FLR(M) rejection because of overstay

[ginoT]

I like the idea of damages!! I'll get working on the list

I didn't know about the 14days thing - if I had I'd have given them 14 days and not one day more for a response. In the end we'll have given them almost 2 months by next week. argghh

I've a good/bad feeling they will issue the visa by next week (middle of). Good because my Mrs will have her visa, but bad coz I fancied a showdown at the High Court.

If the visa does come through it will be good for one more reason – I’ll be able to post more of my solicitors correspondence so anyone else applying as an overstayer will have some kind of template to challenge the HO on

Will keep you guys posted on any developments, promise!

[bototo]

You overestimate the HO's common sense. Prevention is better than cure in the real world, not for the HO. They'll let it slip into JR and if you win damages they won't pay. You'll have to chase and chase and chase but don't be too sure of getting the money.

[ginoT]

mini update - still nothing from the HO!! Would like to elaborate on some ideas I've got but just had the craziest thought

Seriously, d'ya reckon the HO monitors this website? I don't want them knowing my strategy in dealing with them or picking up counter arguments that will be useful in the JR. Or am I going insane?

[ginoT]

looks like I had some serious paranoia earlier on..

anyway, finally got the response from the HO. Solicitor didn't want to proceed if possible without their answer as it could help in preparing the docs for the JR. Yup, you've guess it - the HO are sticking to their guns and produced another generic reply. Hardly anything written in reference to points our solicitor raised. So JR here we come!!

[ginoT]

Finally a proper update! The Home Office’s solicitors (aka, Treasury solicitors) have replied to my lawyer’s submission for a JR with

“I advise that [the Home Office] is prepared to consider the merits of your client’s application for leave to remain .. on the basis that the judicial review application is withdrawn and that costs lie where they fall.

My client maintains that his decision to refuse the above mentioned application was correct at law, but for practical reasons is now willing to consider the merits of the application.â€

[ginoT]

so let me get this straight - no one reading this has any knowledge of the JR process, how the HO can try to settle out of court and whether it's worth pursuing costs or not, what the timelines are, etc etc...

surely I'm not the first to document this experience on this site?

[Wanderer]

so let me get this straight - no one reading this has any knowledge of the JR process, how the HO can try to settle out of court and whether it's worth pursuing costs or not, what the timelines are, etc etc...

surely I'm not the first to document this experience on this site?

I think we'd all have sent the missus home, if it was us, binged on Stella, Monster Munch, Feast, Pringles and Pot Noodles for a bit and pretended we'd missed her when she got back!

All for less than £1500!

[ginoT]

I hear you Wanderer! but I had a hysterical Russian who thinks the British consulate in Moscow has a death wish against her.

But now that that the end is in sight with the HO diplomatically phrasing a backdown, and in order to save a bit of time, she wants me to forfeit my £1500 of fees (note, Russians expect their western hubbies to be big spenders...)

I'm wondering

1 - how long will it take for the Judge to determine costs at this point (ie the point at which the HO solicitors have to submit their case, which they've done by saying no contest except on fees)
2 - if we pass up the option of pursuing fees, how quickly will the HO take to issue the goddam visa?

I personally can't believe my missus is passing up the satisfaction in getting the HO to PAY US money..

[crestwater]

ginoT

I like your fighting spirit and your optimism. This is the type of tthing that should happen to HO for the merciless behaviour of the case workers.
However, my advice to you is to take the offer of getting your Mrs visa.... but do not take just the word of HO lawyer for it make sure you get something documented before your withdraw your JR.
£1500 is nothing compare to the peace of your Mrs!

[Wanderer]

I hear you Wanderer! but I had a hysterical Russian who thinks the British consulate in Moscow has a death wish against her.

But now that that the end is in sight with the HO diplomatically phrasing a backdown, and in order to save a bit of time, she wants me to forfeit my £1500 of fees (note, Russians expect their western hubbies to be big spenders...)

