Wife rejected for FLR, Passport Held PLEASE HELP

[Jon_H]

Hi all, I would appreciate some advice from your experienced heads.

I am a british citizen, and I married my Australian wife last June, in a CofE church (hence not needing approval). My Wife was here on a Work Pemit Visa which expired on the 20th March.

For various reasons we applied on the 2nd of April for LTR as my spouse using form FLR(M), and unfortunately my payment card rejected and I had to resend and this application was processed on the 21st April (31 days late). Hence at the time of the application my wife's LTR had expired. on this basis the application was rejected with no grounds to appeal, and she was told she must leave the country ASAP but with no deadline given.

I can understand this entirely, but what I am now worried about is:

1) They have sent her passport to our local enforcement office in Hounslow and this seems to indicate they will issue her with a IS151 and make her leave the country. What are our options to avoid this? It seems crazy to me that we have to fly across the world to make basically the same application and then fly back again just over 1 month talk to up.

2) Should we even try to avoid leaving? it will cost us GBP2000 approx to get her to Australia and back assuming she gets a spouse Visa in Canberra, but the risk it that it gets referred to the UK, takes too long and her job isn't open for her when she returns.

3) If we do go down the route of leaving the country, how long does it usually take to get the passports available at the airport assuming they don't give it back? As my wife can now not work following the refusal this is costing us money every day.

The IND has also held our marriage certificate and both our payslips sent with the application. Can they do this and when are they likely to give them back? At the airport as well?

These are literally all the facts, it was not a deliberate overstay, I believe we have a very strong application for my wife to come straight back in (Home owners, both employed and well paid, married and been together 3.5 years). In addition any experiences of how long applications have taken in Canberra when made in person would be appreciated.

Any advice would be much appreciated. Thanks all.

Jon

[Jon_H]

Anyone? A quick update, we have spoken to the local enforcement office and they have suggested that they might not necessarily issue my wife with an IS151 if she is willing to leave the country of her own accord soon, has anyone else had this happen?

[Jeff Albright]

Jon,

Sorry to hear about the problems. I was going to reply but have been away for a weekend...

For various reasons we applied on the 2nd of April for LTR as my spouse using form FLR(M), and unfortunately my payment card rejected and I had to resend and this application was processed on the 21st April (31 days late).

Sorry, this was very unfortunate of you but the law says that you must have applied for an extension before the expiry date of her visa. Normally, "before" means at least 4 weeks.

Hence at the time of the application my wife's LTR had expired. on this basis the application was rejected with no grounds to appeal, and she was told she must leave the country ASAP but with no deadline given.

Yes, this is legally correct.

1) They have sent her passport to our local enforcement office in Hounslow and this seems to indicate they will issue her with a IS151 and make her leave the country. What are our options to avoid this?

Buy the tickets, call the LEO, make an appointment with them, give them a copy of the tickets and they will arrange for the passport to be sent to the airport to be collected on departure.

It seems crazy to me that we have to fly across the world to make basically the same application and then fly back again just over 1 month talk to up.

Sorry, but this is universal law. The same could have happened to you in Australia if you did the similar thing there, even worse, as there is an automatic ban from entering Australia afterwards for 3 years. There is no such ban in the UK.

2) Should we even try to avoid leaving? it will cost us GBP2000 approx to get her to Australia and back assuming she gets a spouse Visa in Canberra, but the risk it that it gets referred to the UK, takes too long and her job isn't open for her when she returns.

Regret this but it is true. Trying to fight this case from here could cost even more and will still end up in her having to leave. It was the responsibility of both of you to be familiar with the Rules and respect them.

As my wife can now not work following the refusal this is costing us money every day.

Well. she has to leave as soon as possible but she can still work until the last day. The employer should be informed and I am sure they will understand. It is advisable to her to apply for an entry clearance to the UK from now on to avoid being refused entry. It is usually easier to explain the situation to an Entry Clearance Officer at the Embassy than to an Immigration Officer in the airport.

The IND has also held our marriage certificate and both our payslips sent with the application. Can they do this and when are they likely to give them back? At the airport as well?

Yes, you can request for them to be sent there or when she is back, they can send it back to your home here.

These are literally all the facts, it was not a deliberate overstay

The law does not distinguish between intentional or not intentional overstay. If you break the law, you must leave. The same is in Australia, but stricter.

I believe we have a very strong application for my wife to come straight back in (Home owners, both employed and well paid, married and been together 3.5 years).

