Settlement Visa- overstay & working

[tired & confused]

Hi

First off - apologies for the long post, find it difficult to leave parts out as they all seem important (to me at least). My major questions/discussion points are underlined.

My wife (Ukrainian) and I (British) are part way through a settlement application for her to return to the uk on a spouse visa. Waiting for news of request for interview, approval or worst case rejection. Application was made April 2008.

The posts on this board have been a great help in preparing the huge volume of supporting evidence we delivered to the visa centre in Kiev.

We are concerned about how, assuming an interview occurs, if asked in the interview she should deal with questions about how she obtained work while in the uk. Although she entered the uk on a valid passport with visa and extended this to work legally she was caught up in previous rule changes that meant a work visa was approved was then advised due to new rules LTR would not be granted and advised by the HO to retract the application which she did...

However by the time this had all happened her existing visa had expired; she remained in the uk and later obtained employment. She returned home voluntarily on her passport in Feb 2008.

As she worked at the job for a significant amount of time (2yrs) and it is also where we met it would make neglecting to mention it or avoiding it during an interview rather difficult. We have a lawyer and he has advised not to mention the way that the job was obtained unless specifically asked about it. We have not mentioned her employer in the online application as she resigned prior to returning home. We do however expect to be asked about it. Whilst we are waiting I thought I could use some of my nervous energy to enquire about how the members of this board think the previous breaches of immigration (& criminal??) law will affect the application given the new rules http://www.ukvisas.gov.uk/en/ecg/chapte ... 0seventeen that have come into force. On first read the ECO guidelines suggest an automatic refusal 12 month(!!) ban on entering the UK but possible exclusion due to the right to family life. However would they be able to say that if we wish we can have a family life in the Ukraine? Bearing in mind I speak minimal Ukrainian and my work which I support us "the family" with is in the UK.

Thanks in advance for your advice

[eliasuk4u]

I don't think the ECO would be interested in first place about her past in UK. Having said that if asked I would strongly recommend to tell the truth as any false information provided can be easily verified and will have a serious consequence on your wife's spouse visa application.

On first read the ECO guidelines suggest an automatic refusal 12 month(!!) ban on entering the UK but possible exclusion due to the right to family life. However would they be able to say that if we wish we can have a family life in the Ukraine? Bearing in mind I speak minimal Ukrainian and my work which I support us "the family" with is in the UK.

The 12 months ban has not come in to effect yet I think it will be implemented from 1st of october.
In regards to moving to Ukraine.. I don't think ECO will ask you to do that because probably Article 8 applies to you.

[tired & confused]

I would strongly recommend to tell the truth as any false information provided can be easily verified and will have a serious consequence on your wife's spouse visa application

Everything I have read agrees with this comment. Potential of a 10 year ban if any deception is used. One question I have regarding this is whether neglecting to mention (as not directly asked) in order to not self incriminate rather than lying outright to a direct question can be considered in the same way if undisclosed facts are later uncovered?

The 12 months ban has not come in to effect yet I think it will be implemented from 1st of october.
In regards to moving to Ukraine.. I don't think ECO will ask you to do that because probably Article 8 applies to you.

As I understand it the new rules came into force from 1st April 2008, just the wrong time for us. There is an exemption as below but that applies to those who leave/have left voluntarily between 17th March 2008 and 1st Oct 2008, again just the wrong time for us as she left in Feb 2008

"26.17.5 Concession for applicants who were in the UK illegally on or after 17 March 2008 (the date of the announcement) and left the UK voluntarily before 1 October 2008"

The comments I have seen regarding article 8 seem to suggest there must be reasonable reason to believe that family life cannot be conducted in a country other than the Uk e.g. if the other country in question was in state of civil war. Just wondering how far this extends. Is it reasonable for them to suggest that I can go and live in the Ukraine with my wife even though it would have a huge effect on me both financially and socially?

[eliasuk4u]

whether neglecting to mention (as not directly asked) in order to not self incriminate rather than lying outright to a direct question can be considered in the same way if undisclosed facts are later uncovered?

While filling the application form I would recommend to answer to all the questions honestly and don't lie. However based on the application the interview may be conducted by ECO on such occassion answer only to the question asked and don't give too much informations which is not asked for.

As I understand it the new rules came into force from 1st April 2008, just the wrong time for us. There is an exemption as below but that applies to those who leave/have left voluntarily between 17th March 2008 and 1st Oct 2008, again just the wrong time for us as she left in Feb 2008

"26.17.5 Concession for applicants who were in the UK illegally on or after 17 March 2008 (the date of the announcement) and left the UK voluntarily before 1 October 2008"

On 17 March in the House of Lords debate on HC321, the government announced a concession outside of the rules. The crux of this announcement was...
A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 327B of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

The phrase "...a number of people..." refers (among others) to ILPA who had earlier announced an intent to pray against the bill.

The concession itself is a six-month grace period for overstayers to leave the UK and to thereby avoid the mandatory refusal scheme. As stated, overstayers who leave prior to the October deadline will not be subject to the provisions of HC321.

