmed?
Sorry for the long note and thanks in advance.

Mr Rusty · Post by **Mr Rusty** » Wed Jan 11, 2012 12:54 pm

bunty4ILR wrote: Now my cousin's immigration solicitor has told him that he received a phone call from home office that they would not process his spouse visa application until they get the outcome of police investigation. My question is...... my cousin is not convicted of any crime (innocent until proven guilty) then why home office would not process his application? If the solicitor is just making this up then can my cousin contact the home office himself to get this confirmed?
Sorry for the long note and thanks in advance.

It's bizarre if they are still continuing with the solicitor who let them down before, or have instructed another one and don't trust him either. However, UKBA will divulge information to the subject of a case or his legal representative named on the file, but not to anybody else, so if your cousin wants to phone them to discuss his case he can do so.

It would be absolutely stupid of UKBA to go ahead and make a decision without the fullest knowledge of his activities. It's not particularly about him being innocent or guilty, but if he were to be charged with an offence they couldn't make a decision until the outcome of the trial. Equally, bearing in mind his disability the police enquiries may suggest him as a victim of an exploitative employer, which might weigh a little bit in his favour in the application.

I'm bound to say I'm not impressed with the veracity of your cousin, and as he's not detained and not at risk of immediate removal he is being given the benefit of the doubt for the time being, so he hasn't a great deal to complain about. Let him sit and wait.

GMacNab · Post by **GMacNab** » Sat Jan 14, 2012 1:38 pm

Sorry, Peppekalle, but a lot of the information you have given is inaccurate.

peppekalle wrote:Your cousin does not have to co-operate in the documentation process and refusing to do so is not a reason for continued detention.

It is still an offence under Section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 not to cooperate with the re-documentation process.

http://www.ukba.homeoffice.gov.uk/sitec ... movals.pdf

peppekalle wrote:UKBA are skeptics they believe every document they are presented with must be fake especially they are trying to remove you.

It is my experience that it is the Embassies / High Commissions that are generally sceptical of documents provided as evidence of nationality. This is especially after certain governments have changed and the Embassy gets new staff.

peppekalle wrote:Which detention center is your cousin being held at?I am shocked they took him to the embassy.The staff at the embassy come to the removal centers not the other way round unless he comes from one of those countries that don't co-operate with UKBA.

It varies from from country to country, although most Embassies prefer the person to go to the Embassy for the interview.

bunty4ILR · Post by **bunty4ILR** » Fri Mar 23, 2012 1:25 pm

Hi again
I am wondering if someone could help me finding a court of appeal judgement over an issue 'when home office puts the visa extension application on hold due to the on going police/criminal investigation'.

It is about my same disabled cousin who is going through a police investigation with regard to a benefit fraud (now as a victim). He never committed the fraud himself but his ex-employer used his disability details to claim a benefit which is usually paid directly to the employer. All this happened without his knowledge and it has been over 6 months police & Jobcentre are investigating this matte. The outcome was expected this month but Jobcentre has extended the date until end of October this year. The Jobcentre now tells my cousin that so far they have not found anything against him but the investigation is still on-going and he may be treated as a victim rather than a suspect.

Long story short my cousin has no choice but to wait until October to get the investigation outcome and then ask home office to re-open his file. But I've learnt from someone that there is a court of appeal judgement which suggests such application should be given DLR until the police investigation is concluded. The situation is my cousin can't work or study as he has no visa or section 3c provision, he can't go back to his country to apply for fresh entry clearance as husband due to police case, he is deaf and also has speech impairment, now house bound, skint, depressed and suicidal.

Does anyone know about that judgement? many many thanks.

peppekalle · Post by **peppekalle** » Fri Mar 23, 2012 3:26 pm

GMacNab wrote:Sorry, Peppekalle, but a lot of the information you have given is inaccurate.

peppekalle wrote:Your cousin does not have to co-operate in the documentation process and refusing to do so is not a reason for continued detention.
It is still an offence under Section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 not to cooperate with the re-documentation process.

http://www.ukba.homeoffice.gov.uk/sitec ... movals.pdf

peppekalle wrote:UKBA are skeptics they believe every document they are presented with must be fake especially they are trying to remove you.
It is my experience that it is the Embassies / High Commissions that are generally sceptical of documents provided as evidence of nationality. This is especially after certain governments have changed and the Embassy gets new staff.

peppekalle wrote:Which detention center is your cousin being held at?I am shocked they took him to the embassy.The staff at the embassy come to the removal centers not the other way round unless he comes from one of those countries that don't co-operate with UKBA.
It varies from from country to country, although most Embassies prefer the person to go to the Embassy for the interview.

There is a ruling in bailii where some immigrants refused to co -operate with the documentation process.UKBA did not know where they came from but were still holding them in detention.The judges ruled that refusing to co -operate is not a reason to justify continued detention.

The ruling was ages ago just like this thread if i find it i will post it.

peppekalle · Post by **peppekalle** » Fri Mar 23, 2012 3:34 pm

bunty4ILR wrote:Hi again
I am wondering if someone could help me finding a court of appeal judgement over an issue 'when home office puts the visa extension application on hold due to the on going police/criminal investigation'.

It is about my same disabled cousin who is going through a police investigation with regard to a benefit fraud (now as a victim). He never committed the fraud himself but his ex-employer used his disability details to claim a benefit which is usually paid directly to the employer. All this happened without his knowledge and it has been over 6 months police & Jobcentre are investigating this matte. The outcome was expected this month but Jobcentre has extended the date until end of October this year. The Jobcentre now tells my cousin that so far they have not found anything against him but the investigation is still on-going and he may be treated as a victim rather than a suspect.

Long story short my cousin has no choice but to wait until October to get the investigation outcome and then ask home office to re-open his file. But I've learnt from someone that there is a court of appeal judgement which suggests such application should be given DLR until the police investigation is concluded. The situation is my cousin can't work or study as he has no visa or section 3c provision, he can't go back to his country to apply for fresh entry clearance as husband due to police case, he is deaf and also has speech impairment, now house bound, skint, depressed and suicidal.

Does anyone know about that judgement? many many thanks.

Has your cousin sought legal help?He may be entitled to legal aid and solicitors might be much more aware of the judgment you are referring to.

bunty4ILR · Post by **bunty4ILR** » Mon Mar 26, 2012 10:38 am

Thanx again for your reply peppekalle, yes my cousin has legal aid funded representation for his criminal case and the lawyer is superb, it's just the immigration side of the issue. The judgement I am referring to is for immigration matter and the immigration solicitor (same one mentioned in the topic of this thread) seems to be oblivious of any such judgement or case law, that is why I was asking for it in the first place.

The immigration representation is self funded.

Mr Rusty · Post by **Mr Rusty** » Tue Mar 27, 2012 3:54 am

"....the immigration solicitor (same one mentioned in the topic of this thread) seems to be oblivious of any such judgement or case law..."

- quite possibly because no such judgement exists. It is of course difficult to prove a negative, and I'm not sure, but no-one else appears to be either. If you choose to take the unsubstantiated opinion of a friend (whom presumably you would instruct to take on the case if he were qualified to do so) against that of your solicitor, that's up to you.

The reality is that your cousin has an application pending which has been deferred during the police investigation. In the meantime he is not at risk of removal. I can't see anything in the IDIs relating to DLR appropriate to his case, and UKBA aren't obliged to do anything.

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Solicitor's negligence - Spouse Overstayed and now Detained

Solicitor's negligence - Spouse Overstayed and now Detained

Re: Solicitor's negligence - Spouse Overstayed and now Detai