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Complicated settlement visa refusal

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Complicated settlement visa refusal

Post by howardlee » Sat Sep 29, 2007 7:42 am

I met my wife 4 years ago through work and established a fairly good friendship. Our friendship blossomed into a relationship after a year or so and we started living together about 2 years ago. pretty soon after, we decided to get married and discovered tht I coudn;t get maried due ti my unclear immigration status

Below is a letter from my MP summarising my case to the FCO. I have taken the liberty to use that as an introduction of my case to you as I'm not very good at sunmaarising as you may find from this letter.

Letter from Charles Clarke to David Miliband
The Rt Hon David Miliband MP
Secretary of State for Foreign and Commonwealth Affairs
King Charles Street

13 August 2007

Our ref: CC/SMLEE 01015

Dear David

Mr Howard Lee Chuan How Date of Birth 03.01.1983
Home office Reference: L1046387
FCO Post Ref Number: Kuala Lumpur/75824

I have been involved in a protracted case involving Howard Lee whos reference details are shown above. Mr Lee first approached my office in September 2005 as he needed information about his formal status in the UK and his naturalisation application. The response from the Home Office dated October 2005 states that Howard’s application for citizenship was formally refused on 21st November 2002 although he had never received this information. Mr Lee has lived in the UK from the age of 12 and was not aware of any problems connected with his stay here.

Further, my office advised Mr Lee to obtain qualified advice from the Immigration Advisory Service (IAS) in Norwich and Mr Lee contacted them to discuss. The IAS advised that he needed to return to Malaysia to make a formal application to live in the UK and, after finally securing travel documents,* Mr Lee returned to Malaysia as stated in the enclosed.

I understand from my conversation this morning with Mr Lee that he has been refused a visa as he does not meet specific requirements in section 281 of the immigration rules.

I formally request that Mr Lee’s application be re-considered as it is apparent that he had a stable and secure life in the UK from the age of 12 years until very recently when he returned, as advised, to formalise his life in the UK. Mr Lee makes a valuable contribution to life in the UK. He is in good employment and is a tax and NI contributor. He has a very good position in a leading Norwich business.

I look forward to a speedy and positive response in this case.

Yours sincerely

Rt Hon Charles Clarke MP
Norwich South
Please reply to: Charles Clarke MP, Constituency Mail,
House of Commons, Westminster. London, SW1A 0AA
Constituency Telephone number: 01603 219902 Fax Number 01603 764475

Below is a letter I use to reiterate my case to people who may help.

