Spousal Visa...

[ghostfacedninja]

My Canadian fiance came to visit me on a visitors visa at the beginning last year (march08). Her stay got longer and longer untill we decided that we wanted to get married and live together.
We applied for a certificate of approval for marriage, and were succesfull.
We got married but what with one thing and another not untill november.
We then set about the process of applying for her leave to remain. Again it took us a long time. Moving job and house made things difficult to organize.
They have rejected her leave to remain. Due to us not getting it all done within 6 months of arriving in the country.
Now my next logical step I thought was for her to apply for a spousal visa from Canada. But now I find that they changed the immigration rules in november, upping the age limit from 18 to 21. She is 19...
So basically they gave us permission to get married, and are now deporting her and not allowing her to return for 2 years...
She wont have a job. She wont have a home. If I want to be with my wife I also have to go to a different country with no job or home. We dont have much money, paying for all the hoops they've made us jump thru already has been bleeding us dry.
Kind of stuck as to what to do, any advice would be greatly appreciated.

[John]

They have rejected her leave to remain. Due to us not getting it all done within 6 months of arriving in the country.

Do they say that? Or have they rejected the application because she is only 19?

So basically they gave us permission to get married, and are now deporting her and not allowing her to return for 2 years...

Two separate issues. They have allowed the two of you to get married, because you have a Human Right to do so. However, as regards her living here, even though there is a right for the two of you to live together, UKBA would argue that such right can be exercised outside the UK.

I don't know whether it helps but I mention it, in case you have not thought of it, you might consider moving to another EEA country and exercising your EU Treaty Rights there, for example by being employed or self-employed. Your wife would have a right to join you in that country. Given your wife is Canadian, her linguistic skills might mean you move to France, or another French-speaking country. Or to Ireland?

The point is this. After it being clear that you have exercised your EU Treaty Rights in that country, in any economic way ... employed or self-employed ... your wife could then apply for a UK-issued EEA Family Permit ... to return to the UK with you. This is known as the Surinder Singh method, after the person who fought this issue at the ECJ ... the European Court of Justice.

The fact that she would be under 21 at the time of application could not be used as a reason not to issue the EEA Family Permit.

[Wanderer]

Also it's not possible to switch from visit visa to spouse visa in-country, perhaps the real reason she was denied.

[ghostfacedninja]

They have rejected her leave to remain. Due to us not getting it all done within 6 months of arriving in the country.

Do they say that? Or have they rejected the application because she is only 19?

Yes. And I quote "You made your application on 27th March 2009. However your leave to remain expired on 11th september 2008. You therefore did not have right to remain at the time of your application. There is no appeal against this decision."
We sought the CoA, got it and got married before they brought in the new legislation on being 21. On the 27th Nov 2008 I believe.

So basically they gave us permission to get married, and are now deporting her and not allowing her to return for 2 years...

Two separate issues. They have allowed the two of you to get married, because you have a Human Right to do so. However, as regards her living here, even though there is a right for the two of you to live together, UKBA would argue that such right can be exercised outside the UK.

I don't know whether it helps but I mention it, in case you have not thought of it, you might consider moving to another EEA country and exercising your EU Treaty Rights there, for example by being employed or self-employed. Your wife would have a right to join you in that country. Given your wife is Canadian, her linguistic skills might mean you move to France, or another French-speaking country. Or to Ireland?

The point is this. After it being clear that you have exercised your EU Treaty Rights in that country, in any economic way ... employed or self-employed ... your wife could then apply for a UK-issued EEA Family Permit ... to return to the UK with you. This is known as the Surinder Singh method, after the person who fought this issue at the ECJ ... the European Court of Justice.

The fact that she would be under 21 at the time of application could not be used as a reason not to issue the EEA Family Permit.

Well you just answered a couple of important questions I had thank you.
It will be possible for us to just go straight to another EEC country? They wont make her go to Canada first or anything?
She would be able to travel freely within EEC countries as my spouse? Work? The fact that she'd been expelled from one EEC country for exceeding a visitors visa wouldn't affect this?

What is a UK-issued EEA Family Permit? And how does it differ from a Spouse Visa? She would be a "dependent"?

As for the human rights.. I looked that up. And I guess making two people homeless and unemployed isn't considered "insurmountable obstacles."
There's also the fact for me to get a spouse visa to enter canada she also needs to be 21...

"Even though there is a right to respect for family life this, in principle, does not extend to a right to respect for the choice of marital or family home. Where there is an alternative country in which the spouses/family can reside and there are no ‘insurmountable obstacles’ to relocation and settlement there, or where a person subject to immigration control could return to the country of origin and obtain entry clearance as a family member in the ordinary way without risk or excessive delay, declining residence in the UK may not amount to an interference with the right to respect for family life."

