Aaaaaargghhh!...wife refused UK settlement visa

[psychopomp1]

Hi

In January 2004 I (British National) got married in Pakistan to my partner a Pakistan national. She got her UK settlement visa 6 months later and came to UK in Aug 2004. Unfortunately our marriage broke down soon after, we both agreed to a divorce and my ex-wife left the UK. We did NOT register our marriage in the UK, so the divorce took place in Pakistan a few months later and a divorce certificate was issued. There is no record of any marriage or divorce between me and my ex in the UK. Now i got married again in Pakistan in November 2008 and submitted settlement papers to the British High Commission in Islamabad and today my wife received the refusal letter which said that UK law does NOT recognize my previous divorce, even though the divorce certificate was submitted with the application. So the question is, should i now apply for a divorce document in UK (decree absolute?) and re-apply for the settlement visa or is it worth appealing?

This is the reply my other half got from the British High Commission today:

"I am satisfied that you meet the requirements of paragraph 281 of the Immigration Rules, except for the following:

Your sponsor has been previously married to <ex-wife>. You have, however, been unable to present documentary evidence to satisfactorily establish that your sponsor has undergone a divorce that is recognised under United Kingdom law and that the previous marriage has been dissolved. I note that the talaq you have provided appears to have been pronounced in the UK then sent to Pakistan to be registered with the relevant Union Council. As per the guidance on overseas divorce in Chapter 13 of the Entry Clearance Guidance this divorce is therefore not recognised under UK law. I am therefore not satisfied that the marriage you have contracted is valid.

I therefore refuse your application"
Thanks

[vinny]

As per the guidance on overseas divorce in Chapter 13 of the Entry Clearance Guidance this divorce is therefore not recognised under UK law. I am therefore not satisfied that the marriage you have contracted is valid.

See also Chapter 13 Annex 1 Overseas divorces.

[psychopomp1]

Thanks for that Vinny.

After speaking to a few immigration solicitors over the phone, they all came to the conclusion that I need to see a family law solicitor in England and get a decree absolute issued so that UK law recognises my divorce. Obviously this will take time, so in the meantime could i appeal the initial decision (I have 28 days) and say to AIT that i am in the process of applying for a decree absolute so that they keep my application on hold until i submit the decree? Otherwise i will lose the £600 settlement visa fee if i have to make a fresh application

Thanks

[thsths]

After speaking to a few immigration solicitors over the phone, they all came to the conclusion that I need to see a family law solicitor in England and get a decree absolute issued so that UK law recognises my divorce.

Yes, it would seem so. Another question is whether it would be an obstacle for your visa if you were married twice. I thought that you could always bring one spouse only to the UK - since your Ex left, that should not be an obstacle now. But maybe I am making it more complicated than necessary.

[del_piero_3]

Unfortunately our marriage broke down soon after, we both agreed to a divorce and my ex-wife left the UK. We did NOT register our marriage in the UK, so the divorce took place in Pakistan a few months later and a divorce certificate was issued.

There are few members on this forum along with myself who are in the same position as yourself.

Were you present in Pakistan when you initiated the divorce, was this through union council? where are you from Pakistan? because union council is not recognised in Azad Kashmir.

I wouldnt worry about the £600 fees because it will cost you double in the long run if you appeal, oh yeh not to forget it will take over a year to complete, whereas fresh application turn around is about 7 weeks.

Send me private message with your email/msn address, and I'll forward some dcuments that might be useful to your cause.

[Frontier Mole]

AIT would not take anything other than the actual decree absolute as evidence; they are not in the business of making decisions based on promises.

In any event they can only take evidence that would have been available on the day of the decision, so even with a decree absolute available on the day of the hearing it would still be dismissed.

Accept that this application is dead, get the correct paperwork together and make a fresh application. This is the best and quickest way forward.

[mrlookforward]

AIT would not take anything other than the actual decree absolute as evidence; they are not in the business of making decisions based on promises.

In any event they can only take evidence that would have been available on the day of the decision, so even with a decree absolute available on the day of the hearing it would still be dismissed.

Accept that this application is dead, get the correct paperwork together and make a fresh application. This is the best and quickest way forward.

HI, our local pakistani barber has the exact problem. his wifes visa was refused cos they said he wasnt divorced from his prev wife. his appeal was not allowed due to the same reason. his marriage to his second wife was also not recognized cos he married her after becoming a UK citizen and uk citizens are not allowed to have a polygamous marriage anywhere. so he had to get a civil divorce from Uk courts, then he went back to pakistan and then marry again to his second wife so that the marriage is regarded valid in uk law. she was later issued with spouse visa.

