FLR(M) refused with no right of appeal

[Vig]

Hi all

I'm looking for some advice on our situation, which I will try and explain here as best as possible. My now husband came to the UK earlier this year on a fiancé visa, which expired at the end of August. We married in early August, and submitted the FLR(M) soon after. Unfortunately, my bank put a security block on my card that we had used for paying for the application, so the £475 fee did not go through. We realised this striaght away, so phoned up the IAS to see if we could provide alterntive payment methods. They said no, and that our only option was to wait for the automatically invalid application to be returned and then resubmit. I asked whether it would be a problem that by that time the orignal visa would have expired, and they said no, it would be fine.

The original application took over 2 months to come back. There was a letter there saying invalid payment results in automatic refusal, as expected, and that if my husband wished to remain we should resubmit. Obviously by this time it was well past the expiration of the original visa. We resubmitted the application immediately, making sure to include a letter detailing everything that had occurred to far, but yesterday a letter came through saying that the application was refused because it was made after expiration of leave to be in the country, and that there is no right of appeal.

We are both shocked and angry about this, because it goes against everything we were told previously by the IAS. The letter included a number to call to arrange my husband's departure from the UK, which he called, trying to get an explanation. The lady he spoke to was helpful, and said that she has requested the full case notes from the Home Office and will get back to us next week with a more detailed explanation, but said that the likely outcome would still be that he has to return to the USA and make another application.

Has anyone experienced a situation like this previously, or have any advice? It would be awful for him to have to leave for such a long period, and the expense is pretty huge.

Than you!

[batleykhan]

Contact your local MP and ask him to write to HO on your behalf explaining that it was a genuine mistake for the delay in applying.

You are able to support each other, your marriage is valid. Explain any personal difficulty that you will face in having to leave the country only to come back again.

Do it quickly as you will probally soon recieve a remova or deportation notice whereby they can forcibly remove you from teh Uk and you would not want that to happen.

You have no right of appeal in this case. Good representation by your MP is the only way to express your concern and worry.

Its going to be hard and painful, but if you are persistent the initial decison can be overturned and you could be allowed to stay here. I know this as I know of a people that have gone through exactly what you are going through

Good luck as you need every bit of it.

[phatpen]

I want to find out what the outcome of your application is.. It will be helpful to know...thanks

[chinagef]

Hi all

I'm looking for some advice on our situation, which I will try and explain here as best as possible. My now husband came to the UK earlier this year on a fiancé visa, which expired at the end of August. We married in early August, and submitted the FLR(M) soon after. Unfortunately, my bank put a security block on my card that we had used for paying for the application, so the £475 fee did not go through. We realised this striaght away, so phoned up the IAS to see if we could provide alterntive payment methods. They said no, and that our only option was to wait for the automatically invalid application to be returned and then resubmit. I asked whether it would be a problem that by that time the orignal visa would have expired, and they said no, it would be fine.

The original application took over 2 months to come back. There was a letter there saying invalid payment results in automatic refusal, as expected, and that if my husband wished to remain we should resubmit. Obviously by this time it was well past the expiration of the original visa. We resubmitted the application immediately, making sure to include a letter detailing everything that had occurred to far, but yesterday a letter came through saying that the application was refused because it was made after expiration of leave to be in the country, and that there is no right of appeal.

We are both shocked and angry about this, because it goes against everything we were told previously by the IAS. The letter included a number to call to arrange my husband's departure from the UK, which he called, trying to get an explanation. The lady he spoke to was helpful, and said that she has requested the full case notes from the Home Office and will get back to us next week with a more detailed explanation, but said that the likely outcome would still be that he has to return to the USA and make another application.

Has anyone experienced a situation like this previously, or have any advice? It would be awful for him to have to leave for such a long period, and the expense is pretty huge.

Than you!

Normally, if there was an issue with the application fee in the initial submission, you would have 28 days to resubmit (with the correct fee, forms and supporting documents) from the date when you received the application back as invalid.

Did they take the application fee the second time? If they did, I would resubmit the application exactly as you done with a cover letter (without paying a new fee), threatening JR and that they have not considered your article 8 rights. You should also include evidence that the initial application was submitted on time, and but for the bank issues which resulted in a technical fault in processing the initial application's payment.

Whilst resubmitting, I would also contact your local MP and inform him of the circumstance, telling him/her that you have an application pending already at the HO.

Alternatively, the other option would be for your husband to return to his home country and apply for entry clearance which will be a relatively straight-forward application.

[vinny]

See also Forrester, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2307 (Admin) (05 September 2008)

[Obie]

I believe the best way to go about this case, is to send the HO A PRE-Action protocol, drawing their attention to the judgement above, and asking them to reconsider your case in light of that judgement, as it resembles yours or you will proceed with a JR claim. If they refuse, proceed with the JR. They will not remove your spouse or issue a removal direction as this will trigger an article 8 claim, which you are likely to win. But this process will take time or not even happen at all, as the HO are sure of the outcome. I believe the first option will lead to a quicker response. Also get MP involved to increase the pressure as batellykhan suggested

[Vig]

Thanks all for the responses. I though I'd update on what is going on.

We contacted a some immigration specialist lawyers, who advised pretty much the same as the advise in the previous post. The case mirros very closely that of Forrester, and we have submitted to the HO a letter before claim, giving them 3 weeks to respond else we will file for a judicial review. We have been advised that our case is very strong for getting the decision overturned, but the process could take some time. It is also possible that he would be given discretionary leave to remain, instead of the usual 2 -years as a spouse, which would be a less than ideal outcome.

We also informed the local enforcement office (who have my husband's passport) of this, and they basically said that because my husband is low-risk, they will not remove him from the country for the time being.

So fingers crossed that we can get this sorted. I'll post an update once we get a response through.

[Vig]

Well we heard back from the HO yesterday, just before the deadline we had given them else we would file for judicial review. They granted him 3 years of discretionary leave, presumably because they still considered his initial application invalid but were wary of an article 8 breach.

The problem with discretionary leave is that he has to be here for 6 years before he can apply for indefinite, as opposed to 2 years as a spouse. So our solicitor is suggesting we could challenge them to grant him a regular visa instead. To be honest, I'm wondering whether its best to just let things as they are. As it is now he can work, use the NHS etc, so is it worth it to pay more legal costs...

Thanks again for the responses