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Refusal of Visa for wife due to Tier 5

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Queryguy
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Refusal of Visa for wife due to Tier 5

Post by Queryguy » Tue Nov 23, 2010 3:36 pm

Hi there all, was hoping if someone could give us some advice. My wife is Australian (I am British) and entered the country on a Tier 5 Youth Mobility visa. After living together for nearly 1.5 years, and with the expiry date looming we looked into extending her stay. After being told that it wouldn't be possible to apply for a non married couple visa, we decided to get married and very happily did so the past weekend (after obtaining the COA in the summer). Unfortunately after applying under the FLR (M) form we have been rejected as they have said that my wife must leave the country under the terms of her Tier 5 visa.

Does anyone have any advice or suggestions on what we should do next? .. it seems very unfair that she was allowed to come here, and even be cleared for marriage, but we then get told we don't have the freedom to live together! ... its looking like she will have to return to Australia and apply again, but money is already tight for us and we've just wasted £800 to be rejected :(
Last edited by Queryguy on Tue Nov 23, 2010 9:46 pm, edited 1 time in total.

wf
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Post by wf » Tue Nov 23, 2010 6:32 pm

She should have been allowed to switch.

http://www.ukba.homeoffice.gov.uk/partn ... s/#header2
If you entered the UK in a different immigration category (for example, as a student), you may be allowed to switch into the category of husband, wife or civil partner if we have given you a total of more than six months' permission to live here since your most recent admission to the UK.
it was not allowed for a period so maybe they are confused and have incorrectly declined her.

You need to appeal citing the above reference.

Queryguy
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Post by Queryguy » Tue Nov 23, 2010 8:14 pm

That's what we thought, we've followed the advice on the website and did all we could, but it seems that wasn't enough. It seems that they will not let her switch from tier 5 and are just saying that she needs to go back to Australia and apply from there as a wife of a settled resident. Will await the actual refusal letter and go from there.

Have spoken to 'Capital visa' and they reckon the government has messed up, but I still don't feel so sure. If this is the case why didn't the border agency at least warn us when we got the COA to get married. We could have put the £800 towards getting a resolution to our problem!

vinny
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Post by vinny » Tue Nov 23, 2010 9:18 pm

I don't see anything under 245ZI-245ZL to prevent switching under 284.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

Queryguy
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Post by Queryguy » Tue Nov 23, 2010 9:20 pm

I've just checked through the fine print and can't see anything that says she cant stay as my wife, other than a small statement on the Tier 5 guidance that says you '..cannot switch into any other category' so perhaps they have messed up ... guess its just a waiting game until they send the documents to us.

Queryguy
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Post by Queryguy » Tue Nov 23, 2010 9:20 pm

vinny wrote:I don't see anything under 245ZI-245ZL to prevent switching under 284.
yeah same here (as above) ... thanks for looking Vinny

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Post by vinny » Wed Nov 24, 2010 9:12 am

Queryguy wrote:a small statement on the Tier 5 guidance that says you '..cannot switch into any other category'
Tier 5 (Youth mobility scheme) policy guidance wrote:switching into another route
Not permitted. Switching into any other Points Based System route or into visitor status is not allowed.
Note that switching under 284 is not into the Points Based System route nor into visitor status.


Moreover,
[url=http://www.bailii.org/uk/cases/UKUT/IAC/2010/00304_ukut_iac_2010_fa_nigeria.html]FA and AA (PBS effect of Pankina) Nigeria [2010] UKUT 304 (IAC) (25 August 2010)[/url] wrote:The effect of the decision of the Court of Appeal in Pankina is not limited to the ‘three-month rule’ in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the purposes of immigration appeals.
If she has a right of appeal, then do appeal. Else, if she has no right of appeal because she has leave remaining, then request a reconsideration of the decision.
This is not intended to be legal or professional advice in any jurisdiction. Please click on any links for further information. Refer to the source of any quotes.
We do not inherit the Earth from our ancestors, we borrow it from our children.

nessQ
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Post by nessQ » Sat Dec 11, 2010 3:04 pm

Have you received any further updates Queryguy? I'm so sorry you are having to deal with this!

My husband and I are about to apply for my FLR(m) in Croydon on Dec 29th and I was absolutely sick when I read about your ordeal considering you and your wife are in the exact same position as us (my YMS is about to expire in Jan)!

I too have been following the policies very carefully and I even called the HO who confirmed that I would be able to switch from my YMS visa to spouse in the UK. Now I'm scared to death that we'll be refused and I'll have to go back to Canada to re-apply when my visa expires on Jan 11th (after paying the £800 fee too!).

Do you think it would help if I came to the appointment armed with the policy guidance? It seems that these rules are open for interpretation but would the immigration officer even be will to listen?

davesharpe
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Hrm

Post by davesharpe » Fri Dec 17, 2010 12:48 pm

I am about to go through this process as well! Our appt is end of January would appreciate any updates from both of you (OP & NessQ).

Thanks,
Dave

Queryguy
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Post by Queryguy » Tue Feb 01, 2011 12:35 pm

Hi all, sorry for the late reply.

In the end I called the UKBA and was only given the advice that "no decision had been made" on my wifes visa.

After a couple of weeks my wife got a phone call and was told that her visa application had been successful and she recieved her passport and visa in the post a week or so after.

Im still not sure why we were rejected, they either wanted more time to mull the application over, or had messed up!

brian1983
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tier 5 youth mobility scheme, can we switch to marriage visa

Post by brian1983 » Tue Jul 02, 2013 6:06 pm

at present have met my wife to be she is south korean, we need to switch to tier 5 marriage visa, if it is possible , read article 284 on partners info, cant discern what it means

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Casa
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Post by Casa » Wed Jul 03, 2013 11:38 am

There isn't a Tier 5 marriage visa. What category of visa does you wife have at present and what legal residency do you hold? i.e British Citizen?

This thread by the way is over 18 months old. :?

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