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Judicial review - spouse visa

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Mk2010
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Joined: Fri Dec 24, 2010 3:10 am
Location: London

Judicial review - spouse visa

Post by Mk2010 » Tue Apr 19, 2011 9:47 pm

Dear all knowledgeable member of this forum,

I would like to know is it possible to file a judicial review to UKBA for my wife's spouse visa refusal.

Basically my wife entry clearance application was refused because an ECO was not satisfied that our relationship is genuine and subsisting as per paragraph 281(iii). Since then we have lodged an appeal and submitted further evidences as proof that on the balance of probabilities that my relationship with my wife is indeed genuine and subsisting.

However the ECO/ECM seem not wanting to acknowledge this evidence and not reconsidering their initial decision. They seems not even bother to submit a review statement to the tribunal for hearing.

I noticed that Judicial review may be possible as per Judicial Review and Injunctions published by the UKBA. The document stated that type of event that could be subject to judicial review which related to my case, ie:
A failure to act - such as a delay in issuing a document or making a decision

Does anyone know any case law of judicial review for spouse visa refusal?

Thanks and regards,
Mk

vinny
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Joined: Tue Sep 25, 2007 7:58 pm

Post by vinny » Tue Apr 19, 2011 10:25 pm

They have made their decision and are apparently sticking to it. now it's up to the appeal.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any given links for further information. Refer to the source of any quotes.
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HRY2005
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Joined: Tue Dec 08, 2009 3:16 pm
Location: UK

Post by HRY2005 » Wed Apr 20, 2011 12:09 pm

If you have a right of appeal, which I know you'll get from spouse visa. Like Vinny advised, pursue the appeal, I dont think you can have a JR unless if you have no right of appeal in the initial application.
Live and let live

Mk2010
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Posts: 27
Joined: Fri Dec 24, 2010 3:10 am
Location: London

Post by Mk2010 » Wed Apr 20, 2011 2:38 pm

Thanks for the reply. I would like to know on which protocol of Judicial Review (JR) that won't allow when an appeal is in a process.

JR is filled to UKBA for failing to follow their own guidance since their choose to ignore additional evidences submitted together with an appeal. If they indeed reviewed the appeal and upholding the initial refusal decision, they should as required by tribunal to submit review statement from ECM together with evidence bundle.

The appeal right is given but seem the ECO/ECM not bothering reviewing so what kind of appeal right is it? Are their simply refusing for the sake of refusing prospective immigrant.
These immigrants are somebody wife, husband, children so on. They simply playing with people life...

The tribunal hearing is mostly for the appellant to correct the UKBA decision in front of IJ, hardly require to challenge the PO from HO if they even bother to turn up. The tribunal hearing itself is a long dreadful process and unfair to the appellant. Surely why genuine people have to suffer for the emotion trauma, long separation, financial burden just because UKBA officers could not make a right decision at the first instance and worst ignoring the appeal.

Thanks and regards,
Mk

shahzad80
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Joined: Mon Jan 17, 2011 6:06 pm

Post by shahzad80 » Wed Apr 20, 2011 8:10 pm

..........
Last edited by shahzad80 on Thu Apr 21, 2011 10:04 pm, edited 1 time in total.
This is not legal advice..I am not immigration consultant or solicitor so please seek legal advice for yours immigration matters

Greenie
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Post by Greenie » Wed Apr 20, 2011 9:06 pm

no high court judge is going to entertain a judicial review in these circumstances. you would be wasting your money in my opinion.

HRY2005
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Joined: Tue Dec 08, 2009 3:16 pm
Location: UK

Post by HRY2005 » Wed Apr 20, 2011 9:23 pm

Mk2010 wrote:Thanks for the reply. I would like to know on which protocol of Judicial Review (JR) that won't allow when an appeal is in a process.
Your answer is right here.

''Normally the court will not hear a case unless satisfied that all statutory remedies open to the applicant have first been exhausted. Immigration cases should not therefore reach the stage of judicial review until they have been through the entire appeals system. However, the courts have shown that they are prepared to hear direct challenges to executive decisions in illegal entry cases, where the applicant is in the UK and the right of appeal cannot be exercised until after removal. In port refusal cases the court will entertain such applications where exceptional circumstances exist''.
Live and let live

ginoT
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Post by ginoT » Thu Apr 21, 2011 8:15 am

Hi MK

in my experience of going down the JR route you really want to try every other option as the JR will be the lengthest option in front of you as well as being the most expensive.

If you believe your appeal hasn't been lodged within a timely manner (as is still not lodged) then I would

1 - get in touch with the AIT to find out what, if anything has been done
2 - lodge the appeal directly with the AIT.
3 - send emails to the consulate, Ambassador, call up the ambassador's secretary, send faxes, all repeatedly, daily even, be an outright pain, to get them to speed things up/send you and update of why everything is taking so long. You're sometimes told you need to treat the consulate and ECOs gently otherwise they can scr€w things up for you. Complete BS. Go in hard, albeit polite, and you'll find you'll get results much quicker
4 - get in touch with your MP asking him/her to find out why the bureaucracy is taking an eternity to get back you.
etc..
etc..

You need to go down all these routes first before even thinking about the JR.

JR's aren't as difficult, lengthy and impossible as many make them out to be. But they're very tactical and if you/solicitor makes a wrong decision, the whole thing is screwed as I found out.

Having said that, if the appeal is not set in motion within the timeframe set down in policy, then you can start JR proceedings if you have the cash. Most JRs lodged are settled out of court so you might find that simply by starting the JR (which is simply sending a letter to the consulate) threatening them with one (from you solicitor) everything could sort itself out very quickly as they won't want to deal with anything like that.

Try other options first, and if within 2-3 weeks nothing has been done you can revisit the JR route

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