I'm wondering

1 - how long will it take for the Judge to determine costs at this point (ie the point at which the HO solicitors have to submit their case, which they've done by saying no contest except on fees)
2 - if we pass up the option of pursuing fees, how quickly will the HO take to issue the goddam visa?

I personally can't believe my missus is passing up the satisfaction in getting the HO to PAY US money..

My Russian is totally laid-back, and economical too!

Does she make you wash tins before opening them? Two hour showers? Wash potatoes before and after peeling?

[ginoT]

you got lucky on the economical bit. Yes, on the tins & potatoes.. but you missed something!!

you have to wash all your veg using the HOT tap! including tomatoes, mushrooms, and even salad!! (the theory is that warm water kills more of the nasty bacteria you get on the veg).

I've tried to explain that the warm water sitting in hot water tank probably has more bacteria growing in it than on the veg itself but to no avail. Yes, our salads turn out very soggy

crestwater - good advice: thanks

[Wanderer]

you got lucky on the economical bit. Yes, on the tins & potatoes.. but you missed something!!

you have to wash all your veg using the HOT tap! including tomatoes, mushrooms, and even salad!! (the theory is that warm water kills more of the nasty bacteria you get on the veg).

I've tried to explain that the warm water sitting in hot water tank probably has more bacteria growing in it than on the veg itself but to no avail. Yes, our salads turn out very soggy

crestwater - good advice: thanks

One good thing tho - Russians consider beer as pop, u can have loads and even get the kids to buy it you (in Russia not here unfortunately).

[alexsh1]

ginoT, any updates on your case please?

[ginoT]

sorry for not providing an update. have been super busy at work + progress on the visa situation has been slow, BUT not for the reasons you all think! Once this nightmare is over I will write up a post on Judicial Review for dummies. It is possible to do a JR within (I reckon) 6months but you need to know how (which I do obviously now). So stay tuned - JR should be used by a lot more people than it is.

Ok, my update: I changed solicitors. Chancer CS (Forester's solicitors) were initially helpful in being virtually the only solicitors I contacted who genuinely understood the law. But they are lazy in that their game is simple: submit JR docs and wait for either the HO to grant the visa, or for the claimant to withdraw from the process (including costs) in exchange for a fresh assessment on the case's "merits", OR for the JR to just eventually happen (as was the case with Forester). I wasn't happy with any of these options as it became clear to me we had other avenues to pursue, but which would have required additional work from the solicitors. They gave me a fixed fee so I reckon they just do the bare minimum. One of their assistants slipped up and admitted that they rarely pursue costs (most likely because of the extra work involved for which they won't be reimbursed - you pay fixed with them and they already have their money). The difference (in process) between me and Forester has been that the HO didn't try and negotiate with them - but they did with me and that has let things drag on massively. But it needn't , so again stay tuned for what will hopefully become a sticky!

I've now gone for "Johns & Saggar" in kentish town - a much slicker outfit but way more expensive (Chancery were super cheap).

Summary of events as follows:

- Chancery CS submit docs for JR
- HO is supposed to submit their case OR apply for an extension (aka "acknowledgement of service)
- they did neither of the above by getting me to agree to a pause in the process while they tried to negotiate with me.
- they requested 3 weeks and I accepted (foolishly) on the advice of my solicitor. I should have given them just a week.
- nothing came out of the process and they requested another 3 weeks! I didn't accept this time and wanted my solicitors to apply for something called a "Default Judgement" (a summary judgement by a judge based purely on the docs submitted - ie mine!).
- Chancery didn't know anything about this and advised me to simply accept the further 3 week delay
(note, during much of this time my solicitor had left the country for several weeks and was not contactable and his colleagues weren't prepared to advise me on what to do)
- I change solicitors and the new guys advise the HO & the courts that they are replacing Chancery
- J&S (new solicitors) have informed the HO that they are in breach of the court rules (by not submitting their acknowledgement of service) but this time offer something interesting for the HO to consider: we withdraw from the JR on the condition any fresh review on its merits will grant us a right of appeal (which isn't normally the case as the previous visa expired) or review our application and allow the JR process to continue. We don't drop costs with either option
- the HO accept the latter idea but with the issue of costs revisited later.
- we have provisionally accepted but now my solicitor wants to lodge a separate article 8 (human rights) appeal with the AIT. He says the JR is purely focused on process/interpretation/application of the law. So you can do both at the same time. His idea is that by having 2 processes in full flow the HO will realise we're bound to win 1 of them so they might as well grant the visa now before costs spiral out of control.
- note the AIT application will not be applicable for costs so we lose the cost he'll charge me for that, but thinks it'll be worthwhile in boosting our position strategically and will do it for a few hundred quid.

