Spouse visa refused - overstay/difficult interview

[mzungu]

Hi

We have recently had our spouse visa application rejected and just wondered if anyone would be kind enough to give us any pointers on what we can do now to rectify our situation.

We’ve made some mistakes (quite a lot really) and we haven’t done ourselves many favours but we just want to get back together, whenever, wherever that might be!

My wife and I have been living together since August last year. She is Kenyan, I am British.

My wife had been here on a student visa, her attendence to classes had been "sporadic" and she was refused a further student visa earlier this year. We appealed this hoping my divorce would come through in the mean time and enable us to get over to Kenya to get married there ASAP.

The appeal (rejected) was super quick, the divorce horribly slow to arrive (typical!).She ended up overstaying 4 months until leaving for Kenya 2nd September where we got married. We did however write to the H.O. through a lawyer to request a little extra time to return to Kenya, to leave at the latest at the end of August to which they did not reply to at all. (My divorce only finally came through in July which was partly why she overstayed as we did not want to be apart).

We prepared what I believed to be a quite thorough portfolio of evidence showing apart from the basic required documents, details of my employment, a job offer for her, letter from employment agency vouching for her employment prospects on her return, letter promising accommodation and financial support if necessary from my parents, letters of support from siblings, individual statements giving the history of our relationship and how we met and many photos and cards detailing our relationship and hers with my family. This is to name just a very few….

The problem was that in the interview she was quite intimidated and rushed for brief answers as the ECO typed up her responses, frequently telling her to stop talking whilst she typed and my wife’s answers after this were too brief and sometimes seemed vague. On some issues she knew the explanation but just “went blank” with nerves. The ECO pulled her to pieces and these were their main doubts:

Because she did not give enough details of my previous marriage (how long I was married for, when I had separated) was considered to not know enough about me.
(-Not so surprising that they would think this, but really it is something that we do not talk about very often as my previous marriage was actually quite a horrific experience!)

She was asked why she overstayed and when she said that it was basically to clear up her affairs here and help with my ill grandmother was considered to have not given credible reasons.

Her main reason apart from these was to avoid being away from me for months although we knew that this would not be accepted as a valid reason to overstay.

She was also caught out on working in a second job (beyond the limited terms of her student visa, although she always paid tax and N.I. - we accept this does not justify it) which she did not deny but was not considered to have been sufficiently open about

My parents have, since I went through some financial difficulties living in Spain 2 years ago covered my son's maintenance payments and wrote a letter confirming this and stating they would continue to, so as to assist us to get ourselves established in our married life, however the ECO doubted that they would want to continue doing this although there was nothing to suggest this either in their comments in their letter of support or in their financial situation.

We were occasionally overdrawn and there were several other minor discrepencies between bank statements and her explanations which were not explicit enough -even though there was no attempt to conceal anything on this or indeed anything to be concealed-.

Result: Visa refused: -Not satisfied that you

-intend to live permanently with your spouse
-will be adequately maintained without recourse to public funds

Most of these arguments can be cleared up and indeed there were some glaring factual errors in the ECO's refusal letter which suggest that our documentary evidence was not looked at (it seems the decision was based purely on the application form and interview).

We naively thought that the mass of evidence covering each requirement many times over would make for a slightly less hostile interview (although we knew it would be a challenge) and obviously underestimated how hostile the tone of the interview would be due to her previous immigration history.

I am unable to move to Kenya to join her as my son lives in Spain and I bring him to the UK regularly (picking him up in Spain and returning him there at the end of his visit) for contact visits, however there is no cheap Ryanair flight between Kenya and Spain at present and moving to Kenya would suppose me losing contact with him which I am unwilling to do. (Apart from virtually being impossible due to the disparity in wages between UK and Kenya) This although explained clearly in the interview was not considered when she was asked why I did not just move to Kenya and on the rejection letter there was no acceptance of any conflict with article 8 of the European Convention on Human Rights legislation on the right to family life.

So we have learnt the hard way that overstaying is a very bad idea and never to underestimate how tough the interview can be…..has anyone got any ideas on what they think we should do now?

Current appeal waiting times can be 6-12 months to go to court, am I right?

How should we approach appealing this and what will count most when appealing? There's a mountain of stuff against us

Can we speed things by reapplying instead after a few months?

Should I return to Spain for a period (where I am registered for Social Security and have a “foreigner” number and try to go for EEA family permit?)

If anyone can give us any tips we would be really grateful!

Cheers

Mzungu