OVERSTAYER JUST REFUSED SPOUSE VISA WITHIN UK

[ultragravity]

Hi, I come in uk on student visa in december 2003, in May 2007 I sent my passport through royal mail for extension but my passport has been lost through post by royal mail for which they issued me responsibility letter and apology letter but only after 6 months of constantly ringing them up and then after six months i went to Pakistani embassy in london to reapply for a new passsport but i have been told i need a police report in short they dint issued me a new passport and it took well 15 months and finally in 2008 septermber i been issued with a new pakistani passport. Then i went to a solicitor and have been told that i can not extend my previous student visa becouse of the gap in time. I overstayed my visa then.

In 2009 I met a nice girl whose british through my family ties and we started dating and finally in July 2009 we did our religious wedding ceremony and moved in togather. and then the following year I applied for COA letter to register my wedding in UK. I got granted for COA and we register our Legal wedding in registrar office in december 2010.(we dont have any baby yet but we are trying)

My wife had an accident in 2008 in result of which her left foot got metal platlets and arthritis in right foot becouse of which she wasnt in work and was on incapacity benefit. When we moved togather she was styll on benefits.

In August 2011 we went to see a local solicitor and found out that we can apply under human right article 8 becouse my wife can not work becouse of her foot and thats why she can not sponsor me if i go back to my home country and apply spouse visa from there. We submit all the evidence of us living togather from August 2009 and our religious registered wedding certificate along with English Wedding certificate.

Then in september 2011 my wife got job in local supermarket and as soon as we got the wage slips and bank statment in which her salary got paid we showed it to the solicitor and he said it will help my application and he sent it off to home office.

Last week Home office sent my wifes passport back along with a letter stating that they dont need my sponsors passport anymore and they need to do some further enquiries. Today I recieved another letter stating that they refused my application becouse i do not come under human right article 8 and they dont give me any right of appeal and ask me to make arrangements of going back to my country and informing ukba.

According to them I am 26 years old and i live long enough in this country to gain some skill which i can utilize back in my home country and start a new life there. Then what bout my wife? They even said i can use modern communication stuff to stay intouch with family but A husband and wife can not just live without eachother relying on it.

Now I dont mind going back to my country and applying as a spouse becouse my wife is working here paying tax paying rent of a flat where we living and she is not taking any sort of benefits at all but She is bit scared that once I leave this country I can not come back becouse this refusal I recently got states becouse I overstayed my student visa and Did not passed ESOL test for spouse visa But When We were making application I been told by my solicitor That if i Pass LIFE IN THE UK test Instead that will be fine and I sent my passed life in the uk certificate along with Application.

Now I whould like some advice on what my next stage should be and what are my chances of returning back to uk and joining my lovely wife, becouse I lost faith in my solicitor becouse of his advise regarding passing life in the uk test instead of ESOL. However I am going to see my solicitor and will post what he advise me to do next as well as I want to know If anyone been through same or likewise. Many thanks for taking time out and reading this post.

UPDATING 08:52HRS 08/02/2012

GOING TO SEE THE SOLICITOR AND SENDING A RECONSIDERATION... HOPEFULLY IT WORKS

I am still struggling to find a centre from where i can pass the required test as this test thing is getting all so complicated.. I whould like to ask if anyone passed this test through UK and if yes then please Help me

[Obie]

I believe you may have a strong case for JR.

You came to the UK lawfully, stayed lawfully, made your application in time, an application which has been acknowledged by the Postal authorities.

The reason for your overstay was not of your making and you should really not have to pay for it.

If your lawyer, he should proceed with JR claims. You have a good case, especially with your wife's health.

[ultragravity]

I believe you may have a strong case for JR.

You came to the UK lawfully, stayed lawfully, made your application in time, an application which has been acknowledged by the Postal authorities.

The reason for your overstay was not of your making and you should really not have to pay for it.

If your lawyer, he should proceed with JR claims. You have a good case, especially with your wife's health.

CAN YOU DEFINE WHAT IS JR?? is it juditial review!!

[Obie]

Yes that is correct. JR is the abbreviation Judicial review.

The reason is suggested it is because you have no other remedy, and not just that, the reason for your current situation was to all intent and purpose not of your making.

You were a victim in the sense that the post office lost your document, and you had to reapply again, which caused you to overstay.

Maintenance of a robust or effective immigration control cannot be a strong public interest in refusing your DLR under Article 8.

[ultragravity]

Yes that is correct. JR is the abbreviation Judicial review.

The reason is suggested it is because you have no other remedy, and not just that, the reason for your current situation was to all intent and purpose not of your making.