[Frontier Mole]

It is not an uncommon problem. There have been a few postings on this forum that mirror the OP and the other case above.

[PaperPusher]

Hello

There was a recent big case about just this issue. I am sorry but because it was a family law case I cannot find it now. It was about a couple using Pakistan's divorce laws to end the marriage, even though at least one of them lived in the UK permanently. The end result was the Pakistan divorce was valid. I think you need to a family law specialist, and one that specialises in international family law issues.

The turning point is if it is a valid divorce.

Regards

[mrlookforward]

Hello

There was a recent big case about just this issue. I am sorry but because it was a family law case I cannot find it now. It was about a couple using Pakistan's divorce laws to end the marriage, even though at least one of them lived in the UK permanently. The end result was the Pakistan divorce was valid. I think you need to a family law specialist, and one that specialises in international family law issues.

The turning point is if it is a valid divorce.

Regards

Cud it also not depend on how the divorce proceedings were done? Someone just writing on a peice of paper in front of two witnesses that "I divorce my wife" dont have much chance of that divorce being recognized in uk. But if someone goes through courts in pakistan and gets a divorce and according to the law of pakistan that court has jurisdiction over that divorce then I dont see why that divorce wont be accepted in uk. But all such cases I have seen is are like a man posts a statement of divorce to his wife, and sends it to her by post, that wud never be regarded as a divorce in Uk.

[Frontier Mole]

Hello

There was a recent big case about just this issue. I am sorry but because it was a family law case I cannot find it now. It was about a couple using Pakistan's divorce laws to end the marriage, even though at least one of them lived in the UK permanently. The end result was the Pakistan divorce was valid. I think you need to a family law specialist, and one that specialises in international family law issues.

The turning point is if it is a valid divorce.

Regards

Had a good look for the case - nothing on usual sites and no mention in the press. POU'ers don't know of it either. Any idea when the case was determined?

[del_piero_3]

Hello

There was a recent big case about just this issue. I am sorry but because it was a family law case I cannot find it now. It was about a couple using Pakistan's divorce laws to end the marriage, even though at least one of them lived in the UK permanently. The end result was the Pakistan divorce was valid. I think you need to a family law specialist, and one that specialises in international family law issues.

The turning point is if it is a valid divorce.

Regards

Had a good look for the case - nothing on usual sites and no mention in the press. POU'ers don't know of it either. Any idea when the case was determined?

There are many cases regarding Pakistani divorce being recognised in the UK, just to name few:

Quazi v Quazi [1980] AC 744; Chaudhary v Chaudhary [1984] 3 All ER 1017; El Fadl v El Fadl [2000] 1 FCR 685; and Rab (12345); and Mirza Waheed Baig v ECO, Islamabad [2002] UKIAT 04229

I’ve found a link to Mirza Waheed Baig v ECO, Islamabad [2002] UKIAT 04229:

http://www.bailii.org/cgi-bin/markup.cg ... od=boolean

I hope this helps....

[mrlookforward]

Hello

There was a recent big case about just this issue. I am sorry but because it was a family law case I cannot find it now. It was about a couple using Pakistan's divorce laws to end the marriage, even though at least one of them lived in the UK permanently. The end result was the Pakistan divorce was valid. I think you need to a family law specialist, and one that specialises in international family law issues.

The turning point is if it is a valid divorce.

Regards

Had a good look for the case - nothing on usual sites and no mention in the press. POU'ers don't know of it either. Any idea when the case was determined?

There are many cases regarding Pakistani divorce being recognised in the UK, just to name few:

Quazi v Quazi [1980] AC 744; Chaudhary v Chaudhary [1984] 3 All ER 1017; El Fadl v El Fadl [2000] 1 FCR 685; and Rab (12345); and Mirza Waheed Baig v ECO, Islamabad [2002] UKIAT 04229

I’ve found a link to Mirza Waheed Baig v ECO, Islamabad [2002] UKIAT 04229:

_http://www.bailii.org/cgi-bin/markup.cgi?doc=/ ... od=boolean

I hope this helps....

The link seems not to work, just 404 error. Can you please check and post it again.

[del_piero_3]

The link seems not to work, just 404 error. Can you please check and post it again.

Sorry, I've edited my post now.

[Frontier Mole]

Thanks for the cases and link, appreciated.

I was aware of the link case as it supports the UKBA position. The appeal was dismissed at all stages.

If there is a case out there that turns this over it will be a major point in law.