So there's the update! My advice to anyone in a strong position (ie where it is clear the HO are simply unreasonable and overly bureaucratic) then apply for the JR BUT never ever give them huge amounts of flexibility in the process else it will likely drag on for ages. If the HO requests 3 weeks negotiating time, give them 1 or max 2. If nothing comes out of that process, then don't give me them further time and simply invoke your rights to a default judgement if no acknowledgement of service has been lodged.

[ginoT]

Ok, I got a bit confused last time I wrote the above post, but finally what happened was that my solicitors (J&S) proposed to the HO that they review the case a 3rd time, and if the visa was granted we would cancel the JR. The additional “representationsâ€

[ginoT]

anybody out there?!! we've got a visa!! champagne on me!

however, she was given discretionary leave despite applying for a spouse visa - we feel cheated as it still means she has to return back to Moscow to re-apply/or apply FLR(M) again from here. Stay of execution only. At the mo we're minded to proceed with the JR.

Now, I’m assuming the DL was given because we raised some article 8 claims which it covers, but intuitively it seems wrong – you can’t have a situation where people are given different visas to what they originally requested, right?

[vinny]

See also Spouse Visa Vs Discretionary Leave Urgent help plz!!!!!!!!!

[bototo]

Congratulations.

They give different visas all the time. When we contested their refusal of my mother's 10 year visitor visa application and demonstrated we were willing and capable of going the whole hog they relented and agreed to give her a visa if we dropped action. It was too late, the case had already gone to AIT with separate JR on the cards and we won the AIT, the judge said they had no reason to refuse her the visa that she had applied for i.e. the 10 year visitors'.

The HC in India took her passport, dragged their heels issuing the visa and sent it back to her a month later with a one year visa. It was when we started further action that they agreed to renew her visa at no cost on the expiry of the first year. Still not ideal... but they can be right b*starts sometimes.

[ginoT]

I iz bak! Sorry for having abandoned you all for so long. I've been missed, right?

@Vinny - thanks for the post, will delve into it more.

Ok, mini update. First off, JRs can have turnarounds of under a year. They can also, as in my case last years. I've already lost track how long we've been going through it all.

So, since I left y'all, a judge finally saw our JR docs and rejected the request for a hearing (judges have to vet all applications before they go through). He came up with some BS reason saying that if we wanted to get married and the visa was running out, we should have just submitted a fresh student visa application. Bit of a problem when you don't want to be a student, but I guess lying to the home office was an option we just didn't think of! Thanks judge, will consider lying next time..

Anyway, that's not the end of it. We can impose a request for what's called an "aural hearing". Basically, your barrister at this point has to convince the judge that the case has some merit and should go to "full hearing". Extra delay, extra cost.

Solicitor has asked me, "are you sure you really want to go through with this? it's gonna be massively expensive!". I've replied "yes". I have some cash, not a lot, but feel for some bizarre reason I have to go through the whole thing.

Hotshot barrister seems to be giving me the cold shoulder recently. Bit of a concern as (a) makes me wonder, does he think I might lose? , and (b) I have to insist he stays on the case and I won't get reimbursed for swapping my team every 5mins.

So, aural hearing is in mid March. Update to follow..

[vinny]

See also Doing the right thing?

[mochyn]

I iz bak! Sorry for having abandoned you all for so long. I've been missed, right?

