2ND WIFE SETTLEMENT VISA REFUSED AS INVALID PAKISTAN DIVORCE

[durrans20]

Hi, I am a British and Pakistani national, living in UK and belongs to Karachi Pakistan and explain my case below so please help me regarding my wife's settlement visa refusal.

ECO Comments:

I note that your sponsor is married before to XXXX; you have also provided docuemnt to show that your sponsor obtained a divorce from her which appear to have been registered on 24/3/10. However your sponsor appear to be domicile in the UK and I would expect to see a divorce document from a UK court, where he's domicile. Therefore without seeing further evidence from you I cannot be satisfied that you meet the requirement of Immigration Rules 281(i) (a)

I was on Indefinite leave when I visited Karachi Pakistan with my ex-wife, while there we had divorce on 23/12/09 and I served a notice to Union Council and my ex-wife in Pakistan, later after 90 days on 24/3/10 I was issued a 'Divorce Certificate' by the Union Council in Karachi Pakistan and I re-marry in Pakistan on 28/3/10.

During this process I also managed to get British Nationality on 18/1/10 so now I have Pakistani and British Nationality.

When I applied visa for my 2nd wife it was refused recently on the above reason as ECO expected to see UK divorce but as per uk law overseas divorce is acceptable if its conducted by mean of 'judicial or other proceeding' and for Pakistan they accept Union Council proceeding as 'Other proceeding'.

The Law is below.

OVERSEAR DIVORCE:

Under traditional Islamic law a bare talaq divorce is deemed to have taken place when the husband pronounces three times "I divorce thee". This pronouncement dissolves the marriage instantly.

However, the Muslim Family Law Ordinance 1961 (MFLO) sets out formal requirements for the recognition of full talaq divorces in all parts of Bangladesh and Pakistan except Azad Kashmir:

the husband must give notice in writing of the pronouncement of a talaq divorce to the Chairman of the Union Council of the Ward,
the husband must also give a copy of this notice to his wife.

At the end of 90 days (or at the end of the wifeâ??s pregnancy if she is pregnant at this time) the divorce will take effect. There is provision for attempts at conciliation between the two parties during this 90 day period.

Only a talaq under the MFLO is considered to have been obtained by means of proceedings as defined under UK Acts.

If a full talaq divorce takes place in Bangladesh or Pakistan it will be recognised in the UK if the procedures laid down under the Muslim Family Laws Ordinance 1961 were complied with, and:

the husband or the wife is a Bangladeshi or Pakistani citizen;
or
he or she is habitually resident in Bangladesh or Pakistan;
or
he or she is domiciled in Bangladesh or Pakistan

So in my case I have 'FULL TALAQ' in Pakistan while we were both in Pakistan, I served the proper notices to my ex-wife and Union Council, follow the proceeding of Union Council and get certificate after 90 days, and me and my ex-wife were both ONLY Pakistani Citizen at the time of divorce peceeding start i.e 23/12/09.

Also the above law says you have to be Habitual resident OR doimicled OR Citizen of Pakistan so I was the citizen of Pakistan, I agree with ECO saying I was demicled in UK but law uses the word OR so I am full filling the CITIZEN aspect.

Please advice me should I go for Appeal or I must need UK divorce.

Thanks

[avjones]

Provided you complied fully with section 7 of the Muslim Family Laws Ordinance 1961 in Pakistan, and either you or your wife was a Pakistani national, or resident there, then the divorce is recogised in English law.

So I'd appeal.

[batleykhan]

Why did you not go through a divorce procedure through British courts as both you and your ex-wife were UK residents at the time of the divorce.

Simply leaving the UK to get an Islamic divorce quickly in Pakistan rather than going the lenfgthy and expensive procedure in UK courts is not an answer I am afraid.

Had you got your divorce and your Decree Absoloute finalized here in the UK and then went to Pakistan to get an islamic talaaq and remarried, it would have caused you no problem.

I can understand the concern of an ECO if this happens because all Muslims would fly back to their own country to get a "quickie divorce", remarry and get their new spouse in this country.

[avjones]

I assumed the first wife was in Pakistan, from the OP? Living there? Perhaps I misunderstood.

[durrans20]

actually we went there but no intention to divorce, it had happen in Pakistan while on family fight and we were advised because it had happend here in Pakistan so you need to register here to Union Counicil to recognise in the UK.

Process wise its same in UK you can get simple straight forward decree in 3 months and in Pakistan it takes 3 months so its no way quicker, it is just because it had happend there therefore we registered there and did not got for UK divorce.

[batleykhan]

Process wise its same in UK you can get simple straight forward decree in 3 months

I dont think so, its a lot more expensive and quite lengthy procedure here in UK

[durrans20]

So where did I do wrong with the Law, I understand your point about ECO's concerns but legally I did not do any thing wrong and if law permits me the option to divorce in Pakistan or UK so I availed that.

