application to extend spouse visa refused

We need some good sound advice please. Where to start .....We applied for an extension to my Thai wifes visa and was refused as the Home Office moved there goalposts regarding accepting BULATS English language test . At the time my wife took the test 06/06/2014 BULATS was being accepted. HO website stated BULATS test results would be accepted until 30/06/2014. So we put together the application and we had plenty of time as my wifes visa did not expire until 28/08/2014 .
We posted the application 22/08/2014. A couple of days later we heard from our visa advisor in bkk who dropped the bombshell that the Home Office were no longer accepting BULATS results after 01/08/2014. We were told to sit and wait as there was a lot of confusion surrounding the BULATS English language testing. Eventually we received the devastating news that our application had been refused, mainly based on the BULATS no longer being accepted by the HO. The HO also stated they saw no reason why we both could not live in Thailand ! ( wishful thinking ) We were given the opportunity to appeal and that's what we have done our hearing is in February. We contacted our local MP, not much help really. I tried to get my wife to take an accepted HO English language test but as the HO are holding my wifes passport we could not get her on a course ( college requires original passport for id purpose ) The HO also kept our marriage certs and BULATS pass certs which we requested be returned without response.
We are both in full-time employment but not able to afford the expertise of an immigration lawyer.
Is there anybody out there that can help us please.

You've posted this in the Tier-1 General forum. What category of visa was your wife applying to extend?

The refusal may have been incorrect.

If she used it as part of a successful previous application, then it may still be acceptable, subject to 32D.

Refer them to 32D.

32 D seems to be a new rule that came in following the November 6 rule changes.

There is no indication that the OP application was made or decided after 6/11.

There is also no information that indicated that test result was relied upon in a previously successful application.

Am i missing something.

I accept the Tribunal will have to adjudicate on the case in accordance with the rules in place as at the date of the hearing.

This may mean that he will succeed, but i am unsure the test result was used in a previously successful application.

I'm assuming that it was used in a previous successful spouse visa application because it's an extension application.

He seem to be saying, if i understand him correctly, that BULATS was accepted at the time of his wife preparing for the test, but by the time of application, it was no longer accepted.

The wife might have been in the Cohorts of cases or category of people that entered the UK without the need for any English language test.

Thanks, Obie.

You are right about 32D. I had not realized that it was only recently introduced (211).

On re-reading his post, it does seem that she had only just recently taken the test too. So it's unlikely that it was used in a previous application.

I'm surprised that she didn't take an English Language test before, as it was introduced in 2010. Perhaps she wasn't extending, but switching from another category that didn't require it? His post was originally in the Tier 1 (General) forum.

The test was introduced on the 29 November 2010, there is a possibility, that you may find people who went through an appeal process, and possible did not receive Entry clearance until 2012.

There is a possibility that a person applied in November 29 th 2010, a decision was not made till later in 2011, and that application was refused went for an appeal, FTT then Upper Tribunal, then Court of Appeal.

It may not be the case for the OP. In any event, i am not sure he could have taken advantage of 32D.

The changes are ever so many.

I believe this link may be of assistance.

Yes.

English language requirement wrote:Secondly, if an applicant applying for limited leave to enter or remain under Part 8 or Appendix FM submits an English language test certificate or result in relation to a test which has ceased by the date of application to be an approved test or from an approved test provider (because the Home Office have removed either from Appendix O in the Immigration Rules) it will not be accepted as valid unless para 32D below applies and (our emphasis) subject to any transitional arrangements made in relation to the test or provider (Appendix , para 32C). It would appear that the ‘and’ in italics is a drafting error and should read ‘or’.

So, 32C may help if there are any transitional arrangements made in relation to the test or provider and the 'and' was a drafting error.

I agree that the 'and' should be 'or', otherwise, 32D makes any transitional arrangements unnecessary, since it was previously sucessful.

Moreover, if there were any transitional arrangements made in relation to the test or provider, then it would even be applicable before 6 November.

I agree. The UKVI are rushing to bring these rules to such an extent that they are making errors.

There were transition arrangement made, but due to oversight on the path of the OP, it was not noticed.

OP may succeed, but the fact remains that the original decision was correct.

A decision was made based on the documents he provided, which does not seem to be the one that was provided with his wife's previous application.

In those circumstance, i find it difficult to highlight basis on which to criticize the UKVI.