I do not doubt the recognition of PAK divorce; there are many cases that up hold it in terms of family law and administrative law.
It is the circumstances and domiciled / settled status of the respective parties that is important for the purposes of UK immigration law.

Still interested to find the case PaperPusher refers to.

[mrlookforward]

The link seems not to work, just 404 error. Can you please check and post it again.

Sorry, I've edited my post now.

Your link still doesnt seem to work, but I managed to find the case on AIT website. You mentioned many pakistani divorced being recognized in uk, but at least the case you have mentioned regarding Mirza Waheed Ahmed, the AIT has not recognized it a valid divorce in UK law. I will quote the important paragraph of the determination.

" The talaq al-hasan by which the sponsor’s husband purported to divorce her in 1993 is not recognised in the United Kingdom. In English law, the sponsor is still married to Arshad Mahmood. Her purported marriage to the Appellant in the mosque in Manchester on 8th August 1999 is void for lack of the formalities necessary for a marriage in England. Her purported marriage to him at the Manchester Record Office on 25th August 1999 is void for bigamy (or, precisely, polyandry). The Appellant is not the sponsor’s husband and has no claim under the Immigration Rules to be admitted as such.
For the foregoing reasons, the Appellant’s appeal is dismissed."

So can you please point out how this determination be of any help when the appeal has been dismissed.

[mrlookforward]

The link seems not to work, just 404 error. Can you please check and post it again.

Sorry, I've edited my post now.

Your link still doesnt seem to work, but I managed to find the case on AIT website. You mentioned many pakistani divorced being recognized in uk, but at least the case you have mentioned regarding Mirza Waheed Ahmed, the AIT has not recognized it a valid divorce in UK law. I will quote the important paragraph of the determination.

" The talaq al-hasan by which the sponsor’s husband purported to divorce her in 1993 is not recognised in the United Kingdom. In English law, the sponsor is still married to Arshad Mahmood. Her purported marriage to the Appellant in the mosque in Manchester on 8th August 1999 is void for lack of the formalities necessary for a marriage in England. Her purported marriage to him at the Manchester Record Office on 25th August 1999 is void for bigamy (or, precisely, polyandry). The Appellant is not the sponsor’s husband and has no claim under the Immigration Rules to be admitted as such.
For the foregoing reasons, the Appellant’s appeal is dismissed."

So can you please point out how this determination be of any help when the appeal has been dismissed.

Just checked out your link again, and now its working.

[del_piero_3]

The link seems not to work, just 404 error. Can you please check and post it again.

Sorry, I've edited my post now.

Your link still doesnt seem to work, but I managed to find the case on AIT website. You mentioned many pakistani divorced being recognized in uk, but at least the case you have mentioned regarding Mirza Waheed Ahmed, the AIT has not recognized it a valid divorce in UK law. I will quote the important paragraph of the determination.

" The talaq al-hasan by which the sponsor’s husband purported to divorce her in 1993 is not recognised in the United Kingdom. In English law, the sponsor is still married to Arshad Mahmood. Her purported marriage to the Appellant in the mosque in Manchester on 8th August 1999 is void for lack of the formalities necessary for a marriage in England. Her purported marriage to him at the Manchester Record Office on 25th August 1999 is void for bigamy (or, precisely, polyandry). The Appellant is not the sponsor’s husband and has no claim under the Immigration Rules to be admitted as such.
For the foregoing reasons, the Appellant’s appeal is dismissed."

So can you please point out how this determination be of any help when the appeal has been dismissed.

In the Mirza Waheed Ahmed case document, it will reference other cases which are similiar and were accepted whereas Mirza Waheed Ahmed was rejected - rightly so due to not meeting the criteria set in MFLO 1961 (pakistani Law) and Family Law Act 1986 (UK Law). You will need to read the full document and not just the final summary....

[del_piero_3]

I do not doubt the recognition of PAK divorce; there are many cases that up hold it in terms of family law and administrative law.

It is the circumstances and domiciled / settled status of the respective parties that is important for the purposes of UK immigration law.

Every solicitor I have seen has said the same thing regarding resident status - it has be domiciled/habitually.

Still interested to find the case PaperPusher refers to.

I certainly would like to see the case file too. PaperPusher cant you remember any details about it that might help finding the case?

[del_piero_3]

I do not doubt the recognition of PAK divorce; there are many cases that up hold it in terms of family law and administrative law.

It is the circumstances and domiciled / settled status of the respective parties that is important for the purposes of UK immigration law.

