Urgent overstayer advice due to pending hearing

Dear all please help. My husband had previously had two 6 months visas to visit the uk from turkey and on his last application the home office suggested he had a 2 year visa. To cut a long story my husband through the date stamped was the date he had to return, not realising it was a multi entry visa and he is now classed as an overstayer.

We applied in jan 03 for right to remain and although we wrote constantly, heard nothing till his refusal in Dec 04, just 5 weeks shy of being married for 2 years. Funny enough being Mr Blunkets local constituents we heard alongside many other constituents on the same day( This was when mr blunket was being investigated!!)

We are now waiting for a hearing, and although we did have a solicitor and were given funding we found out today they will no longer represent us through the funding anyway due to our high loss risk.
My husband has the added worry of the Turkish army threatening him with desertion due to the amount of time this case has taken, and when he returns has to searve a minimum of 15 months.As a 32 year old woman our desire to start a family has been delayed due to this case and surely this must breach our right to a family life??

I cannot leave this country as i am just finishing my teaching degree and need to for fill a Newly Qualified year, and am home owner etc, plus my father wants to retire and pass on his successful business of 15 years to my husband so we can support ourselves.

As we have been married for nearly 2 and a half years, it would be so hard to loose him for so long. Can someone please give us good advice as out solicitors have let us down.
Thanks and sorry for such a long explanation.

What were the grounds of your appeal?

Thanks for replying

Grounds for appeal are:

As we are hoping to still be considered under DP3/96 due to us being short of 2 years married by 7 weeks when refusal arrived, our grounds are:

Settled spouse cannot leave due to final year studies/Newly qualified year. Univercity evidence and new work evidence to support this.

Father in law has successful business which he intends my husband to take over. Partnership now being drawn up.

Right to a family life - husbands minimum of 15 months army in addition to any spouse visa waiting time would seriously prevent this.

No need for public funding as can show adequate means to support and live( own house sizable equity).

Mistake made on visa - but we know this would be shot down in flames.

We are considering and putting together an application under the Ankara Treaty as we have been gratefully advised of our right to do this.

Our MP's office is currently looking into the DP3/96 issue for us.

Thanks so much for your reply,we are not unrealistic in our chances but feel we have a lot to fight for.

Thought i would add the solicitors grounds for appeal put on the appeal form as the issues i previously mentioned were supposed to be covered by this:

Sect 84 (1)(a)- Nationality, imm, asy act - not in accordance with imm rules

Sect 84(1)(c) incompatible with appellants convention rights

Sect 84(1)(e)not in accordance with the law

Sect 84(1)(f) decision maker should have exercised differently a discretion conferred by imm rules

Section 84(1)(g) removal of applicant would breach uk obligations under refugee convention or unlawful under sect 6 of human rights.

Additional grounds raised:
Article 8 right to a private and family life.( apparently due to 'Huang' this is now a weak argument).

Thanks again

1. When did your spouse last enter the UK?

2. On what category was said leave to enter?

3. On what date did you get married?

4. On what date did the Home Office receive his spousal FLR application?

5. Did you include details of said military service issues in the application?

6. What is the date of the spousal FLR refusal?

7. What were the grounds of spousal FLR refusal? (Should be HC395 para's in refusal notice etc.)

Thanks for your reply:

1. When did your spouse last enter the UK? Approx 2 years before 2 multi entry visa ran out so 28th Feb 01.

2. On what category was said leave to enter? Vistor visa

3. On what date did you get married? 24/1/03 even through the HO wrote it wrong on the refusal as the 24/2/03.

4. On what date did the Home Office receive his spousal FLR application?
We received a letter on the 11/2/03 acknowledging our application but we must have sent it at the end of February, recorded delivery.

5. Did you include details of said military service issues in the application?
No as the initial application didn’t really warrant as much detail as this. However on one of the 3 letters i wrote requesting a quick decision this was mentioned.

6. What is the date of the spousal FLR refusal? 1st Dec 04( 51days off 2 years)

7. What were the grounds of spousal FLR refusal? (Should be HC395 para's in refusal notice etc.

B - section 10 of Imm and asy

1 - a person who has failed to observe a condition of leave
2 - a person who has used deception in seeking leave to remain
3 - a member of such a person.