He may succeed on appeal if he can show the previous English Language test.

Yes, it's unfortunate that the transitional arrangements is of no help, since the leave to remain application was not made before 1 August 2014.

The 22 August 2014 date on BULATS' website was only applicable to visa (entry clearance) applications and not leave to remain applications.

He maybe able to rely on a new test or the one used in securing Entry clearance at her appeal.

I am sure section 85 (4) , may not prevent him from doing so.

I agree (11).

Her English language abilities shouldn't suddenly diminish within such a short period of time, unless she got hit in the head or something.

Edit: Please ignore below.
Unfortunately, it seems that she cannot rely on a new test at her appeal.
Edit: Please ignore above.

She may succeed, if she has an acceptable test from a previous application.

However, if she took her current test when it was still acceptable, then was it perhaps unreasonable that the transitional arrangements related to the application date rather than the date of the test?

Also, why was there a difference in the acceptable dates between entry clearance and leave to remain applications?

All of this seems a bit arbitrary and illogical.

Well the case you cited seems to be an Entry Clearance case, and not a Leave to remain Appeal which is dealt within country.

I believe section 85(4) allows new evidence to be adduced relating to matter that arose after the decision. The situation for Entry Clearance appeal is different and seem to be governed by 85(5).

Before proceeding, i know the 2014 immigration act, has done amendment to 85(4) (Minor amendment) and 85(5) ( Major amendment) where permission will need to be sought from the Secretary of State for a judge to address new matter.

It is a bit unclear from the commencement order, when that changes will take effect.

Obie wrote:Well the case you cited seems to be an Entry Clearance case, and not a Leave to remain Appeal which is dealt within country.

Oops! You are right.

Well im shocked by the huge numbers of response to our situation . If it helps to clarify any of your queries I am more than happy to attach refusal notice and any other documents you may be interested in looking at !
Ref previous language testing we have always used BULATS (why you may ask , simple answer is that our visa advisor in BKK Thailand always made the bookings for my wife and has helped us from our very first visa application. Ref answer to a question we are First tier . Whatever that means I am so sorry im not smart enough to understand what many of you have posted about I just hope there is some hope for both of us ! We have definitely been caught in the middle of the transition . I think it would have been far more fairer if the HO had given us the opportunity to sit an HO accepted English language test. My wife has passed all previous English language tests taken before.
Thank you all for taking time to respond please don't give up on us and I have decided to attach the HO refusal and a drafted letter that we intend to send to the hearing .
I do desperately need help in forming the drafted letter to correspond with the paragraphs of refusal ! The appeal has asked us to answer the HO paragraphs but this is all beyond me and im so sorry about my lack of education. If you require any further paperwork please post on this site and I will attach whatever I can . We have until 04 December , that's when all documentation must arrive to Tribunal . Tried to attach refusal but the file is too big !!!!!!!!!!!!!!!!! and the drafted letter is not allowed ! any ideas ? I could try pasting I guess !

Mrs PB letter of appeal
Appeal Refusal to vary leave to enter or remain and decision to remove
Home Office reference B1950771
REF CORRESPONDENCE 339910070627

PB sought further leave to remain in the United Kingdom as the spouse of a British Citizen GB. Her application was refused mainly on the basis that she did not hold a valid English language test result with an accepted test body on the UKVI approved list.

As she had not been able to pass the KOLL test and achieve CEFR level B1 in English she was only able to apply for further leave as a spouse in order to then later qualify to seek indefinite leave. The application was submitted on 20 August 2014.

P had unfortunately returned briefly to her home in Buriram, Thailand for a short time in May 2014 as her mother was unwell and returned to UK on 18th July 2014. This absence unfortunately disrupted the preparation process of her application for further leave to remain. I would like to clarify that PB has been living with her husband Mr GB since she entered into the United Kingdon in 2012.

As her previous Cambridge BULATS language test result from Thailand in 2012, when she obtained her spouse settlement entry clearance, had technically expired after two years she took the opportunity whilst in Thailand to re-sit the Cambridge BULATS test to ensure she had a current valid result of at least CEFR A1 level.

This test was valid when she sat it as it was taken on 06 JUNE 2014 before Cambridge University discontinued the BULATS test system on 30 June 2014. It was understood that the test result would still be valid to present to the UKVI to seek an extension of leave to remain.