You were a victim in the sense that the post office lost your document, and you had to reapply again, which caused you to overstay.

Maintenance of a robust or effective immigration control cannot be a strong public interest in refusing your DLR under Article 8.

Thanks very much for raising this point I am going for an appointment tomorrow morning and will Ask him about JR and Will get back to you. Many thanks

[vinny]

Should I stay or should I go?

[ultragravity]

Should I stay or should I go?

Was great help. Many thanks vinny.

[ultragravity]

Hi, I come in uk on student visa in december 2003, in May 2007 I sent my passport through royal mail for extension but my passport has been lost through post by royal mail for which they issued me responsibility letter and apology letter but only after 6 months of constantly ringing them up and then after six months i went to Pakistani embassy in london to reapply for a new passsport but i have been told i need a police report in short they dint issued me a new passport and it took well 15 months and finally in 2008 septermber i been issued with a new pakistani passport. Then i went to a solicitor and have been told that i can not extend my previous student visa becouse of the gap in time. I overstayed my visa then.

In 2009 I met a nice girl whose british through my family ties and we started dating and finally in July 2009 we did our religious wedding ceremony and moved in togather. and then the following year I applied for COA letter to register my wedding in UK. I got granted for COA and we register our Legal wedding in registrar office in december 2010.(we dont have any baby yet but we are trying)

My wife had an accident in 2008 in result of which her left foot got metal platlets and arthritis in right foot becouse of which she wasnt in work and was on incapacity benefit. When we moved togather she was styll on benefits.

In August 2011 we went to see a local solicitor and found out that we can apply under human right article 8 becouse my wife can not work becouse of her foot and thats why she can not sponsor me if i go back to my home country and apply spouse visa from there. We submit all the evidence of us living togather from August 2009 and our religious registered wedding certificate along with English Wedding certificate.

Then in september 2011 my wife got job in local supermarket and as soon as we got the wage slips and bank statment in which her salary got paid we showed it to the solicitor and he said it will help my application and he sent it off to home office.

Last week Home office sent my wifes passport back along with a letter stating that they dont need my sponsors passport anymore and they need to do some further enquiries. Today I recieved another letter stating that they refused my application becouse i do not come under human right article 8 and they dont give me any right of appeal and ask me to make arrangements of going back to my country and informing ukba.

According to them I am 26 years old and i live long enough in this country to gain some skill which i can utilize back in my home country and start a new life there. Then what bout my wife? They even said i can use modern communication stuff to stay intouch with family but A husband and wife can not just live without eachother relying on it.

Now I dont mind going back to my country and applying as a spouse becouse my wife is working here paying tax paying rent of a flat where we living and she is not taking any sort of benefits at all but She is bit scared that once I leave this country I can not come back becouse this refusal I recently got states becouse I overstayed my student visa and Did not passed ESOL test for spouse visa But When We were making application I been told by my solicitor That if i Pass LIFE IN THE UK test Instead that will be fine and I sent my passed life in the uk certificate along with Application.

Now I whould like some advice on what my next stage should be and what are my chances of returning back to uk and joining my lovely wife, becouse I lost faith in my solicitor becouse of his advise regarding passing life in the uk test instead of ESOL. However I am going to see my solicitor and will post what he advise me to do next as well as I want to know If anyone been through same or likewise. Many thanks for taking time out and reading this post.

UPDATING 08:52HRS 08/02/2012

GOING TO SEE THE SOLICITOR AND SENDING A RECONSIDERATION... HOPEFULLY IT WORKS

Went to see the solicitor this morning and he told me send for a reconsideration and he give 21 days notice for them to reply back and if it follows in refusal again then we can go with a barrister who can go through the refusal letter and we can see if we can lodge a JR. About the English Language test my solicitor asked me to pass ESOL in the meantime but I already had passed LIFE IN THE UK which according to HO not even considered it means i have to pay £250 or odd for this test. ANY ADVICE REGARDING THT. MANY THANKS

[Greenie]

Life in the Uk test is for settlement so the solicitor is correct to say that you need to take an English language test. See English language test

[Obie]

It is a bit funny, and i am not saying anyone is wrong, but if someone is applying for Discretionary leave outside the rules, as it is pretty clear this is the case with OP, due to the fact he does not hold a valid leave to remain, it is questionable whether he should follow the provision of the rules, when in actual fact they are applying outside of it.

The requirement for English Language Test is clearly a requirement embeded in the Immigration rules, and people who meet its requirement are issued with a 2 years Leave to remain, once an Article 8 successful applicant are issued with a 3 years Discretionary leave, after which a further 3 years is issued and then an ILR.

Article 8 right to family life is not dependent on passing an exam in my view.

