Spouse visa appeal (article 8 human rights)

[Muhammad jabbar 1993]

UK FAMILY VISA EXCEPTIONAL CIRCUMSTANCES UNDER IMMIGRATION RULES

In fact, before Aug 10, 2017, the Home Office considered exceptional circumstances in UK family visa applications on human rights grounds outside the Immigration Rules under ECHR Article 8. However, the Statement of Changes HC290 inserted paragraphs GEN.3.2. and GEN.3.3. in Appendix FM to consider UK visa applications on exceptional circumstances under the Immigration Rules. Accordingly, from Aug 10, 2017, it is a legal binding on the Home Office to consider a UK family visa application for exceptional circumstances under the Immigration Rules for unjustifiably harsh consequences and in the best interests of a child.

GEN 3.2……….a breach of Article 8 of the European Convention on Human Rights, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application…..

GEN 3.3……….the decision-maker must take into account, as a primary consideration, the best interests of any relevant child…..

Appendix FM


A REFUSAL MAY TANTAMOUNT TO BREACHING ECHR ARTICLE 8

Perhaps, a refusal of a family visa refusal may tantamount to breaching ECHR Article 8 (the right to respect for private and family life) if a refusal may result in unjustifiably harsh consequences for the applicant, their partner or a relevant child. And also if a refusal result in unjustifiably harsh consequences for another family member under ECHR Article 8. Therefore, it is not possible to refuse a UK family visa application without considering the exceptional compassionate circumstances.


WHEN EXCEPTIONAL CIRCUMSTANCES UNDER ARTICLE 8 ARE NOT ENGAGED?

Exceptional circumstances for UK family visa applications under Immigration Rules are only considered when ECHR Article 8 is engaged. However, Article 8 is not usually applicable, in case of the following types of relationships:

parents and their adult childrenadult siblingsbetween wider family members, such as grandparents and grandchildren or aunts/uncles and nephews/nieces

However, there are exceptions to this general rule in circumstances of unusual or exceptional dependency.


IS UK VISA ON COMPELLING COMPASSIONATE GROUNDS OUTSIDE THE RULES?

Yes. When a UK family visa application under Immigration Rules does not qualifies for exceptional circumstances, the decision maker can still consider the application on compelling compassionate grounds if a refusal would result in unjustifiably harsh consequences for the applicant or their family. However, not considering a UK visa application on compelling compassionate grounds does not invoke Article 8. Therefore, UK visa on compelling compassionate grounds is usually outside the rules.

EXAMPLE OF UK VISA ON COMPASSIONATE GROUNDS

An applicant or relevant family member is suffering from serious ill-health. However, a refusal does not constitute a breach of ECHR Article 3 or 8.


1. MIN INCOME REQUIREMENTS AND EXCEPTIONAL CIRCUMSTANCES

In term of paragraphs GEN.3.1. and GEN.3.3. of Appendix FM a decision maker needs to consider exceptional circumstances- where a refusal of an application under family settlement 5-year route could otherwise breach ECHR Article 8- for other credible and reliable sources of earnings or finance available to a couple are taken into account whilst considering whether an applicant meets the minimum income requirement under paragraph E-ECP.3.1, E-ECC.2.1, E-LTRP.3.1 or E-LTRC.2.1 of Appendix FM.

Indeed, for income-related exceptional circumstances under the Immigration Rules, it is critical that other credible and reliable sources of income, financial support or funds- such as the migrant partner’s prospective earnings or guarantee of third party support- must meet the minimum income requirements.

Moreover, Paragraph 21A of Appendix FM-SE sets out objective criteria for the genuineness, credibility and reliability of other sources of income, financial support or funds. Accordingly, such other source(s) of income, financial support or funds may only count towards meeting the minimum income requirement if an applicant is able to satisfy their genuineness, credibility and reliability.

Therefore, if other income or sources enables an applicant to meet the min income requirements then an applicant gets a visa on exceptional circumstances under the 10-year partner route to ILR. However, an applicant can subsequently switch to the 5-year settlement route if he/she is able to meet the requirements under the 5-year route for leave to remain application as a spouse, civil, unmarried, same-sex partner.

[Muhammad jabbar 1993]

Hi everyone
Just for update....

We have received letter from HO after submitting our appeal and they still said that their decision was right. Now we are waiting to receive court hearing date.
In letter they mentioned this.