I am sure there will be no problem. She may even get her visa within the same day if she explains clearly and confidently what happened.

In addition any experiences of how long applications have taken in Canberra when made in person would be appreciated.

Due to the fact that Australia is not a visa country, there should not be any queues so I don't think there will be any delay at all on their part unless they have to refer her application to the UK.

Best wishes and hope everything will go well and quick.

[Jeff Albright]

Anyone? A quick update, we have spoken to the local enforcement office and they have suggested that they might not necessarily issue my wife with an IS151 if she is willing to leave the country of her own accord soon, has anyone else had this happen?

Well, in fact whether they issue her with the IS151A or not won't make much of a difference. The Embassy won't be interested in the IS151A itself. What they will have to be informed about is the fact that she has been in the UK previously and due to unfortunate concatenation of circumstances (credit card error) her application was late and she was asked to leave (there is a question "Have you ever been removed, deported or otherwise asked to leave the UK" - the answer is "yes" and there is a space below to explain). The rest is per the application itself.

Good luck.

[Jon_H]

Thanks Jeff, Your views echo my thoughts, it is good to have some validation. I would hate to go through all the anxiety of seperation and worry about whether she gets the spouse Visa in Canberra and then find out that we could have done somthing else.

We totally accept that this is our fault, unfortunatley that makes it feel worse not better

Thanks for your help.

[Jon_H]

Can anyone confirm whether the request for a COPY of my passport to accompany my wife's spouse Visa application means that the original is not acceptable? Or whether it matters if I am in the UK and my passport is in Canberra?

If i has to be a copy does anyone know if the Passport Office in London can make certified copies?

Cheers

Jon

[Marco 72]

Jon_H, if your wife has been in the UK for at least three years (in whatever capacity) she might consider applying for naturalisation from Australia using the "Ppron method" (see here). The method exploits a loophole in the British Nationality Regulations which allows people to apply for naturalisation outside the UK without holding ILR, provided they have been living in the UK for at least three years and are married to a British citizen.

[Jon_H]

Unfortunately she has been here only 2 years. Thanks for the suggestion.

[Jon_H]

Update: This evening I received a call from my MP, who I had emailed on Monday and who was out of the country until this evening. He has supported us very strongly and committed to immediately write to the home secretary and the head of the immigration service with a view to halting all proceedings against my wife and to ask the home secretary to review the case.

I shall now await the response, which I am told we should expect in around 4 weeks. Even if this doesn't change anything in the long run it will enable us some time to get our finances in order.

Fingers crossed.

[SYH]

Hey that's really great
Good for you, for thinking of contacting him.
As much as I thought it was a lousy chain of events for you
I didn't think there was much more that could be done.
All the best

[Jeff Albright]

Update: This evening I received a call from my MP, who I had emailed on Monday and who was out of the country until this evening. He has supported us very strongly and committed to immediately write to the home secretary and the head of the immigration service with a view to halting all proceedings against my wife and to ask the home secretary to review the case.

I shall now await the response, which I am told we should expect in around 4 weeks. Even if this doesn't change anything in the long run it will enable us some time to get our finances in order.

Fingers crossed.

Jon, sorry mate but you still don't really seem to understand the situation fully and no offence, but what you say sounds a bit naive.
What has it got to do with MP? MP has no power of changing the set rules and procedures, which apply to everyone in this country.
MP can only assist you in getting a quicker response and ask for the priority consideration of your case. There are thousands of such requests per day that MP Correspondence Section at the Home Office receives. What makes you think your wife's case is different?

The BIA will probably simply write a letter addressing to your MP plainly reiterating what they have already told you, which will be passed on to you. After that the role of your MP will be over. There is nothing, absolutely nothing compassionate or compelling in your wife's case, that could persuade someone at the Home Office to exercise discretion outside the Rules in order to regularise her status. There are thousands of people, whose situation is a lot more difficult than your wife's, for example, someone from the war torn countries, someone who has lived here for decards, etc. and they are still required to leave the UK in order to apply for an entry clearance from abroad. This is the set procedure for every foreign national

The law requires every non-British, non-EU national or anyone without right to abode, to be in possession of leave to enter when crossing the UK border. This can be obtained from the British Diplomatic Mission overseas or for non-visa nationals - from an Immigration Officer at the port of entry. Whilst in the UK any foreign national must have a continuous permission to remain in the country. You can only extend that permission by applying for variation of the existing leave. If your leave is over before you apply, you can no longer vary the leave that you do not have anymore. You can only leave the UK territory and obtain a new leave to enter the UK and then extend it again when the time comes. This is just that simple.