[Greenie]

It is a bit funny, and i am not saying anyone is wrong, but if someone is applying for Discretionary leave outside the rules, as it is pretty clear this is the case with OP, due to the fact he does not hold a valid leave to remain, it is questionable whether he should follow the provision of the rules, when in actual fact they are applying outside of it.

The requirement for English Language Test is clearly a requirement embeded in the Immigration rules, and people who meet its requirement are issued with a 2 years Leave to remain, once an Article 8 successful applicant are issued with a 3 years Discretionary leave, after which a further 3 years is issued and then an ILR.

Article 8 right to family life is not dependent on passing an exam in my view.

I agree that Article 8 is not dependent on the applicant passing an exam. However, the Chikwamba principle is essentially that it is not proportionate to expect a spouse to leave the country in order to apply for entry clearance when he otherwise meets all of the other requirements of the category.

The OP has a stronger argument if he meets all of the requirements of the rules but for having entry clearance and thus the only argument on the UKBA's side is the public policy point of requiring a person to have prior entry clearance/leave which permits switching - which the court has held in Chikwamba is not generally proportionate.

[Obie]

I respect your views and understand were you are coming from Greenie.
On the other hand, i dont fully accept that Chikwamba Judgement establishes a principle, that it beneficiaries should meet all the rules in the immigration rules, (which incidentally is not a statutory instrument) save for Entry Clearance or leave to remain to qualify. Thankfully english test never existed in the days of Chikwamba, but i am sure the outcome would have been the same if Miss Chikwamba had refused to take or fail such test. Unfortunately we may never know.

Hopefully, Chapti will be overturned soon, now that the Court of Appeal has granted right to proceed.

I really have had it up to my neck with this mumbo Jumbo English test

[Greenie]

Sorry but that absolutely is the Chikwamba principle, as recently confirmed in Hayat

The significance of Chikwamba v SSHD [2008] UKHL 40 is to make it plain that, in appeals where the only matter weighing on the respondent’s side of an Article 8 proportionality balance is the public policy of requiring an application to be made under the immigration rules from abroad, that legitimate objective will usually be outweighed by factors resting on the appellant’s side of the balance.

I doubt that if Chapti suceeds it will be to the extent that it is found that the English language test is unlawful in all cases. In the case of the OP, he came here as student, has been here for 9 years and has managed to pass the LITUK test, so should have no problem passing a basic English language test.

[Obie]

What i said is that in 2004, when Miss Chikwamba lodged her application, the immigration rules contained element like maintenance and accommodation requirement, which are legitimate aims under Article 8(2), in regards to protecting the economic wellbeing of a state. Burdensome discriminatory english language test was non existent then, and i am sure if it was present, and miss Chikwamba had refused to take it or failed, it certainly will not have tilt the balance in SOS's favour.

There was no judicial consideration of English test in Chikwamba, and the provisions in the immigration rules then were in accordance with the legitimate interest pursued under Article 8(2), which i believe is fair that any right minded judge expect applicant to meet.

We have to be mindful not to hijack this thread, so perhaps we may have to agree to disagree on some point.

Again, i am not saying OP should not take test, neither do i show any disrespect for individuals who suggested he takes the test.

[ultragravity]

I am willing to pass the English test but Finding it really hard to find appropriate centre where i can book the test wvrywhere I am phoning they want me to attend classes and scheduled Exam dates. PTE Accademic and IELTS too hard as I just need basic ESOL skill for life A1 level. Please Help

[Greenie]

I am willing to pass the English test but Finding it really hard to find appropriate centre where i can book the test wvrywhere I am phoning they want me to attend classes and scheduled Exam dates. PTE Accademic and IELTS too hard as I just need basic ESOL skill for life A1 level. Please Help

PTE Academic test at A1 so not sure why you think it is too hard. There are plenty of ESOL courses around and Tinity College also do Grade Examinations in Spoken English, which is specifically for spouse applications.

[Greenie]

What i said is that in 2004, when Miss Chikwamba lodged her application, the immigration rules contained element like maintenance and accommodation requirement, which are legitimate aims under Article 8(2), in regards to protecting the economic wellbeing of a state. Burdensome discriminatory english language test was non existent then, and i am sure if it was present, and miss Chikwamba had refused to take it or failed, it certainly will not have tilt the balance in SOS's favour.

There was no judicial consideration of English test in Chikwamba, and the provisions in the immigration rules then were in accordance with the legitimate interest pursued under Article 8(2), which i believe is fair that any right minded judge expect applicant to meet.

We have to be mindful not to hijack this thread, so perhaps we may have to agree to disagree on some point.