Frontier Mole I have a question for you....sorry only picking on you because you do know your stuff. I have taken the following from this link: http://www.ukvisas.gov.uk/en/ecg/chapte ... r13annex1/

The Family Law Act 1986

Recognition of overseas divorces on or after 4 April 1988
Under the Family Law Act 1986 an overseas divorce obtained by means of proceedings is only recognised in the UK if:

• it is valid in the country in which it was obtained;

• at the relevant date, either party was either habitually resident or domiciled in that country or was a national of that country.

Only a talaq under the MFLO is considered to have been obtained by proceedings as defined under the UK Acts.

If a full talaq divorce takes place in Bangladesh or Pakistan it will be recognised in the UK if the procedures laid down under the Muslim Family Laws Ordinance 1961 were complied with, and:

the husband or the wife is a Bangladeshi or Pakistani citizen;
or
he or she is habitually resident in Bangladesh or Pakistan;
or
he or she is domiciled in Bangladesh or Pakistan.

From the above criteria, assuming that full divorce/talaq was obtained from Pakistan via MFLO 1961/union council. And in the Family Law Act 1986 - overseas divorce obtained by means of proceedings, the criteria has a OR statement between domiciled, habitually resident and Pakistani Citizen, meaning that you only has to meet one of those conditions.

If both partners at the time of the divorce were Pakistani citizen (one of them had dual nationality) but were in the UK. However the divorce was initiated by one of them whilst in Pakistan then would this divorce be valid? According to the above law it should because the citizenship criteria is being met along with law of the country where the divorce was obtained (Pakistan – MFLO 1961).

I know if the criteria in the Family Law Act 1986 only had domiciled or habitually then of course the case will get rejected and rightly so because both parties are in the UK. But the citizen criteria changes this....

I hope all that makes sense.....

[psychopomp1]

yippeeeee! my UK divorce (scottish simplified) came through a few days ago and i now have the final divorce certificate. I understand UK law refuses to recognize my marriage in pakistan last year because technically speaking i was still married to my first wife...so i will have to get married again to my current "wife" right? If so, could i bring my wife over to UK on fiancee visa and get married here? Some questions about applying for fiancee visa:

1) The fee for fiancee visa is approx £600...same as settlement visa. After marriage in UK, we would have to apply for settlement visa again so does this mean that we would have to fork out another £600? I was under the impression that the fiancee visa would cost considerably less since you need to apply for settlement visa in UK again.

2) If i apply for the fiancee visa one of the supporting docs we need to submit is "evidence to show that arrangements have been made for either notification of marriage or civil partnership or for the marriage or civil partnership to take place during the visit". Surely this doesn't make sense to make wedding arrangements BEFORE the visa is granted?

3) Also for other supporting docs, will they accept our previous "wedding" photos which shows that we have met?

Thanks

[vinny]

1. Unfortunately yes, immediately after marriage, apply for FLR(M) (285) and subsequently SET(M) (288).

2. See also 13.4 - Fiancé(e)s/proposed civil partners and how they qualify.

[psychopomp1]

Hi

My fiancee has now been granted a 6 month visa so after she arrives in UK before getting married do we have to apply for a certificate of approval for marriage or civil partnership (http://www.ukba.homeoffice.gov.uk/while ... documents/) BEFORE we get married? If so how long does it take to get the COA through the post after the application is sent? Can we give notice at our registar's office in Scotland before applying for the COA?

Cheers

[ElenaW]

Hi

My fiancee has now been granted a 6 month visa so after she arrives in UK before getting married do we have to apply for a certificate of approval for marriage or civil partnership (http://www.ukba.homeoffice.gov.uk/while ... documents/) BEFORE we get married? If so how long does it take to get the COA through the post after the application is sent? Can we give notice at our registar's office in Scotland before applying for the COA?

Cheers

No you don't need a certificate of approval if your fiancee has been issued a fiancee visa.

[psychopomp1]

Hi

My fiancee has now been granted a 6 month visa so after she arrives in UK before getting married do we have to apply for a certificate of approval for marriage or civil partnership (http://www.ukba.homeoffice.gov.uk/while ... documents/) BEFORE we get married? If so how long does it take to get the COA through the post after the application is sent? Can we give notice at our registar's office in Scotland before applying for the COA?

Cheers

No you don't need a certificate of approval if your fiancee has been issued a fiancee visa.

Thanks for clarifying

One other quick question: after our marriage if we apply for the FLR (M) in person at UKBA's Glasgow office (ie Premium service) can i be present with my fiancee while they interview her? Reason being that my fiancee's english is far from perfect and she would probably be scared stiff if she had to attend the interview on her own. Nothing mentioned here:
http://www.bia.homeoffice.gov.uk/contac ... nontheday/

Thanks