Settlement visa rejected, Overstaying320(7B) VS Human Rights

Olga808 · Post by **Olga808** » Mon May 26, 2008 11:03 am

Hi there

We found this site to be very helpful and would appreciate any thoughts about our case.

I applied for a spouseâ€™s visa on 2nd April 2008, just after new rules had been introduced. My husband is British and Iâ€™m Ukrainian. A month later I was called in for an interview and on the same day my entry clearance was rejected because I spent the last 3 years in the UK illegally, I overstayed my student visa.

Of course we knew about this possibility but still hoped that ECO would consider Human Rights and Article 8 in our case. Our lawyer had prepared an extensive legal representation referring to human rights. However in the rejection letter it simply said the following:

â€œâ€¦you have been in the UK illegally, without leave to remain, for the past three years. I am therefore refusing your application for entry clearance under paragraph 320(7B) of the immigration rules. Any future applications will also be refused, for the same reason, under paragraph 320 (7B) of the immigration rules until â€¦â€

ipassfield · Post by **ipassfield** » Mon May 26, 2008 11:58 am

Hi,

Sorry to hear about your problems with this new rule. I applied for my wife's spouse visa 24th March, I got the refusal 3rd April.

I do not know of any way of getting this decision overturned. I have also started an appeal using the human rights act and have been told this will take six to eight months.

I am also trying to determine if it is worth me simply re-applying as there has been another change to the rules announced 15th May.

I wish you every luck getting this decision overturned.

Please post to let us know how you get on.

Hang in there
Ian

Wanderer · Post by **Wanderer** » Mon May 26, 2008 1:01 pm

The human rights angle is difficult to argue. The stock HO answer is you human rights are not affected - just you can't enjoy them in the UK.

Olga808 · Post by **Olga808** » Mon May 26, 2008 3:35 pm

Hi Ian. Thank you for your comments.

I am also sorry to hear about problems that you have, I do know how it feels! Yes we do have to hang in there!

May I assume that you received a response to your appeal from officials (AIT or a Post in the country you applied in) telling you that it will take 6-8 months or someone else told you, e,g lawyer. We have not had a reply from the Post yet, thus me asking this.

I am wondering if this another change to the rules of 15th May applies to appeals as well as new applications.

Would you please let me know if you find out if it is worth reapplying again.

Good luck to you too.

Olja

Olga808 · Post by **Olga808** » Mon May 26, 2008 3:41 pm

Wanderer wrote:The human rights angle is difficult to argue. The stock HO answer is you human rights are not affected - just you can't enjoy them in the UK.

Hi Wanderer- I know HO isnâ€™t very sensible most of the time and it would not be a surprise to receive this answer from them.

However how can our Human Rights be not affected, we have spent 2 months apart with my husband and may be about to spend 10 months more. He is British, has a permanent job and accommodation in the UK , does not speak Ukrainian or Russian to come and live here in the Ukraine. They do have to consider all of this.

Wanderer · Post by **Wanderer** » Mon May 26, 2008 5:32 pm

Olga808 wrote:
Wanderer wrote:The human rights angle is difficult to argue. The stock HO answer is you human rights are not affected - just you can't enjoy them in the UK.
Hi Wanderer- I know HO isnâ€™t very sensible most of the time and it would not be a surprise to receive this answer from them.

However how can our Human Rights be not affected, we have spent 2 months apart with my husband and may be about to spend 10 months more. He is British, has a permanent job and accommodation in the UK , does not speak Ukrainian or Russian to come and live here in the Ukraine. They do have to consider all of this.

You'll find that they'll say u established your family life whilst here illegally and the is no reason (to them) why you cannot continue to enjoy it legally in the Ukraine.

Udachi vam. HO dom durakov....

vinny · Post by **vinny** » Tue May 27, 2008 12:25 am

See also New guidance on rule 320(7B) refusals published and 26.17 Refusal where the applicant has previously breached the UK's immigration laws [Updated 15 May 2008].

Frontier Mole · Post by **Frontier Mole** » Tue May 27, 2008 9:41 am

By the time your appeal gets to court you will have already or nearly completed your year ban. You are wasting your time and money (if you are using the same lawyer who plainly does not know immigration law.)

The court appeal will not be successful under Human Rights, AIT uphold the same values as the UKBA when it comes to out of country applications and HR.