3. The Appeal
I have reviewed the grounds of appeal and all the supporting documents submitted with the
appeal papers.
Based on the refusal notice and the additional documentation submitted, I am satisfied the
original decision to refuse was correct. The decision is therefore in accordance with the law
and the Immigration Rules and I am not prepared to exercise discretion in the appellant’s
case.
The appellant has provided evidence of confirmation from the third-party sponsor that they
are willing to provide financial support for the appellant and are financially able to do so. In
support of this statement evidence has been provided of the third-party sponsor’s payslips,
employment letter and personal bank statements. However, it is noted there is little documentary evidence of the nature, extent and duration of any current or previous financial
support which they have provided to the applicant or their partner.
I have considered, under paragraphs GEN 3.1. and GEN 3.2. of Appendix FM as applicable,
whether there are exceptional circumstances in the appellant’s case which could or would
render refusal a breach of Article 8 of the ECHR because it could or would result in
unjustifiably harsh consequences for the appellant or the appellant’s family. In completing
this assessment, I have also taken into account, under paragraph GEN 3.3. of Appendix FM,
the best interests of any relevant child as a primary consideration. Following a thorough
assessment of the appeal I am satisfied that there is no basis for such a claim.
Given all of the above considerations, I maintain the ECO’s initial decision to refuse entry
clearance.

[seagul]

Hi everyone
Just for update....

We have received letter from HO after submitting our appeal and they still said that their decision was right. Now we are waiting to receive court hearing date.
In letter they mentioned this.

3. The Appeal
I have reviewed the grounds of appeal and all the supporting documents submitted with the
appeal papers.
Based on the refusal notice and the additional documentation submitted, I am satisfied the
original decision to refuse was correct. The decision is therefore in accordance with the law
and the Immigration Rules and I am not prepared to exercise discretion in the appellant’s
case.
The appellant has provided evidence of confirmation from the third-party sponsor that they
are willing to provide financial support for the appellant and are financially able to do so. In
support of this statement evidence has been provided of the third-party sponsor’s payslips,
employment letter and personal bank statements. However, it is noted there is little documentary evidence of the nature, extent and duration of any current or previous financial
support which they have provided to the applicant or their partner.
I have considered, under paragraphs GEN 3.1. and GEN 3.2. of Appendix FM as applicable,
whether there are exceptional circumstances in the appellant’s case which could or would
render refusal a breach of Article 8 of the ECHR because it could or would result in
unjustifiably harsh consequences for the appellant or the appellant’s family. In completing
this assessment, I have also taken into account, under paragraph GEN 3.3. of Appendix FM,
the best interests of any relevant child as a primary consideration. Following a thorough
assessment of the appeal I am satisfied that there is no basis for such a claim.
Given all of the above considerations, I maintain the ECO’s initial decision to refuse entry
clearance.

That is something the same you had been forewarned from the very outset.

[BordersDivide]

Your wife can submit a medical reason why she can’t work full time - mental health related (please be genuine)

A letter from school that highlights negative impact on the kids to move abroad, if possible. A private agency can also be hired to observe kids and write letters for immigration. Expensive about £1200.

Some evidence letter, can be school that suggests biological father plays vital role in kids life and again would have negative impact on kids development if they had to relocate.

This is just a suggestion from my personal genuine reason. What fits my circumstances may not fit yours completely.

I have my hearing confirmed for next month inshallah (Upper Tribunal) and I now have new evidence which is letter from sons school. They wrote this all by themselves because they are concerned about my sons state. Not even sure if using this new evidence would fit in with our strategy, as we don’t want the outcome of having a fresh appeal hearing again as that would mean loooonger wait and it’s defeating me badly and now effecting our small child.

You need to show them evidence of all the reasons she can’t work FT, the kids needing you and their fathers role in their life and relocating issues etc.

[seagul]

A private agency can also be hired to observe kids and write letters for immigration. Expensive about £1200.

That won't carry any weight unless written by the local council or other UK registered charity organisation

Some evidence letter, can be school that suggests biological father plays vital role in kids life

That might even exacerbate the op's case to large extents.

[THO]

Borders, you are still arguing the same case, you have added no substantial reason why you should be given a visa. You are still in the same situation, and seem to be clutching at straws hoping that if you keep appealing, you will find a judge who will decide in your favour.

How can you convince a judge that the children need you and that the mother needs you? You don't live with them, nor ever have. There father is in the UK, and by your own admission his children need him. She is on income support, so can't even pay for your food when you arrive. Offers of support from uncles will be ignored since they are not legally binding and HO will consider that he only wrote that note to help you get a visa.

Your human rights have not been breached, neither has your wife's, since neither of you were forced to marry, and both of you knew that you do not qualify for a spouse visa.

How will you fund the payment of the visa and also IHS charge?

To win this, you will need to change your approach and apply when you meet the financial minimum. If your uncle is really prepared to support you, can't he just employ your wife at a sufficient salary to meet the criteria?

