Kind advise required about my husband's refusal

[Hopestar]

I wonder if anyone can help me please; my huband has been refused EC based on section 320(11).
we met in Jan 2010 and them married islamicly with the approval of my family, then we strarted seeking advise from various solicitors on how we could adjust his 4 yrs overstay.
We appiled to the UKBA which they issued COA (marriage approval) but my husband was arrested at the registry office before we get married and was removed within 5 days in Dec.2010.
I went to see him after he was removed and provided all the papers for a spouse visa which was rejected in 3 days based on the validity of the marriage( off course the religious marriage was not recognised), even though I have provided all they need: photos, bills together (we have been living together since May 2010) bank statments in my name, I am in a full time job for the last 7 years and I have my own business, house paper, housing report.
Again I have been advised to apply on a fiancee vias in order to sort this quickly and not to wait for the appeal. by the way my husband is Libyan and we were going through all these worries since Feb... I was in touch with my local MP which could not help; the Embassy was closed in Tripoli and all our documents held there... in April 2011 my husband managed to get his passport and flee the country to Tunisia where I have been told by the foreign office to go and submitt a fresh application; I went to Tunis and had to prepare another bundle of our document’s copies to orginals
After all these trouble my husband has been refused on the 320(11).. he has no offences apart from his overstay for 4 yrs.. not being involved in any kind of fraude/giving wrong information or trying to aggravate the system... I am not sure how the ECO has not given any attention to our situation. My husband now in Tunis waiting for the appeal.. I have to support him as he can’t get a job... all these extras adding loads of unnecessary stress and now the appeal has been lodged on the 23/Jun which we received a letter from the court that they will be in touch in Nov 2011!!!!!!
Do we stand a chance of the ECM to overturn the decision any soon? Do we have a chance of winning the appeal? How long can this take? Please help
[/b][/i]

[Kitty]

What does the refusal notice actually say is the reason for applying 320(11)? Overstay alone is not enough: what aggravating factors have been considered by the ECO?

[Obie]

This refusal seems unduly harsh, especially when the Guidance given under 320(11), states that it is not enough that the person was an immigration offender, there must have been aggreviating circumstance, which does not seem to be the case, from reading your post.

In any case, this is not a mandatory refusal, it is discretionary refusal, so you have the ability to demonstrate that the discretionary refusal should not have been exercised against your husband.

I wish you all the best.

[Hopestar]

The Decision
• When considering your application 1have considered the compassionate circumstances surrounding this case, but 1 must also bear in mind your previous immigration record. You arrived in the UK on a visit visa in March 2006 and overstayed your visa by over four years. You met your fiancé in early 2010, at which time you were illegally residing in the UK. 1 consider this as a serious and significant breach of the UK immigration rules and in order to uphold robust immigration laws it must be taken into account. After being arrested by UKBA officiais, you were removed from the UK in December 2010. 1am therefore satisfied that you have previously contrived in a significant way to frustrate the intentions of the UK immigration rules. 1 am also satisfied that there were aggravating circumstances, as you were arrested and removed at public expense. 320 (11)
1 have therefore refused your application because 1 am not satisfied, on the balance of probabilities, that you meet ail of the requirements of the relevant Paragraph of the United Kingdom Immigration Rules.

[batleykhan]

The Decision
• When considering your application 1have considered the compassionate circumstances surrounding this case, but 1 must also bear in mind your previous immigration record. You arrived in the UK on a visit visa in March 2006 and overstayed your visa by over four years. You met your fiancé in early 2010, at which time you were illegally residing in the UK. 1 consider this as a serious and significant breach of the UK immigration rules and in order to uphold robust immigration laws it must be taken into account. After being arrested by UKBA officiais, you were removed from the UK in December 2010. 1am therefore satisfied that you have previously contrived in a significant way to frustrate the intentions of the UK immigration rules. 1 am also satisfied that there were aggravating circumstances, as you were arrested and removed at public expense. 320 (11)
1 have therefore refused your application because 1 am not satisfied, on the balance of probabilities, that you meet ail of the requirements of the relevant Paragraph of the United Kingdom Immigration Rules.

I would say these are significant incidents to warrant refusal and make OP's hubby's chances of succeeding very slim

[Obie]

That decision seems wrong on the face of it. Yes he was removed, and it was at public expense, however, that cannot be a basis for refusing under 320(11). They cannot use that as a basis for refusing someone under 320(11) when 320(7C) prevent them from using that as a refusal under 320(7B).

RFL7.1 When can I refuse under 320 (11)?

This is a discretionary refusal where an applicant has:

been an immigration offender or in breach of UK immigration or other law; and / or
received services or support to which they were not entitled;

In my view that is not an aggravating circumstance. it will only fall under been an immigration offender or in breach of UK immigration law.
He did not fail to abide with temporary release, neither did he enter the UK ilegally.