We were not aware of the full transitional arrangements for the tests that were being removed from the UKVI approved list and that the Cambridge BULATS test result could not be used in the United Kingdom from 1 August 2014 (though oddly could be for entry clearance applications up to 22 August 2014).

Pavinee met all the other requirements of the relevant immigration rules relating to evidence of relationship and means of support and accommodation as under the immigration rules in effect prior to 9 July 2012.

The decision was received in person by post on 25 September 2014. ( proof of receipt dates supplied )

Grounds of Appeal

Pavinee appeals on the basis that a valid test on the UKVI approved list was sat prior to the test being discontinued by Cambridge and that the overall CEFR A1 pass level had a validity of two years. The BULATS test was then removed from the UKVI list of approved tests only because it was discontinued and not for any adverse reasons. Why then should prior valid test results not therefore be honoured by the UKVI even after the test was no longer available? This does not seem reasonable.

Pavinee has also not been given the opportunity to just re-sit another currently valid test on the UKVI approved list in the United Kingdom to meet the only requirement of the rules that were failed. Pavinee has previously passed two approved tests with at least the required CEFR A1 level and her standard of English has for example not worsened after two years residence in the United Kingdom. There is no real doubt that she would not do so again.

Pavinee will therefore show that she meets the requirement by sitting another approved test in the United Kingdom.

With regards to consideration of the 'rights to family life' and Article 8 of the Human Rights Act Pavinee and I contest that it is not appropriate that she be removed from the United Kingdom in the circumstances and that it is not practical for me to reside with her in Thailand as even I could be allowed permission to remain there as her spouse there would be no right to take employment and have earnings to support myself and Pavinee due to very restrictive Thai immigration rules on employment of foreigners. For example it simply would not be possible for me to work legally in Thailand. Any income earned by Pavinee would not be sufficient to support us. I would also not have sufficient personal funds to stay there on any other basis so this would cause us very significient difficulties. We are planning a family and this would not be realistic if Pavinee was not living in the United Kingdom. We also have loan commitments with HSBC . Mr GB also has CSA commitments for his daughter.
We are both in full-time employment and we are no burden to the United Kingdom.
We only recently moved into our new two bedroomed house after two years of waiting patiently for the right property to become available .

The decision to remove P from the United Kingdom would therefore have a drastic direct affect on our relationship and family life. We argue that this has not been fully considered by the decision maker.

It looks like she applied too late to benefit from the transitional arrangements and too soon to benefit from the rule change (211).

She may need to do another test from a Trusted Provider for you to stand ant chance of success in this appeal.

Thanks once again for your replies . One of the first things I did was to try and get my wife to take an HO accepted course but the colleges want her passport ( no photo copies ) I guess for id purpose . So unless we can get my wifes passport returned from the HO she can not take an English language test ! We were given an opportunity to request any docs that had not been returned and we did this and heard noting back . HO also kept BULATS certs and our marriage certs that are in English. If these have been lost not sure what will happen if we have to start visa process from beginning as these marriage certs are required ! We also got our local MP involved who on our behalf requested our documents be returned . We have heard nothing from the HO ref this matter .

I managed to attach visa refusal letter from HO theres 4 pages so the 4th page had to be attached separately ....im no good at any techy stuff .
Any thoughts on where we should go with the appeal ?
What about Human Rights ?
Does anyone think if we were to get expert legal help would we realistically stand a chance in over ruling the HO decision ?

Does your wife not have a driving Licence.

only provisional licence ! why ?

Then she will be able to use that to do the English language test.

monners1963 wrote:Thanks once again for your replies . One of the first things I did was to try and get my wife to take an HO accepted course but the colleges want her passport ( no photo copies ) I guess for id purpose . So unless we can get my wifes passport returned from the HO she can not take an English language test ! We were given an opportunity to request any docs that had not been returned and we did this and heard noting back . HO also kept BULATS certs and our marriage certs that are in English. If these have been lost not sure what will happen if we have to start visa process from beginning as these marriage certs are required ! We also got our local MP involved who on our behalf requested our documents be returned . We have heard nothing from the HO ref this matter .

Look for a college in your area that adminsters their exams through EMDQ exam board. They will accept a photocopy of the passport if you have one along with a letter from your solicitor stating HO have retained her passport.

You will need to ask the staff at the college to ask EMDQ if they are willing to accept a photocopy in the event they refuse. Alternatively as Obie suggested use the provisional license, they should accept that.