@Vinny - thanks for the post, will delve into it more.

Ok, mini update. First off, JRs can have turnarounds of under a year. They can also, as in my case last years. I've already lost track how long we've been going through it all.

So, since I left y'all, a judge finally saw our JR docs and rejected the request for a hearing (judges have to vet all applications before they go through). He came up with some BS reason saying that if we wanted to get married and the visa was running out, we should have just submitted a fresh student visa application. Bit of a problem when you don't want to be a student, but I guess lying to the home office was an option we just didn't think of! Thanks judge, will consider lying next time..

Anyway, that's not the end of it. We can impose a request for what's called an "aural hearing". Basically, your barrister at this point has to convince the judge that the case has some merit and should go to "full hearing". Extra delay, extra cost.

Solicitor has asked me, "are you sure you really want to go through with this? it's gonna be massively expensive!". I've replied "yes". I have some cash, not a lot, but feel for some bizarre reason I have to go through the whole thing.

Hotshot barrister seems to be giving me the cold shoulder recently. Bit of a concern as (a) makes me wonder, does he think I might lose? , and (b) I have to insist he stays on the case and I won't get reimbursed for swapping my team every 5mins.

So, aural hearing is in mid March. Update to follow..

Is there any update yet?

[ginoT]

Yes I have an update. Not the greatest one. Sorry, have been meaning to come back to you all.

We’ve dropped the JR. We saw our barristers and long story short by allowing the HO to grant my wife LTR (remember we let them re-review her case while waiting for the JR) we lost the biggest stick we had against them. Barrister’s view was:

- Our case had become a mute point as we were challenging the HO for the rejection which they later overturned.
- Also challenging the COA was irrelevant as we weren’t actually stopped from marrying. We married fine.
- Worse, because we gave no pre-requisite conditions to the HO when they reassessed their decision while waiting for the JR (eg we could have requested they must pay costs if they change their minds and grant her LTR) we lost any recourse to pursue them for the expense we’ve incurred (too much time has passed since they granted her the discretionary leave visa).
- The only thing we can do now is request a refund for the COA and if rejected go to a small claims court (which I am going to do)

I’m extremely upset with the solicitors for not foreseeing this situation arising (ie we were arguably unwise to allow the HO to review their decision without conditions). Admittedly, ensuring no strings were attached to the re-review helped things move forward quickly and easily, but I’ve spent a ton of money which I’ll never see come back. I’m also upset I didn’t meet with my barrister earlier as that one meeting changed everything. Solicitors seem to do lots of ground work, but in terms of being able to advise tactically on what options are open to you and what the outcomes could be, from my experience, you need to go to a top barrister.

If of interest, I’ll happily write a summary of what it is like going through the JR, what to look out for, and what suggestions I’ve got. Most of that info is contained within this thread, but it might be more easily accessible if I just write it all out in one long post.

Let me know if of interest

In terms of what happens now with my wife’s visa, she’ll extend her DL next year, wait 3 more years and then she’ll apply for indefinite leave to remain. Especially with changes to spouse visa rules, English test exams etc.. (which she’d easily pass if she bothers), I think just going with the flow now is the easiest thing to do. Any suggestions welcome.

Thanks for all your support and help. This is an amazing forum, providing so much invaluable help to people who, sometimes, are going through one of the most difficult times in their lives. Big massive thank you

[elv15]

Out of intrest, which Barrister did you use?

[ginoT]

We were with Matrix Chambers and used Raza Hussain and Samantha Knights. The meeting I mentioned was with Samantha - she was fantastic

[chari.dis5]

Please Please need some advice,

Me and my wife applied for tier 1 entrepreneur visa and got refused on 23rd may 2013. We applied for judicial review and home office agreed to reconsider. Meanwhile I have completed 10 years long residency and applied for Ilr and flr(M) for my wife. I got my settlement and she got refused. The reason is she is overstayed. when I check Judicial review docs, they mention only my name. Therefore my question is " Can she be overstayed since her name is not on the Judicial review? Please help.