I've only found this forum recently, but noted from the comments here that in the last few months, that there have been cases reported of Entry Clearance Officers (ECOs) using Section 320(11) of the Immigration Rules to reject the visa application of partners wishing to enter the UK to reside with a British citizen. I'm posting the recent experiences of my wife and myself in order to add another case to this list rather than solicit any particular advice, though if anyone has comments about the issues raised here I will be more than interested to read them.
Last year I left the UK with my Korean girlfriend of seven years, who had overstayed on her visa for three of those years. We got married in South Korea and six months later she applied for a spousal entry visa in order to return with me to reside in the UK. This application was rejected by the ECO under Section 320(11), because of the previous overstay, and Section 281(i) of the Immigration Rules, on the grounds that having been out of the UK for nine months I was not 'present and settled'.
I was rather perturbed to find that my nine months absence from home prejudiced my wife's return, as it seemed to make me a second-class citizen, legally speaking. However, in preparing an appeal I discovered the Diplomatic Services Procedures - Entry Clearance Volume 1 (28/09/2006), which in Section 13.7 provides direction to ECOs in interpreting 'present and settled':
Strictly speaking, a British Citizen who has been resident abroad but who returns to the United Kingdom to live is not 'admitted for settlement'. However, if he or she expresses the intention of returning to the United Kingdom to reside, you can regard him/her as present and settled there.
As such, it appeared that the ECO misdirected herself in denying the application under 281(i). My wife had mentioned in her interview that I was planning to sell my house when I returned to the UK, and the ECO had used this in her decision as 'evidence' that I was not intending to stay in the UK, whereas I would argue that all it proves is that I was planning to move within the UK, which is in fact the truth - although I would also say that establishing the truth is something that the ECO wasn't interested in from the beginning, given her line of questioning and, from how my wife described the interview to me immediately afterwards, hostile attitude. In fact, I'm a little curious as to why we would spend a non-refundable £500 on a spousal-entry visa if we weren't planning to return to live when it would have been far cheaper - and perhaps easier - to apply for a shorter-term visa.
The issue with the house sale, and other peripheral matters raised, seemed consistent with an ECO determined to build a case on increasing levels of supposition, but it went further than this. I requested - and eventually obtained - the ECO's Interview Record for my wife, and it was an interesting read. Not only were there contradictory statements of fact by the ECO within that document, these carried over into the Notice of Immigration Decision such that statements made in the Decision were not consistent with what had been documented in the Interview Record.
I didn't really think the ECO's decision stood up to much scrutiny, and neither did my MP who wrote to the Embassy in support of my case. I've had a couple of bad experiences with lawyers in the past, and between this and the £2,000 to £3,000 minimum quotes I was given for preparing and submitting an appeal, I decided to do it myself. I thought 281(i) was very weak and we had good grounds for appealing it, and I made sure that I made a point of stating that it was my intention to return to reside in the UK as part of this.
We never heard from the Embassy again. As I understand the process the Entry Clearance Manager can overturn the original decision, but when I received a date for an Asylums and Immigration Tribunal (AIT) Hearing back in the UK I realised that this stage of the appeal must have failed.
In the matter of Section 320(11) my wife was not in receipt of public funds or support during her overstay, nor did she work illegally, or receive any correspondence or directives from the authorities in this matter and fail to comply with them. Even so, if her overstay alone were sufficient reason to refuse a spousal entry visa then it seems curious that the ECO should feel it necessary to find other rules to justify a visa rejection, particularly when this seems inconsistent with official guidelines and when so much is built purely on the ECO's supposition. On the other hand, if Section 320(11) can not be used to prevent spousal entry it means our case rests of 281(i), the inherent weakness of which I thought should have seen it fall at the first challenge.
The experience has been an extremely bitter one for me. I feel the Government reduced my rights as a British citizen because I spent nine months out of the country, but what stings the most is what the ECO wrote in in the conclusion of her decision:
I have also taken account of the provisions of Article 8 of the Human Rights Act. I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I note that refusing this application will not interfere with family life, for the purposes of Aritcle 8 (1), which you can enjoy in Korea.
I appreciate this is a fairly standard closing statement, but it seems an odd interpretation of the European Convention on Human Rights that a British citizen should find themselves effectively excluded from residing in the UK by virtue of the permanent exclusion of their wife. It seems quite clear that the Government are telling me that if I want to enjoy my 'family life', it will have to be in Korea and not in the UK. I don't know what other people would call that, but to me it seems like I've been effectively exiled.
Right now I'm facing the AIT Hearing in a few weeks and trying to decide whether I can afford to spend those thousands of pounds for the lawyers to take over and represent us at the Hearing. Otherwise it's going to be me versus the Government lawyers, a bit of a David and Goliath battle, and I'm beginning to think very negatively about the chances of winning. My wife overstayed once in the UK, but I don't think that justifies the ECO to behave the way she has done and present the case the way she has, I don't think it justifies the infringements of my rights or my effective exclusion from my own country for the foreseeable future, but my guess is that someone, somewhere, has made a decision to make life very difficult for previous overstayers, and we've become victims of this.
Because 281(i) as applied in our case seems to be little more than a smokescreen, I believe the motivation behind my wife's visa refusal is really 320(11). As such, I would agree with those here who believe the denial of spousal entry visas for previous overstayers has become Government policy. I've wondered whether this policy has been initiated by politicians or civil servants, because I've been holding out some hope that my MP may still be able to do something even at this late stage, which seems more likely if this decision hasn't come down from the political hierarchy. However, recent political changes and reshuffles in the UK seems to fit with the harsher treatment people are now reporting on these forums, so I wonder whether it is political rather than bureaucratic in origin and unlikely to be easily challenged.
Mike
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Thanks paulp