Again, i am not saying OP should not take test, neither do i show any disrespect for individuals who suggested he takes the test.

I am aware of when the Chimwamba case was heard. I appreciate that we have possibly 'hijacked' the thread, however, for the benefit of others who may be reading the thread, we cannot speculate what the court would have found in relation to the English test in the Chikwamba case however, what we do know is that the principle in the case, as confirmed in the recent case of Hayat, is that where the SSHD's only argument is that the appellant should go home and apply for entry clearance, and he otherwise meets all of the categories of the immigration rules, the individuals article 8 rights will outweigh the legitimate aims of society. This is why in cases such as those of the OP, solicitors advise that as far as possible, applicants need to show that they meet all of the requirements of the rules, including taking an appropriate English language test - this requirement has not yet been found by the court to be burdensome or discriminatory and in the case of the OP, he has been here for nearly a decade, and came here originally to study - I therefore don't think he could argue that having to take the test is burdensome or discriminatory, but that is my opinion.

This is not to say that an Article 8 case would not win if the English test was not passed, but the applicant would have a far stronger argument if he met this and the other requirements of the rules.

[pennylessinindia]

I am willing to pass the English test but Finding it really hard to find appropriate centre where i can book the test wvrywhere I am phoning they want me to attend classes and scheduled Exam dates. PTE Accademic and IELTS too hard as I just need basic ESOL skill for life A1 level. Please Help

If you came as a student so many years ago how do you not have enough English tp meet PTE ?

[jimmurray]

Royal Mail are useless mate just this week they lost my marriage certificate, luckily I sent a certified copy passport instead of the real one...phew

Your English seems very good and should be a doddle to pass the exam.

The trick with these clowns is to remain persistent, most of it is pyschological warfare trying to make you quit..I am appalled at the things they said to you, sounds very unprofessional and immature from a 'government agency'...

[ultragravity]

I am willing to pass the English test but Finding it really hard to find appropriate centre where i can book the test wvrywhere I am phoning they want me to attend classes and scheduled Exam dates. PTE Accademic and IELTS too hard as I just need basic ESOL skill for life A1 level. Please Help

If you came as a student so many years ago how do you not have enough English tp meet PTE ?

I live in this society and my English is quite good, I did passes General English Language in upper intermediate level Approved by British Council from Language School in London in 2003 and did attached that With the original FLR application. I will go for ukba approved test this time again and will fullfill thier requirment. Will update when I will book my Test.

[ultragravity]

Just an update I booked ESOL Test for this coming tuesday. Thanks everyone for assisting me.

[ultragravity]

Just a further update, I today passed Spouse visa English Speaking and listening test from trinity college London. It will take 7-12 days untill I recieve my certificate but I have been given my result which I gave to my solicitor.
Now according to my solicitor he wants to submit a fresh application rather then sending it for a reconsideration. I dont know if they will consider this English test which I passed if I send it for a reconsideration, and if I send it for a reconsideration what shall I expect as I mention all my case Information in an earlier post. Many thanks ..

[mimieangel]

hie am in same situation as yours, my solicitor sent in a fresh application/ formal letter for reconsideration but they just ignored it. So he has gone the JR route and given them 21 days to reply so am waiting on response. The H/O also retained our marriage certificate; however I have always had two copies from the registrar when we got married. Please can u keep updating on your case and will let you know how I get on as well

[ultragravity]

hie am in same situation as yours, my solicitor sent in a fresh application/ formal letter for reconsideration but they just ignored it. So he has gone the JR route and given them 21 days to reply so am waiting on response. The H/O also retained our marriage certificate; however I have always had two copies from the registrar when we got married. Please can u keep updating on your case and will let you know how I get on as well

will surely do

[ultragravity]

Today I went to see my solicitor again and I wanted some answers off him that what he will do next.
According to him me being illegal in UK from 2007 till 2008 may be not my fault but from 2008 since I got my passport I styll havent made any formal application to home office or did not went back to my county to come back as student. So he said we can styll ask them to reconsider the case but the outcome is obvious as I have been illegal and its gonna be hard for me to legitimate my stay withing the uk, then I asked him if me going back to my county and applying from there is only option then why am i sitting infront of you paying you crazy money to represent me. According to my solicitor JR is no option in my case, we have to send it for a reconsideration and after that if styll no luck then I have to go back to my country and apply a spouse visa from there knowing that its a mission for an overstayer going back at own cost and getting entry clearence from Pakistan.
So now I am waiting for my ESOL certificate, after which my solicitor send it for a reconsideration but in the meantime I am going to go for a second opinion. Any advice will be highly appreciated. Many thanks.