On the list of aggravating circumstances, that does not fall into it at all.

Also see PS (paragraph 320(11 ) discretion: care needed) India [2010] UKUT 440 (IAC)

[Obie]

I would say these are significant incidents to warrant refusal and make OP's hubby's chances of succeeding very slim

I really hate to say this, but i don't share your view in these regards.

I accept that the OP's husband was in breach of immigration law, and he was removed, but that is certainly not an aggravating factor, it is simply the consequence of being in breach of immigration law. If it is the case that being removed at public expense is an aggravating factor, then all undocumented immigrant who subsequently went to regularise their position after marriage will be precluded under 320(11).

An argument could be constructed that all these people who are in UK illegally could have been in the same position as OP's husband, being removed at public expenses/not, and the chances of them not being in his position, is simply a matter of whether they were caught or not, a bit of " Luck of the draw sought of thing". This will be wrong in my view, and it will act as a deterrance for people to go overseas and regularise their status in the UK, as they will be scarred that they will forcibly removed if the come out of the shadows, and they might be removed and precluded from coming.

[sweetmissy]

Hmmmmmm

Right... I was watching UK Border Force at the weekend, and a situation exactly like this happened!!

It was a Jamaican national, in the country for 3 years (overstayer) him and his wife applied for CoA, it was granted, and on their wedding day he was arrested. Then deported.

It was noted that the reason the CoA WAS granted, was because he was marrying a British Citizen, and it is our right to marry who we chose.

The immigratuion team then went onto explain that, even though you are issued with a CoA, you are also issued (they showed this) an letter outlining the fact that the overstayer should think about regulating their status, and if they chose to go ahead with the marriage, then the UKBA can come and arrest. This is what they did.

The gentleman was removed from the UK at the country's expense.

The immigration team, outlined that this WAS an 'aggravating circumstance' due to the fact, he had not shown to them he had done anything to regulise his status within the UK up until this point. And on recieving a letter with the CoA, still went against what was asked of him. That was classed as frustrating the immigration rules.

I don't know whether or not this helped clarify, but this situation was identical. You will also find many other people who are refused under the same , but originally being an overstayer and then applying for CoA.

Batleykhan what do you think?


Hope it all made sense

[Kitty]

Although mere removal is not apparently an aggravating factor, the list of aggravating factors in the Modernised Guidance does include: "attempting to prevent removal from the UK, arrest or detention by UK Border Agency or police".

If your husband was arrested, then his situation may fall under the circumstances in which refusal may be considered under 320(11). It's not clear whether the guidance is meant to be interpreted as referring to "arrest" per se, or "attempting to prevent... arrest".

The Entry Clearance Guidance, in addressing 320(11), includes "active attempt to frustrate arrest or detention by UK Border Agency or police" in its list of aggravating factors.

Did you raise Article 8 rights to family and private life in his appeal?

This is not one that is going to be overturned by the ECM, I'm afraid. You will have to go through to a full appeal hearing, and it would be best if you could instruct a qualified legal adviser.

Note that the case that Obie linked to resulted only in the decision being remitted to the UKBA: the finding was that the ECO had not done the balancing exercise required by 320(11) properly. I wonder whether the visa was allowed after that.

[Greenie]

Hmmmmmm

Right... I was watching UK Border Force at the weekend, and a situation exactly like this happened!!

It was a Jamaican national, in the country for 3 years (overstayer) him and his wife applied for CoA, it was granted, and on their wedding day he was arrested. Then deported.

It was noted that the reason the CoA WAS granted, was because he was marrying a British Citizen, and it is our right to marry who we chose.

The immigratuion team then went onto explain that, even though you are issued with a CoA, you are also issued (they showed this) an letter outlining the fact that the overstayer should think about regulating their status, and if they chose to go ahead with the marriage, then the UKBA can come and arrest. This is what they did.

The gentleman was removed from the UK at the country's expense.

The immigration team, outlined that this WAS an 'aggravating circumstance' due to the fact, he had not shown to them he had done anything to regulise his status within the UK up until this point. And on recieving a letter with the CoA, still went against what was asked of him. That was classed as frustrating the immigration rules.

I don't know whether or not this helped clarify, but this situation was identical. You will also find many other people who are refused under the same , but originally being an overstayer and then applying for CoA.

Batleykhan what do you think?


Hope it all made sense

Please do not refer to UK Border Force as evidence/reference to immigration law in the UK, as it is not that in the slightest. It is a one sided television programme used as a propoganda machine for UKBA and to scare people. Obie and Kitty have referred to the relevent law.

[sweetmissy]

Hmmmmmm

Right... I was watching UK Border Force at the weekend, and a situation exactly like this happened!!

It was a Jamaican national, in the country for 3 years (overstayer) him and his wife applied for CoA, it was granted, and on their wedding day he was arrested. Then deported.

It was noted that the reason the CoA WAS granted, was because he was marrying a British Citizen, and it is our right to marry who we chose.