I am a Malaysian national who has been living in the United Kingdom since I was 12, which means that I have been part of the British Community for over 12 years. I spent my first 6 years in the UK on a student visa in Great Yarmouth where I gained my Secondary and Further education. Whilst at school, I had already started my involvement with the Food Industry, by working part time in numerous restaurants, hotels, delicatessen and bakeries. Still on a student visa whilst at college, to assist in financing my accommodation, I started working permanently part time for a large casual dining restaurant chain. I carried on working for the said company, whilst still gaining different experience through temporary placements with restaurants and pubs around east anglia. It was shortly after I turned 18 that I applied for British Naturalisation (citizenship). I was advised by the relevant authorities that applications for naturalisation would normally take around 18 months to process. It was also round about then that I moved into Norwich due to a promotion at work. I continued working for the company travelling around East Anglia, specifically to newly opened restaurants to assist the management team in setting up systems for their new team and restaurant.
18 months went by but I still received no news from the authorities regarding my application for naturalisation. Furthermore, without my passport, I couldn’t travel out of the UK. I persisted in telephoning and by writing, but each attempt resulted in nothing more than telephone departmental transfers and useless excuses as to why they can’t give me any information I need to know. I gave up contacting them and could do no more than hope that my application would be processed sooner rather than later. Naturally, I continued life and carried on with work. I worked extremely hard and my conscientiousness paid dividends. I was building what appeared to be the foundations of a successful career. I was liked by colleagues and my managers trusted in my abilities and gave me responsibilities and tasks to match, which I time and time again handled with competencies that exceeded their expectations.
I moved around the restaurant circuit, just like everyone else who is serious about succeeding in the industry, gaining experience in operations of different volume and styles. In one of those restaurants, I met my wife. We worked together for a while but shortly afterwards we both moved on to other places and ultimately ended up in Bedfords. We continued to see each other and developed a serious relationship. After being together for 2 years, we decided to get married. I then realised that we couldn’t due to my immigration status which is still unclear. We decided to employ the help of our local MP, who was also, at the time, the Home Secretary, Rt. Honourable Mr Charles Clarke. He managed to discover within a few days that my application had been declined in 2002 and they have no record of receiving my passport. Which means that, not only did they not inform me of the rejection of my application, the Home Office had lost my passport (Though I have no way of proving I sent it as my 18-19 year old self was too careless and ignorant to use recorded post). The plan of action after learning this, as advised by the Immigration advisory service, was to return to Malaysia to get a new passport and sunsquently apply for a new visa to re-enter the UK. The attention then turned over to obtaining a Malaysian Passport. A vast amount of time and effort was wasted on waiting for replies from the London Malaysian High Commission to our letters of enquiry, including letters from Jeremy enquiring on my behalf, most of which were to no avail. We didn’t let this news affect our wedding plans and proceeded with our marriage through the church with a Bishop’s Licence. After a great deal of red tape cutting and unnecessary deliberation and correspondence, not to mention a stern letter from a Malaysia MP who’s also a member of the Malaysian Cabinet, I managed to get a temporary passport from the relevant Malaysian authorities after approximately a year With this single journey passport, I returned to Malaysia with the intention of applying for a settlement visa to return to the UK.
As instructed by the IAS, I returned to Malaysia, and within a short time, acquired a new passport. I submitted After the submission of all and every piece of information humanly acquirable, bar my lost passport (which they asked for but due to lack of a working time machine, unable to oblige), I was invited to an interview at the british High Commission in Kuala Lumpur. I attended the interview armed with a quiet confidence and a brief case filled with supporting documents, mainly in the form of anniversary cards and photographs, not to mention my correspondence with Charles Clark’s office, with regards to the search for my lost passport. After an interview (which I hasten to add, was extremely robotic in the way that it felt more like a tick box exercise) the entry clearance officer refused my application on the grounds that she can see no evidence of any entry clearance or right to remain to validate my initial entry in to the United Kingdom due to the absence of the lost passport. I asked the obvious question of how am I suppose to submit something that is lost and has been since Nov 2002, and lost not by me but by the Home Office, despite it’s denial. Like all visa refusals, I have 28 days to appeal, but she stated quite clearly that I needed something to show an entry clearance that’s favourable or else it’ll be pointless appealing.
Nonetheless, I submitted my appeal on the grounds of the fact that my inability to return to the UK will result in the inconvenience, loss and detriment to a lot of british people, which is contradictory to the purpose of immigration law, which is put in place to protect the people of the United Kingdom.
I’d like to apologise for the long-winded-ness of this email. I felt it absolutely necessary to explain all the crucial points so there are no misrepresentations of my predicament. I find it difficult to believe that the decline of my application is not in breach of some human rights legislation. They’re ruining the lives of two prospectively rather successful young people; a brilliant, already published (needless to mention, incredibly attractive) social historian about to finish her PhD; and a talented (even if I say so myself) chef and business person who have contributed time and energy to improve his local community.
To round it all up, this is a desperate cry for help out of a genuine fear of not being able to be with Fiona. She has another year to go before she finishes her PhD and is currently at a very crucial stage of her studies. The added pressure of not having me around as well as the financial constraints caused by the cease of my income is really not needed. The last thing I want is her PhD being jeopardised by this shambles of a situation.
Norfolk has been my home for the past 12 years and I sincerely wish that I’ll be allowed to return to my home. I genuinely believe that I deserve that. I’m as much a Norfolk boy as any other Norfolk born and bred 24 yr old and I’m proud of who I am and what I’ve done, and I’ve been assured that many other people shares that pride. I’ve contributed my little bit in making Norfolk a better place and if this is what I’m being repaid with, I genuinely think it is not right.


I have also included below th notice of refusal
Notice of refusal:

You have applied for settlement as the spouse or civil partner of a person present or settled in the UK. I have therefore assessed your application against section 281 of the immigration rules which say I must be satisfied that a person seeking leave to enter the UK as a spouse a person settled or of a person being admitted for settlement on the same occasion
(a) the applicant is married to or the civil partner of a person present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; or
(b)(i) the applicant is married to or the civil partner of a person who has a right of abode in the United Kingdom or indefinite leave to enter or remain in the United Kingdom and is on the same occasion seeking admission to the United Kingdom for the purposes of settlement and the parties were married or formed a civil partnership at least 4 years ago, since which time they have been living together outside the United Kingdom; and
(ii) the parties to the marriage have met; and
(iii) each of the parties intends to live permanently with the other as his or her spouse and the marriage is subsisting; and
(iv) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and
(v) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and
(vi) the applicant holds a valid United Kingdom entry clearance for entry in this capacity.
I have also assed your application on immigration rule 320
11) Failure to observe the time limit r conditions attached to any grant of leave to enter remain in the UK
Entry clearance officer’s decision,
I have refused you visa application of this occasion because I’m not satisfied on the balance of probabilities that you meet all of the requirements of section 281 and 320 of the immigration rules. This decision was made on the merits of this application, however, if you have a previous application and immigration history, this may have been considered.
The entry clearance Officer’s reasons and supporting evidence.
UK visas and the BHC Kuala Lumpur provides information to visa applicants about the types of document that they will be required to produce so that they can demonstrate to the visa officer that they meet the requirements of the immigration rule. We advise applicants that the failure to submit such documentation may result in refusal of the application. This decision has been made on the basis of the evidence you have supplied. The onus is on applicants to demonstrate that they meet the requirements of the relevant rules. You have declared that the information yo9u have provided is complete and true to the best of your knowledge. I have carefully considered your application on the basis of your passport application form and the papers you have provided together with answers you have given in your interview. Taking into your account your circumstances as described by you, I;m not satisfied on the balance of probabilities that you’ve demonstrated that you meet the requirements of section 281 and 320