New rules or old rules will not matter because you left before 17 March 2008 the concession does not apply. The court can not force UKBA to implement a concession in any case and certainly not back date it!

One question - what country did you marry in?

Twin · Post by **Twin** » Tue May 27, 2008 12:55 pm

Your lawyer should write to the consulate and ask them to reconsider quoting the recently announced concession 15th of may as referred to by Vinny above.

In the meantime, you might think of putting in a new application on this basis also.

ciran · Post by **ciran** » Tue May 27, 2008 1:31 pm

I have a post under "track servive arrived" - but this is worrying me...my husband left the UK on the 15th of May and applied for his visa on the 20th of may - he was refused asylum but had been in the country since Oct 2000.

he left voluntarily.

will this mean that he will be given the 12 month ban?

he has been given an interview on the 16th of July...I asked sammie the same thing but they would not have given him an interview if they were going to automatically reject his application right?

jei2 · Post by **jei2** » Tue May 27, 2008 3:03 pm

Olga808 wrote:
However how can our Human Rights be not affected, we have spent 2 months apart with my husband and may be about to spend 10 months more. He is British, has a permanent job and accommodation in the UK , does not speak Ukrainian or Russian to come and live here in the Ukraine. They do have to consider all of this.

Unfortunately that's your definition - not the Home Office's. Otherwise we would have a veritable smorgasbord of Human Rights cases.

Olga808 · Post by **Olga808** » Tue May 27, 2008 5:17 pm

"By the time your appeal gets to court you will have already or nearly completed your year ban. You are wasting your time and money".

Yes, we know that there will be no need for spending money on appeal if the ban term is over. The article Vinny sent a link for is very interesting I will ask my lawyer to call the embassy and ask them to reconsider in the light of the concession of 15th may.

If they don't reconsider, I am wondering if it would make a difference to reapply again, or they will simply take more money and reject my visa again.

Does anyone know if overstaying a visa by 3 years can be considered that I 'significantly contrived to frustrate the Immigration Rules"?

"One question - what country did you marry in?"

We married in the Ukraine as I had been in the UK illegaly and could not get married there.

Frontier Mole · Post by **Frontier Mole** » Tue May 27, 2008 9:58 pm

'significantly contrived to frustrate the Immigration Rules" is yet to be fully tested. The definition in the 15/5/2008 concession is fairly clear however it is to be balanced against the circumstances in each case on it's own merits.

If you have owned up to three years overstay I think you will be considered as significantly contrived.

If you married in the Ukraine I am assuming that was after you returned, in other words very recently?

jei2 · Post by **jei2** » Thu May 29, 2008 6:19 pm

Frontier Mole wrote:

If you have owned up to three years overstay I think you will be considered as significantly contrived.

Debatable since the concession is aimed at those who have overstayed more than 28 days. I still can't see any specific definition (apart from the old bogus marriage) and fear that this may be yet another way of subjectively refusing those who have tried to follow the new rules.

I know of some advisers who are now telling their clients to stay put because the subjective element is still very much in existence. What a to-do.

Frontier Mole · Post by **Frontier Mole** » Thu May 29, 2008 9:47 pm

Jei2,
Having hunted out a few contacts and tried to get someone to give me an idea on what will or won't be considered as significant I fully agree with your sentiment. No one seems to have a clue. The wording is woolly and leaves a lot to be desired.

It seems the trade off for Human Rights being considered in the new 15/5 setup for family members, spouse et al was to counter balance it with this wording.

It was fairly clear cut and easy to determine prior to 15/5 now it is clear as mud.

Anyone out there have a refusal on the post 15/5 significant ete etc.

jei2 · Post by **jei2** » Fri May 30, 2008 1:08 pm

Frontier Mole,

Well, I was kind of hoping you'd come back with a specific in yer face source.

I've also spent the last few days trawling the net and speaking to BIA. In fact your post has saved me a few more calls!

I second your request for input on S/C.

Or d'you think they might mean 29 days?

Olga808 · Post by **Olga808** » Thu Jun 12, 2008 8:55 pm

Visa granted

, see here: http://www.immigrationboards.com/viewtopic.php?t=27562

Immigrationboards.com: Immigration, work visa and work permit discussion board

Settlement visa rejected, Overstaying320(7B) VS Human Rights

Settlement visa rejected, Overstaying320(7B) VS Human Rights