The Good News

1. It is clear that as a couple you meet the immigration rules for the spouse of a person present and settled in the UK with the exception of that pertaining to holding a valid visa (in an appropriate category) when applying to remain as said spouse.

The bad news

1. Visitor visas allow multiple entries within their validity with each entry restricted to a max of 6 months. The visa vignette clearly annotates duration of stay. That your spouse has entered the UK twice before on similar status coupled with clear notification of the conditions of stay at all overseas diplomatic posts means the ‘I didn’t know angle’ is a non-starter.

2. Your spouse has been correctly found to be in breach of his conditions of entry – how did he survive in the UK prior to your relationship? Any economic activity adds further to the breach.

3. It is consistent Home Office policy as confirmed by successive court decisions that those who are illegally in the UK cannot by virtue of marriage to a settled person expect to:

(a) have their illegality absolved
(b) jump the queues for applicants applying for spousal visas abroad.

Since both actions circumvent national immigration laws.

Discretion exists (to include DP3/96) for the Home Office to consider your application exceptionally outside the rules on the most compelling of circumstances. The applicant must raise/ address these circumstances as a minimum in their submitted forms – you did no such thing.

4. DP3/96 applies to those who have been married for a minimum of 2 yrs. Even then it is merely a consideration that the HO will review (in light of tribunal findings) rather than a blanket approval process. I appreciate you feel hard done by being 51 days shy off this mark but fact is that such did not apply to you so won’t hold at appeal. There must be a cut-off else the goal posts keep shifting from 51 days off to 60 days off etc.

5. You mention the HRA extensively. Again the courts have found for the HO where refusals are proportional to maintain said immigration controls vis a vis the HRA. Likewise the courts (to the European Court of Justice) have found that matters pertaining to Turkish Nationals and the evasion directly or otherwise of military service with consequences thereof are not against the convention grounds (e.g matter of Turgut; matter of Sepet; matter of Bulbul). This is to Article 3 = inhuman treatment a significantly higher threshold than your situation (Article 8 – right to family life). Notwithstanding these decisions the grounds of appeal in so far as the decision not being in accordance with the rules are baseless – your spouse did not have any leave to remain. The refusal was correct on a point of law – the appellate authorities will strike these sections five minutes into the hearing if they get that far. In line with many countries it is my understanding that Turkey will waive military service or require a civil component thereof on applicable grounds. Has your husband explored any of these?

6. Your details pertaining to starting a family are likewise not compelling enough to circumvent said controls.

7. The Ankara Agreement (AA) on paper appears to be a way forward – however there is a case (matter of Dari and Tum: failed asylum seekers challenging removal under Dublin convention by way of AA application) before the ECJ with an anticipated decision date in 2006 pertaining to whether those who entered/ remain by deception can avail themselves of the clauses in the relevant rules. Since this is a matter raised by the HO presumably on the basis of your spouses EC and Port records, I am unable to comment further on a success or otherwise but can tell you it will take a long time – IMHO at least 1 year.

In summary your case is way too complex for a forum. That your legal representative has refused to continue is an indication of the deemed merits of the case. Likewise a mismatch between your income vis a vis matter of funding leads me to presume cost (to appearance before the tribunal) was a factor.

Sorry this may not be what you want to hear. Note it is only my humble opinion.

Well thankfully there was some good news!

As you can imagine at this stage we know everything you say is correct, and we are more than realistic with our chances, however as a couple who have already been through so much, we feel we have nothing to loose by trying.
Regarding the lack of providing information on our initial application - We didn’t at that time even know he was an overstayer or we would have put as much info as possible ( on top of all the other letters and info we sent) plus his past visas had only been six months visas so they were completely different to his last one. The HO threw him by suggesting he should have a two year visa even through he hadn’t gone for one ( his English was quite limited). As he has family here then he was supported through them, however a family disagreement, after a family member died, has left his relatives not talking, which unfortunately affects him too as we cannot get proof of this.
The army will only delay your service for three months if you have a work visa, or so the consulate say.
Funding is not an issue for us, however our solicitor at the time told us to go for public funds as i was a mature student, although i would have been happier to self fund as this would have proven we were capable of doing so.

Thanks so much for your help, should anything come to mind that may help us, i would appreciate you letting me know through the forum.