Also it's not possible to switch from visit visa to spouse visa in-country, perhaps the real reason she was denied.

The whole system seems set up to completely eliminate genuine marriages...

[ghostfacedninja]

Will being deported from the UK for exceeding a visitors visa make a difference to obtaining any other type of visa to return?

[John]

"You made your application on 27th March 2009. However your leave to remain expired on 11th september 2008. You therefore did not have right to remain at the time of your application. There is no appeal against this decision."
We sought the CoA, got it and got married before they brought in the new legislation on being 21. On the 27th Nov 2008 I believe.

Ah right, and given the application was made before the under-21 rule was introduced, they did not quote that as a ground of appeal.

Of course the CoA is not a visa, and if her visa did expire on 11.09.08, as from 12.09.08 she was of course an overstayer.

Will being deported from the UK for exceeding a visitors visa make a difference to obtaining any other type of visa to return?

She is not being deported, well not yet, but she really does need to leave soon, in order avoid a possible knock on the door at 6.00.am one morning!

It will be possible for us to just go straight to another EEC country? They wont make her go to Canada first or anything?
She would be able to travel freely within EEC countries as my spouse? Work?

Four questions there :-

• Yes, given that she is Canadian, and therefore a non-visa national
• No
• Yes
• Yes, but it would be a good idea to apply for and get a Residence Card, in the country where you are exercising your EU Treaty Rights. That RC will confirm her ability to work.

What is a UK-issued EEA Family Permit? And how does it differ from a Spouse Visa? She would be a "dependent"?

It is the ability for her to exercise EU Treaty Rights in the UK. Given you are British, this is only possible using the Surinder Singh route.

Dependent? Well in a sense yes, because her right to exercise EU Treaty Rights depends upon you exercising your EU Treaty Rights.

An EEA Family Permit differs from a UK spouse visa insofar as the conditions for issue are different, particularly in your case given that there is no minimum age limit of 21 in the EU Regulations. Having said that, it needs to be appreciated that using the EU route means she will not get Permanent Residence Rights for 5 years, whereas if the UK spouse visa route was being used (which is not possible in your case, given she is under 21) Indefinite Leave to Remain would have been achieved after 2 years.

[ginoT]

Not too sure on this one, but it seems to me the EEA Family Permit route is going to be very complicated and is in effect trying to get around the system. If anything goes wrong trying to convince anyone of your actions is going to be complicated. I’d personally opt for playing it safe and fight it out here. Two points:

1 - there is a right of appeal, a human rights one. For them to reject the FLR(M) application when you are legally married and not offer you the right of appeal under human rights grounds is unlawful. I’m in the same boat and have confirmed with AIT that you can request an appeal (AIT1 form). My lawyer btw wrote the following to the HO on this point:

In the same decision you also refused our client an in country right of appeal despite considering her application under article 8 of the Human Right Act. This is a fundamental error of law in light of S92 (1) (2) & (4) Nationality, Immigration and Asylum Act 2002 which states:
“A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.â€

[John]

there is a right of appeal, a human rights one. For them to reject the FLR(M) application when you are legally married and not offer you the right of appeal under human rights grounds is unlawful.

Absolutely true that a human rights appeal can be made, but expect a big fight from UKBA, who will argue that such Human Rights can be exercised outside the UK, for example in another EEA country.

But sooner or later someone with very deep pockets will proceed with such an appeal, and the subsequent appeals that will undoubtedly follow.

it seems to me the EEA Family Permit route is going to be very complicated and is in effect trying to get around the system.

Of course it is trying to get around the system. That is very clear. But given the EU Directive does not mention any age limits, there is no reason why the Surinder Singh route would not work, as long as the British Citizen has been economically active ..... employed or self-employed ... in another EU country.

A case before AIT decided that even where the Surinder Singh route had been used quite deliberately, that was not a reason to refuse to issue the EEA Family Permit.

[ginoT]

Absolutely true that a human rights appeal can be made, but expect a big fight from UKBA

Quite possibly, but the appeal is free (correct me if I'm wrong on that!) and I think as long as the spouse is criminal free and not been up to any immigration mischief before I think the law's emphasis is on reasonableness + there are some other facts in this case that make it win-able. At the very least the appeal buys you some time.

A case before AIT decided that even where the Surinder Singh route had been used quite deliberately, that was not a reason to refuse to issue the EEA Family Permit.

ok, didn't know about that. Ok, give it a go, but moving country, dealing with paperwork even in Ireland etc etc... and reapplying is not gonna be cheap either. personally I don't know what you stand to lose by appealing