Have you ever applied for a visa to the UK before?

[Muhammad jabbar 1993]

Your wife can submit a medical reason why she can’t work full time - mental health related (please be genuine)

A letter from school that highlights negative impact on the kids to move abroad, if possible. A private agency can also be hired to observe kids and write letters for immigration. Expensive about £1200.

Some evidence letter, can be school that suggests biological father plays vital role in kids life and again would have negative impact on kids development if they had to relocate.

This is just a suggestion from my personal genuine reason. What fits my circumstances may not fit yours completely.

I have my hearing confirmed for next month inshallah (Upper Tribunal) and I now have new evidence which is letter from sons school. They wrote this all by themselves because they are concerned about my sons state. Not even sure if using this new evidence would fit in with our strategy, as we don’t want the outcome of having a fresh appeal hearing again as that would mean loooonger wait and it’s defeating me badly and now effecting our small child.

You need to show them evidence of all the reasons she can’t work FT, the kids needing you and their fathers role in their life and relocating issues etc.

Hi
Thank you so much for your advise.
Well yeah mentally she not in really good condition as she have high level of stress and even collapsed many times and paramedics came for her. And regarding kids also their biological father don't have any contact with them, youngest 2 kids even not recognize their biological father they call me dad. It really hard for her and kids to move on alone and as I mentioned earlier there is no any other option for us to move out of UK they even don't have any other nationality. Well I was just going to say that we are afraid to open up regarding her mental stress or hardships to a doctor for letter as they may involve agencies who take kids away and we never ever can stay even one day away from kids.

Secondly if I have to prove them my role as a father or my importance in their life, from where me can get a letter, Or we just can write a witness statement?

She don't have any family who can help her so she work full time. She on her own all alone with 3 kids without any help not even from kids biological father who just pay child maintenance.
If we want to prove them 3 points please suggest what type of evidence we can have ?
1. They can't leave UK
2. She can't work full time
3. The importance of a husband and father in their life.
Maybe they will say that they managed before me also but the truth is it was not easy and it's effecting them.

If we will write we can write a lot that is valid and reasonable but I just want make sure what they accept as evidence?

And in sha Allah best of luck for your UT hearing hopefully this time you will succeed and finally all your hardships will end and you guys will be together. Please let us know the out come .I make dua for you and for all those who struggling to be with their other half.

Thank you

[Zerubbabel]

Hello

Just my 5 cents as I am reading the developments of this case.

If your wife has history of mental instability, causing her to faint, calling A&E services and all the aggravation, does she hold a disabled status by any chance? If not is she able to apply for such status based on her medical history?

That's to say if she is on Disability Allowance (DLA/PIP) some of the financial requirements may be alleviated.

[BordersDivide]

I can see why having mental health assessed can scare you. Maybe just general points can be discussed with the GP, and go through counseling they will offer. A record of stress, anxiety or depression with GP.

Not having a relationship with biological father doesn’t give you advantage (I think). I misinterpreted and assumed they were close.

Evidence of your need in their lives - maybe school letter or if kids are older and they have expressed stressed or anything regarding this matter? This can be taken to GP too. Im not too sure as I don’t have experience of this.

Witness statements - a document we make but no one cares to read! I have been addressing all issues since the initial application, provided updated witness statements and additional from family, friends and colleagues on hearing.

The system is wrong and refusal most of us have to live with will state “... after careful consideration we have made decision to refuse entry visa for the best interest of the child” like least make an effort to write a decent refusal I can live it!

Sorry for all people suffering. I pray for you all and hope some day when it’s not too late for this to end. So many people have misused the system and they continue to still do so, but honest pay the price.

[THO]

The issue is not the applicant's honesty, it is whether the he/she meets the requirements to qualify for a visa. If every applicant was able to argue extenuating circumstances, and be granted a visa outside, then that would make the guidelines irrelevant. And if only some people can overturn the correct decision, then that makes it unfair on the rest who are unable to do so.

The HO have to stick to the rules, and in cases where a visa is not granted when evidence has been ignored/ missed, then the decision is normally overturned at appeal. But sadly, your wife and you do not meet the minimum income requirements. It is very hard for you, and I wish you luck, but I think you need to rethink your strategy, and maybe get a job in the UK.

[Muhammad jabbar 1993]

Hey
Hope you all are well.
We received email to provide contact information and Appeal skeleton arguement (ASA).
Hope soon we will get our hearing date.
In there review letter they mentioned this..