The immigratuion team then went onto explain that, even though you are issued with a CoA, you are also issued (they showed this) an letter outlining the fact that the overstayer should think about regulating their status, and if they chose to go ahead with the marriage, then the UKBA can come and arrest. This is what they did.

The gentleman was removed from the UK at the country's expense.

The immigration team, outlined that this WAS an 'aggravating circumstance' due to the fact, he had not shown to them he had done anything to regulise his status within the UK up until this point. And on recieving a letter with the CoA, still went against what was asked of him. That was classed as frustrating the immigration rules.

I don't know whether or not this helped clarify, but this situation was identical. You will also find many other people who are refused under the same , but originally being an overstayer and then applying for CoA.

Batleykhan what do you think?


Hope it all made sense

Please do not refer to UK Border Force as evidence/reference to immigration law in the UK, as it is not that in the slightest. It is a one sided television programme used as a propoganda machine for UKBA and to scare people. Obie and Kitty have referred to the relevent law.

Sorry to have offended you, I was simply offering what I had learnt...

Apologies again

[Greenie]

Hmmmmmm

Right... I was watching UK Border Force at the weekend, and a situation exactly like this happened!!

It was a Jamaican national, in the country for 3 years (overstayer) him and his wife applied for CoA, it was granted, and on their wedding day he was arrested. Then deported.

It was noted that the reason the CoA WAS granted, was because he was marrying a British Citizen, and it is our right to marry who we chose.

The immigratuion team then went onto explain that, even though you are issued with a CoA, you are also issued (they showed this) an letter outlining the fact that the overstayer should think about regulating their status, and if they chose to go ahead with the marriage, then the UKBA can come and arrest. This is what they did.

The gentleman was removed from the UK at the country's expense.

The immigration team, outlined that this WAS an 'aggravating circumstance' due to the fact, he had not shown to them he had done anything to regulise his status within the UK up until this point. And on recieving a letter with the CoA, still went against what was asked of him. That was classed as frustrating the immigration rules.

I don't know whether or not this helped clarify, but this situation was identical. You will also find many other people who are refused under the same , but originally being an overstayer and then applying for CoA.

Batleykhan what do you think?


Hope it all made sense

Please do not refer to UK Border Force as evidence/reference to immigration law in the UK, as it is not that in the slightest. It is a one sided television programme used as a propoganda machine for UKBA and to scare people. Obie and Kitty have referred to the relevent law.

Sorry to have offended you, I was simply offering what I had learnt...

Apologies again

I'm not offended! Just don't think UK Border Force should be used as a accurate reference point that's all!

[Obie]

Although mere removal is not apparently an aggravating factor, the list of aggravating factors in the Modernised Guidance does include: "attempting to prevent removal from the UK, arrest or detention by UK Border Agency or police".

If your husband was arrested, then his situation may fall under the circumstances in which refusal may be considered under 320(11). It's not clear whether the guidance is meant to be interpreted as referring to "arrest" per se, or "attempting to prevent... arrest".

The Entry Clearance Guidance, in addressing 320(11), includes "active attempt to frustrate arrest or detention by UK Border Agency or police" in its list of aggravating factors.

Did you raise Article 8 rights to family and private life in his appeal?

This is not one that is going to be overturned by the ECM, I'm afraid. You will have to go through to a full appeal hearing, and it would be best if you could instruct a qualified legal adviser.

Note that the case that Obie linked to resulted only in the decision being remitted to the UKBA: the finding was that the ECO had not done the balancing exercise required by 320(11) properly. I wonder whether the visa was allowed after that.

That is the point i was making. Removal is not an aggravating factor. People cannot be removed forcefully unless they are arrested. Forceful removal cannot amount to aggravating factor, at most, it is immigration offence, which cannot on its own justify a refusal under 320(11).

Unless those people resisted arrest, absconded, used violence against the arresting officer, returned back to the UK illegally, shortly after removal, or claimed public fund for which they were not entitled or restricted, a refusal under 320(11) cannot be justified.

There is a world of difference between 320(7b) and 320(11).

The law states mandatory refusal for people who were removed under at public expense, and forcibly in 320(7B), subject to 320(7C).

An entry clearance officer cannot use 320(11) as a convenience means of refusing an applicant. When 320(7C) states that people who committed these offenses are exempted from punishment or a ten years ban.

On the face of it, it seems the officer deliberately applied the wrong test.

The concession under 320(7C) will have no meaning at all, if people could find themselves being refused under 320(11)

[Hopestar]

Thanks a lot guys for all your kind replies... much appreciated and I just pray that my husband will be granted the visa when we win the appeal... we have learned our lesson... these hard coming days will only make us stronger... anyone has a smilar story and won the appeal before let us share your views please and how long the appeal will take?

[sweetmissy]

Good Luck Hopestar

I hope it all works out for you both x