You intend to go to the UK to settle with your wife. You first went to the UK when you were 12 years old to study. You stated that you continued to study in the UK until you were 19 years old. You stated that you then applied to the Home office for naturalisation to whom you sent your completed documents and passport. During this application to the Home Office, You worked full time in the UK. You stated that after several months, you spoke to the Home office regarding your application who told you that there was a 18 month time limit for processing application. You stated that you spoke to the Home office several times during your stay in the UK. You stated that told you that you should apply for indefinite leave of remain and not naturalisation and that your application was refused. You were sent a letter that they have not received your passport that you said you have sent to them. You reported the passport to the police as missing. During this time you continued to work full time in the UK. You have recently applied for an emergency passport issued 12th April 2007. You left the UK 23rd July 2007. I accept that you passport may have been lost, but I’m unable to determine what entry visa clearance you had obtained in your lost passport, the validity and type of entry clearance and the validity of the passport. The onus is on the applicant to provide the necessary document and details that we require in order to make a decision on you application. I’m therefore not satisfied on the balance of probability that you did not fail to observe the time limit or conditions attached to any grant of leave to enter or remain in the UK Paragraph 320 (11).
In reaching this decision to refuse your application, I have given careful consideration to your rights under article 8 of the European convention on human rights. However, I’ satisfied that there may be a perceived interference with your right family life under article 8, the refusal is justified and proportionate in the exercise of immigration control.

My comments:
Point VI] from section 281 – It would be an impossibility to prove my original entry clearance into the UK as the only record was the visa stamp on my passport which was lost. I have attempted to trace copies through old school and employment records but they do not store records for this long. As it was during my application for naturalisation to the british home office that my passport was lost I feel like I am being punished for their own mistake. I submitted all the evidence, including letters to the home office attempting to trace my passport and corresponded with Tony McNulty about the matter. It would be physically impossible for me to submit a document which no longer exists, leaving me in a permanent catch 22.
Point 11] from section 320 – I am aware that I overstayed my welcome in the UK but it was not intentional. I waited`3 years to hear about my naturalisation application during which time I kept the home office informed as to my whereabouts. I contacted them regularly to find out the results and was met each time with little success. Eventually, I had to contact Charles Clarke in order to discover the results at which point I found out I had been turned down over a simple error on my part. At this stage I realised I would have to leave the UK to return to Malaysia to renew my visa but it took me a year to get a travel document from the Malay High Commission. As I had applied for naturalisation from the UK, they believed that I had rescinded my rights as a Malaysian citizen and proceeded to ignore me for a year. It was only after a family friend of my parents intervened that the Malay High Com consented to allow me the relevant documents to return to Malaysia.
On no occasion did I hide from the British government or lie about my situation. At all times the home office knew where to contact me and I was in correspondence with both Charles Clarke and Tony McNulty. The series of administrative errors and delays on the part of both the British home office and the Malay High Comm combined to create a situation where I had no control over my position here in the UK. I was not allowed to stay, yet nor could I leave.
__ At no point did the ECO mention despite my strong emphasis, that it was only through the help of Charles Clarke and his correspondence directly with Tony McNulty, that we manage to find the highlighted information. She also failed to notate and consequently take into account, that my attempts to acquire information from the home office that were to no avail, and The Home Office’s inability to directly and immediately, give me an answer as to the status of my application and the whereabouts of my passport , were very significant contributory factors towards my perceived failure to satisfy 320(11).
I also believe this is a misrepresentation of chronology. The ECO also seemingly ignored all letters from yourself, Revd Michael Woods, and myself to the Malaysian High Commission at Belgrave square, enquiring about my alleged renunciation of my Malaysian citizenship, which is yet another contributory factor towards the breaching of 320(11). I would like to on this note furthermore emphasise the hurdles that were put before me by the Malaysian High commission in acquiring travel documents, by reminding you of the amount of time and number of letters before we got any form of acknowledgement from them. Even when a dialogue was established, not a great deal was achieved. It wasn’t until my family spoke to several MP’s and some high up government legal personnel, persuaded them to pull a few strings and a few ropes, that we manage to get a temporary single journey passport to return to Malaysia.
As to my employment, I believe I was, in essence, avoiding any direct and indirect recourse to public fund as a result of my being in the UK by working. I have evidence (however insignificant it may be) that I paid taxes and national insurance doing a good, respectable and significant job, contributing to the local community. For a person who’s not able to return to his home country (whose ambassadorial representatives deny or doubt his right as a citizen) who is stuck in a foreign country, the only thing to do is to survive by earning an honest living like other law abiding local people do, despite it’s legal ramifications, until a time and/or situation allow him to do otherwise.
Comments from immigration advisory service: “The appeal does have merit and the prospects of the appeal succeeding are good. Whilst the refusal notice refuses the application, under paragraph 281 (spouse) & 320 (general grounds of refusal), the reason given for refusal only concern your husband’s immigration history; no reasons are given for refusing the application under paragraph 281. The general grounds of refusal do appear to you husband, but these general grounds do not result in a mandatory refusal. When the general grounds apply, entry clearance should normally be refused; the onus is on your husband to show that there are good reasons why the general grounds of refusal did apply to him.â€