The appellant has provided evidence of confirmation from the third-party sponsor that they
are willing to provide financial support for the appellant and are financially able to do so. In
support of this statement evidence has been provided of the third-party sponsor’s payslips,
employment letter and personal bank statements. However, it is noted there is little documentary evidence of the nature, extent and duration of any current or previous financial
support which they have provided to the applicant or their partner.

Well we never needed support before that's why there is no any history. I don't know why after considering 3rd party they raised this point when our 3rd party can come in court and can explain it and can make sure about the responsibility.

And a quick question also please can Respondent officer change the decision after reviewing the ASA?

[Muhammad jabbar 1993]

Hi everyone
Hope you all doing well.
It's been really hard time being apart as our appeal is still in process.
Earlier we received an email saying that there will be pre hearing of our appeal on Feb-11-2021 but we or our representative no need to attend it.
After that it's been 4 weeks but we still didn't got any update.
Can anyone help us with their knowledge how long we have to wait for our hearing date ?
We attached all updated documents with a skeleton arguement and statements. Is there any chances that they might overturn decision before hearing or without hearing?
Please if anyone can share their experience or advise will be appreciated. Thank you

[Muhammad jabbar 1993]

Hi everyone
Hope you all doing well.
It's been really hard time being apart as our appeal is still in process.
Earlier we received an email saying that there will be pre hearing of our appeal on Feb-11-2021 but we or our representative no need to attend it.
After that it's been 4 weeks but we still didn't got any update.
Can anyone help us with their knowledge how long we have to wait for our hearing date ?
We attached all updated documents with a skeleton arguement and statements. Is there any chances that they might overturn decision before hearing or without hearing?
Please if anyone can share their experience or advise will be appreciated. Thank you

[Zerubbabel]

Earlier we received an email saying that there will be pre hearing of our appeal on Feb-11-2021 but we or our representative no need to attend it.

Can you respond to that email and ask for a status of your case?

[Muhammad jabbar 1993]

Earlier we received an email saying that there will be pre hearing of our appeal on Feb-11-2021 but we or our representative no need to attend it.

Can you respond to that email and ask for a status of your case?

Hi zerubbabel
Thanks for your reply...
Yes we called them they said documents are still with judge and they don't have any update yet.
It's taking forever, applied in march 2020, got decision in july 2020, appeal was submitted in August 2020. Been one year now

[Zerubbabel]

Hi, sorry for that mate Everything seems to take ages these days.

Tell me again please, I am unsure, is there a solicitor involved with you or are you working alone on this one?

[Muhammad jabbar 1993]

Hi, sorry for that mate Everything seems to take ages these days.

Tell me again please, I am unsure, is there a solicitor involved with you or are you working alone on this one?

Yes we have one senior supreme court lawyer and a barrister.

[vinny]

Earlier we received an email saying that there will be pre hearing of our appeal on Feb-11-2021 but we or our representative no need to attend it.
After that it's been 4 weeks but we still didn't got any update.

Did anyone from your side attend this pre-hearing?

[vinny]

I lived with my wife and kids for 7 weeks only

That's the issue. You wouldn't be able to build an exceptional circumstances case based on 7 weeks of cohabitation.

You are welcome if you want to explore an other idea.

Agree.

[Muhammad jabbar 1993]

Earlier we received an email saying that there will be pre hearing of our appeal on Feb-11-2021 but we or our representative no need to attend it.
After that it's been 4 weeks but we still didn't got any update.

Did anyone from your side attend this pre-hearing?

No we didn't as they said we don't have to attend. And we didn't knew a lot about it

[Zerubbabel]

If you are paying a barrister or a solicitor, get them to chase for you. It's their job and they know who to contact to enquire.

[Muhammad jabbar 1993]

If you are paying a barrister or a solicitor, get them to chase for you. It's their job and they know who to contact to enquire.

Al hamdulillah finally The Respondent withdrawal the appeal and granted visa. We are so happy after a very long time finally we got good news.
Thank you to everyone for their suggestions and help.
My best wishes for all those who still fighting.

Kindly can anyone tell us how long it takes after a withdrawal and what will be the procedure. Thank you

[Muhammad jabbar 1993]

[quote=Zerubbabel post_id=1943882

Agree.

Al hamdulillah finally The Respondent withdrawal the appeal and granted visa. We are so happy after a very long time finally we got good news.
Thank you to everyone for their suggestions and help.
My best wishes for all those who still fighting.

Kindly can anyone tell us how long it takes after a withdrawal and what will be the procedure. Thank you

[Muhammad jabbar 1993]

Please can anyone advise about our previous post as we still waiting and didn't heard anything from HO.

[AmazonianX]

Please can anyone advise about our previous post as we still waiting and didn't heard anything from HO.

It takes a while to hear from HO requesting for applicant to submit passport.