Law clearly says either party have to be either Domiciled OR Hebitual resident OR Citizen of that country for your divorce to be recognised in the UK.

[batleykhan]

So where did I do wrong with the Law, I understand your point about ECO's concerns but legally I did not do any thing wrong and if law permits me the option to divorce in Pakistan or UK so I availed that.

Law clearly says either party have to be either Domiciled OR Habitual resident OR Citizen of that country for your divorce to be recognized in the UK.

You were not domiciled or a habitual resident of Pakistan. You happened to be there on a visit there when your unfortunate incident occurred.

Merely being a citizen of Pakistan maybe not enough for immigartion purposes as you were also a Britsh citizen and resident in this country before your divorce and will no doubt be afterwards as well.

I can therefore understand why the ECO is demanding documents from UK.

Had you been domiciled in Pakistan say for a year or more at time of your divorce,I don't think you would have had any problem.

Also what has happened to your ex wife?. Is she in Pakistan or is she allowed to come back and live in UK?

[durrans20]

As I mentioned above that we both were Pakistani nationals on indefinite leave at the time of divorce i.e 23/12/09 so therefore she can come to the UK and she is in the UK with our children.

I just followed the law, I didnt know that 'Merely being a citizen of Pakistan maybe not enough for immigartion purposes ' if this is the case why they mentioned OR for all citizen, resident and domicle aspect of the law, if ECO is right then law should be changed as law permits British Pakistani to obtain divorce in the UK or in Pakistan.

This is my point, I followed the UK law and I cannot find any where in rules and law of the UK that why my Pakistan divorce is not recognisible in the UK.

Therefore I am filing a petition in the UK court to recognise my Pakistan divorce because it was obtained as per law.

[batleykhan]

Good luck to you in your pursuit of justice. This is an interesting case and the outcome of this would be interesting and helpful. Please keep us updated with outcome

[ajmal]

Good luck to you in your pursuit of justice. This is an interesting case and the outcome of this would be interesting and helpful. Please keep us updated with outcome

Yes Batley that might be an interesting case, whats going to happen, if ex-wife in the meantime wants to re-maary again in UK.

I dont think british courts will accept this divorce

[durrans20]

'Had you been domiciled in Pakistan say for a year or more at time of your divorce,I don't think you would have had any problem.'

This one year deomicile condiion is for 'bare talaq' means without any proceeding divorces.

If divorce is with proceeding like my divorce then you have to be hebitual resident OR domiciled OR citizen of that that country, this one year condition does not apply on my case I got full divorce by union council in Pakistan and served all necessary notices.

[batleykhan]

so therefore she can come to the UK and she is in the UK with our children.

What if your wife wants her legal entitlements like her share in the property, maintenance for your children etc in the UK. The Islamic divorce she got from you is not legally binding here in the UK, therefore only way she can get these is for her to go through a official UK divorce. How would you stand then????.

I still feel the ECO will successfully argue that he is within his right to insist he sees UK divorce papers as both of you were UK residents and both of you will continue to so in the future.

Like I said good luck with it

[womanhandy]

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

I believe the relevant bit is this: 5.2. Divorce obtained other than by means of proceedings (i.e. not by a court)
An overseas divorce obtained other than by means of proceedings shall be recognised under section 46(2) of the Family Law Act 1986 if:
* it is valid in the country in which it was obtained; and
* at the relevant date, both parties were domiciled in that country or one was domiciled there and the other was domiciled in a country which recognised the divorce; and
* neither party had been habitually resident in the United Kingdom throughout the period of the year immediately preceding that date.
The "relevant date" means either the date on which proceedings were begun or, if there were no proceedings, the date on which the divorce was obtained

As BOTH you and your ex-wife were BOTH "habitually resident in the United Kingdom throughout the period of the year immediately preceding that date", it would mean that the UK does NOT recognize the divorce and therefore to be divorced you would have to go through a UK court proceeding.

[avjones]

A bare taliq doesn't count. Compliance with the Muslim family Ordinances does count.

[durrans20]

I 200% agree with the Amanda, mine is not bare divorce it is full divorce and obtained as per Pakistan Muslim Family Ordnance and issued by the Union Council after all the notices served to the Union Council and other party also signed by the Chairman and Secretary of the Union Council.

My Solicitor today already spoken to the Attorney General Office in the UK and they agreed with our claim and agreed to write letter to the Immigration Office after looking our documents because they have confirmed us today that if the divorce is obtained in Pakistan by this ordnance then I was eligible to obtain divorce from Pakistan as Pakistani national.

[durrans20]

To, womanhandy

You need to see the secion 5.1 of this document, mine is obtained as per proceeding by Union Council and not without proceeding.

Also in this document you can see they clearly mention that divorce by Union Council Pakistan is considered as per proceeding and therefore recognised in the UK.

so as per 5.1 I need to be either Habitual resident or Domicile or Citizen of Pakistan, so I was the PAKISTANI NATIONAL. You may read section 6.1 of this document for more information.