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Post by avjones » Sat Sep 29, 2007 9:43 am

I think you stand a very good chance on appeal.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.

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Post by howardlee » Sat Sep 29, 2007 10:03 am

thanks for the swift reply. Do you think even if the home office is in effect accusing me purposefully and knowingly overstaying. could I request for a recording of the telephon call,or shall I completely ignore's all that and go purely o humanitarian grounds ie Art. 8 ?

It's all truly confusing. how can the home office just fabricate the content of half a phone call?

Any advice is truly appeciated.

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Post by avjones » Sat Sep 29, 2007 10:22 am

Yes, I do think you should go for a disclousre request of the information the HO holds about you.

You are far better appealing on the basis on the Immigration Rules AND Article 8, not just Article 8 alone.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.

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Post by howardlee » Sat Sep 29, 2007 11:05 am

are the efforts from people back home in norwich ie petitions, media coverage a help or hinderence?

It''s really difficult to judge what's right to do and what's not.

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Post by avjones » Sat Sep 29, 2007 11:16 am

It certainly won't hinder it, and might well help a bit. More important, though, is appealing under the Immigration Rules. Evidence showing your support from Norfolk can be shown to the Immigration Judge.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.

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Post by archigabe » Sat Sep 29, 2007 1:20 pm

It's a pity some Visa officers are so difficult to deal with. It must be nice to have someone understanding in Islamabad unlike the one in Malaysia... ... ht=#116799
Last edited by archigabe on Sat Sep 29, 2007 3:53 pm, edited 1 time in total.

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Post by Docterror » Sat Sep 29, 2007 1:56 pm

I think that the ordinary ambassador is on vacation and a substitute cover send over by the HO who has no clue to how terrible they are supposed to be to applicants is running the show. Hope his post gets to be permanent in Islamabad.

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Post by howardlee » Sat Sep 29, 2007 2:02 pm

now now people...carefulwith the handbags and the sharp claws....

I think the islamabad ambassador who you said was away must've been in malaysia, so there's twice the pressure to be twice as horrible to applicants like me. now we're on he roll of slagging people off, the ECO who refused me, didn;t even look at some of the supportingletters and documents I submitted. This was proven by two of the professonal references I submitted for consideration which were in envelopes, are stil in their envelopes as we speak.

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recorded calls

Post by synapse321 » Sat Sep 29, 2007 2:30 pm

government dept usually turn round and say not all calls are recorded but some are-certainly my experience of getting recordings of calls-even difficult to get access to 999 recording unless it goes to court

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please clarify

Post by marita25 » Sat Oct 06, 2007 8:53 pm

if one fails to observe Immigration Law (320) in application for a spouse visa I did not realise it may be reason alone to refuse the application. If one has satisfied all the requirements of a spouse visa application.

Please anyone with knowledge in these matters can clarify , but my husband was an illegal immigrant (is now back in his country) and awaiting his spouse visa application. We have submitted all the documents required petaining to our relationship together in UK, Accomodation, My Finances, our 10months old child's Birth Certificate,marriage certificate etc so am befuddled to learn in this post that they can refuse solely on the grounds of not observing immigration law (320) when the ECO has analysed and deduced one satisfies the requirements of Sec (281). So in light of this post what hope then does my husband have who was an illegal entrant to the UK.

Please assist.