Your situation is unfortunate and everyone will be sympathetic to you, no doubt. But the law is the law and the best for you is to be realistic, plan for your wife to travel to AU and prepare the full and correct set of documents for her entry clearance application so she could return to you as your spouse as soon as possible.

[Jon_H]

I understand it the situation and don't hold out a great deal of hope, however as my MP is a qualified Lawyer, part-time district judge, former shadow home affairs minister and founder of the IAS I am inclined to give him a chance to have a go.

What harm can it do? He has also said my wife should continue to work until she leaves (as you did) so this should limit the impact providing her employer agrees to allow her to continue working.

It may come to nothing, but if so my wife's status will be no different, and her application in Canberra may have a letter from our MP in it.

[Jon_H]

Hi all

Due to my Wife's employer not wanting her to work until she has a new visa sorted, we have made the decision to fly her home.

We booked the flights and went to the LEO today, they were very friendly and did not issue her with an IS151 or stamp her passport. I guess she may get a stamp at the airport, but hopefully the fact that the LEO didn't stamp it will mean the Immigration officials at the airport won't either.

Thanks Jeff for your advice, we feel like we have taken control of this now rather than just waiting and hoping. Knowing our luck, about the time we pay the AU$1300 for the Entry Clearance we will get a result via our MP at this end.

We have looked at the application lists from the succesful spouse visa apps on here, and will be spending all day tomorrow indexing our huge pile of documents. Wish us luck!!

[Jeff Albright]

Glad it went well. So from what you said it appears that she has been given her passport back.

Just one suggestion. If she is flying from Heathrow or Garwick, specifically during a day, she might encounter exit immigration checks. If she does, they would almost certainly hand her over the IS151A and will put a black mark in her passport. I wish you had asked the LEO to issue you a form of a letter confirming that they were holding on to her file and passport and the issue is now resolved and it has been agreed that she would be flying back. She could then present this letter to the exit control if necessary.
Whilst IS151A and that stamp does not really matter for the Embassy in Canberra, this may be a problem for her when travelling within European Union or the USA, for example. Try to avoid this.

[Jon_H]

Hi Jeff, she did indeed get her passport back and all the other paperwork they held. I will ensure Lisa has all the documentation with her in the hope that she can avoid the IS151A at Heathrow. Hopefully the fact that she has her passport and the letter from the IND will do the trick.

She flies during the day so I guess she is pretty much guaranteed to pass through exit control.

Thanks

Jon

[Jeff Albright]

Good luck to her! Let us know how it went.

One more thing to say, even if she is stopped. she must look confident and clearly explain what happened.
Tell her NOT TO SIGN any document she may be asked to sign (is she does not sign, they have no power to do anything to her). Once she is out of security control, she is free to travel and no one can stop her, force her to do anything, as she is technically outside of this country already...

Best wishes!

[Jon_H]

Thanks Jeff, I will tell her that. Would it be the IS151A that they want her to sign? Or an admission that she has overstayed?

[Jeff Albright]

Would it be the IS151A that they want her to sign?

No, the IS151A is handed after she has signed some form of paper. I am not sure exactly what it is but tell her not to sign anything. All she has to say is that the issue has been dealt with the local LEO and has been resolved, full stop. No discussions, no signing, nothing. Technically, I think she can just ignore everything and keep walking without looking back. They have no power to stop her from leaving the country.

Or an admission that she has overstayed?

Don't know mate, sorry.

[Jon_H]

Update! It was very busy at Heathrow and there was no exit control in operation, so my wife got out without a stamp or IS151A. She is on way home and has the 3 inch thick application to present at the BHC this week.

[Jon_H]

Update!

My Wife got her Spouse Visa today, 8 days after applying in person in Canberra. Thanks for the advice (Jeff) and also to those who have shared their experiences. Becuase of the overstay, the ECO said they would have to make some checks - presumably with the HO, and said she would have it by today, and obviously was good to his word.

Huge relief.

[avjones]

Glad you got it sorted out.

[Jeff Albright]

Jon, well done. Congratulations.
I have had no doubt, though. Making it easy for ECOs ensures that you get help from them back. It is all about the attitude.

All the best for the future!