The comments I have seen regarding article 8 seem to suggest there must be reasonable reason to believe that family life cannot be conducted in a country other than the Uk e.g. if the other country in question was in state of civil war. Just wondering how far this extends. Is it reasonable for them to suggest that I can go and live in the Ukraine with my wife even though it would have a huge effect on me both financially and socially?

Civil war?? I wonder where did you get that information from???

Article 8

Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[tired & confused]

Thanks for your feedback.

Point 1 - agreed, I think that honesty is essential but no need to provide them with rope to hang you with when they have not even asked for it.

Point 2 - Although it would make sense that it applies to anyone that leaves before October 2008 the wording does explicitly say on or after March 17 2008. Feb 2008, when my wife left, is not within these dates. Maybe on appeal this would be overruled as it does not make sense that a person who leaves voluntarily a month earlier is treated more harshly than someone who leaves after the announcement is made ?

Point 3 - Civil war was the most over the top example I could think of in relation to why family (or private) life could not be reasonably enjoyed elsewhere. I suppose fear of persecution or torture would be more valid examples.

http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary
Page 9, stage 2 of this pdf

Stage 2: If (or assuming that) family life exists, will refusal / removal interfere with that family life - are there insurmountable obstacles to the family enjoying family life elsewhere?
Article 8 does not guarantee a person or their family the right to choose to live in the UK if they are able to live with their family elsewhere. Refusal of leave, or removal, will only interfere with family life if there are serious (insurmountable) obstacles to that family life being pursued elsewhere (so that in practice refusal or removal will result in the family being split up).
The Court of Appeal in Mahmood [2000] EWCA Civ 315 stated that:
•
Article 8 does not impose on a state any general obligation to respect the choice of residence of a married couple; and
•
Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Article 8 provided there are no insurmountable obstacles to the family living together in the country of origin of the
member excluded, even where this involves a degree of hardship for some or all members of the family.

So my question here is how do we make a good case for refusal interfering with family life? How to reply to the question "why can we not live together in the Ukraine"? Possibly covered in this section taken from page 12 of the same document.

In order to certify the claim as clearly unfounded, caseworkers must be satisfied that any argument that the family could not accompany the claimant to the receiving country would be bound to fail. This is a high threshold, especially when it is uncertain whether the claimant’s family would be granted entry to the country to which the claimant would be removed. It would not, therefore, be appropriate to certify on the basis that the family can accompany the claimant to the receiving country if they are not of the same nationality as the claimant, unless there is evidence to show that it would be possible for them to live as a family in that country (if, for example, they have lived there together previously).

[eliasuk4u]

how do we make a good case for refusal interfering with family life?

What makes you think that your wife's entry clearance application would be refused?? I wouldn't personally worry too much about the refusal at this stage. I know you are thinking of worst situation but I wouldn't worry about that now. For the moment I would concentrate on collecting documentation making the case stronger so that the entry clearance would be granted strainght away.
Good luck.

[tired & confused]

Got a decision today after my wife having to attend an interview.

Refused, they have based the refusal on 320 B of the immigration rules as she had previously overstayed. They have also added that all applications for the next 12 months would be refused for the same reason.

No mention of the article 8 human rights issues that we had made part of our application. Seems like you could get machines to reach these initial decisions. Maybe they have no authority/ability (mental capacity?) to take all factors relating to a case into consideration at once. See rule, eat rule.

Seems ridiculous that they would try to enforce the 12 month ban on someone that leaves voluntarily prior to the date of the announcment. If you do what they view to be the "right" thing prior to them making an announcement then you do not qualify.

26.17.5 Concession for applicants who were in the UK illegally on or after 17 March 2008 (the date of the announcement) and left the UK voluntarily before 1 October 2008

[tired & confused]

We got there in the end. After the amendments to 320 7B stating that this should not apply to spouses the embassy in Kiev has contacted my wife and told her the decision has been overruled.

Many thanks for the advice and best of luck to everyone else in similar situations.

[ciran]

thats really good news! could you answer the original question on this post - did your wife tell them she worked whilst in the uk? if so what happened?

[eliasuk4u]

We got there in the end. After the amendments to 320 7B stating that this should not apply to spouses the embassy in Kiev has contacted my wife and told her the decision has been overruled.

Thats a good news. Did the British embassy asked her to submit her passport back? Please keep us updated.

[tired & confused]

could you answer the original question on this post - did your wife tell them she worked whilst in the uk? if so what happened?

We were advised that we were under no obligation to disclose this fact unless specifically asked. The ECO seemed completely focussed on the overstay issue in the interview (possibly because of the mandatory nature of refusal he believed it carried). He did not ask about her time in the uk and whether she was working.

Did the British embassy asked her to submit her passport back

She was asked to return to the embassy where they asked for her passport. After an hour it was returned with the visa attached.

[eliasuk4u]

After an hour it was returned with the visa attached.

Congrats!