The one line answer of the question is, A PAKISTANI NATIONAL DOMICILED IN THE UK CAN OBTAIN DIVORCE IN PAKISTAN TO BE RECOGNISED IN THE UK (only by PROCEEDING i.e: by Court or Union Council)

[batleykhan]

I think the OP is adamant that he has complied with the relevant legislations and appearsto know what he is talking about.

I think the lictmus test will come when he appeals against the matter and I for one will be interested to know outcome as it could have sigificant impact about overseas divorce here in UK.

Durran

You still havent answered my questions about your ex wifes legal entitlements here in UK if she decides to pursue them from you?. Whilst your divorce maybe accepted as being genuine and compliance with your countrys legislations, those legislations and her entitlements would not be accepted under British law.... so what would you do if she pursues you forthese things here in UK?

I just like to know your views on this

[avjones]

It doesn't matter in immigration terms where his wife was resident. They were both pakistani nationals, and both therefore entitled to have their divorce recongised in the UK under UK statue.

[durrans20]

batleykhan

According to UK law and other overseas divorce case laws, she is always have entitlement to claim her financial claims from me regardless the divorce has taken place overseas as long as the divorce is acceptable in the UK she has all the rights to claim her entitlements.

Mine was not the 'Islamic Divorce' , it was legal divorce from the relevant authority of one country therefore totally acceptable in the UK as per UK law.

We have already in one settlement agreement about the children maintenance where I am paying her £1000 for the children maintenance for the financial settlement we also pursuing UK court for full and final lum sump financial settlement.

I also need to mention you that these settlement arrangements are no where near the immigration problems and ECO just cannot refuse visa for my new wife basis on these arguments, his job is to see the obtained divorce is recognised in the UK or not.

Also, you sound like you saying that overseas divorces are not acceptable in the UK dispite it is obtained as per law , but this is not the case.

[batleykhan]

Well the only way you are going to find out the answer is to appeal and wait for the decision of the adjudicator

[durrans20]

Hi All,

Today we got the calling letter, I was confident from the day one that my documents were OK, With the grace of great Allah we got the following letter to re-submit the passport. thanks for all your help.

CALLING LETTER

We have received your completed appeal papers and further supporting documentation in respect of your recent entry clearance refusal. In light of these new submissions it has been decided that the refusal decision should be overturned and the visa issued. You should re-submit your passport as detailed in this letter to allow this process to be completed.

With reference to your application for entry clearance, please call at your nearest Gerry's International Visa Application Centre, call centre’s number: 0900 10411, on any working day with the exception of public holidays to get an appointment for submission of your passport.

[mrniceguy]

Hi,
I've received a similar letter and very confused on how to progress.
- I used a immigration solicitor to do my application and wished I was advised as I could have applied for a UK Divorce.
- I was advised to just continue with divorce in Pakistan I was married here and hold dual nationality (ie Pakistani and British). I received my Divorce Certificate from NADRA (Govt of Pakistan) approx 4 months later.
- In Parallel I did check with UK Expat Divorce lawyer and he advised me that Pakistan divorce was acceptable globally and did not need to do an divorce application in UK.
- I've been in Pakistan for more than a year now (if it means anything)
- I have been now told I should Appeal but I am more concerned about doing the right thing. Don't want to ruin my chances or my case just because I dont have good/complete advise.

[durrans20]

As long as your divorce is taken as per Pakistan law it should be recognised in the UK.

so you need to make sure with the divorce certificate issued by NADRA, you also need to include.

-your notice of divorce to the union council.
-your notice of divorce to your ex-wife
-wait for 90 days and after that you get this certificate.

so as long as you have all these documents your divorce will be recognised in the UK as long as you were Pakistani national at the time of beginning of the divorce process (i.e when you give notice to union council)

[mrniceguy]

Thanks Durrans for advise

May I ask who you used for your immigration advise.

Unlike your case I am also domiciled in the UK. (by birth) even though I have a Pakistani passport (is this going to be my justification for applying for divorce in Pakistan) and is it irrelevant where my ex wife is domiciled ?

Process i followed
- The Statement that I gave the union council has been submitted to them. (on some stamp paper in urdu)
- In addition I remember I had to return to the union council a few times to see if there was a response from my ex-wife or her wali
- There was an advert then placed in the local newspaper
- Then after all that I was then informed one day that I have been issue a Divorce Certificate.

Providing Evidence
1 - Letter I can perhaps can a copy ? and then an attested translation. hence i served the union council
2 - How to do I prove my ex-wife was served ? as she did a no show. and then an ad was put in the local new paper.
3 - Then after a certain period the divorce was issued. Do i need to union council to write me a letter confirming this. In addition the NADRA form does state when the talaaq was given. and when the certificate was issued.

Do I need to tell that I am a Pakistani national ? because they already had copies of my Pakistan passport attached proving I have been living in Pakistan with my current wife for over a year.

Really appreciate your advise.

Thanks