Fiance visa refused, appeal won, but we are now married!

[davidnhouse]

Hi,

My first post, and as I cannot see this subject covered before, I hope someone has an insight to pass on.
Around 12 months ago my fiance applied for a visa. I am a British citizen, and easily meet the financial and accommodation requirements. We have known each other for 7 years, and were living together as partners, in her own country, when she applied. I came out to help her process the documents. She took and passed the English and TB tests. Nevertheless the application was refused, due to a lack of "original" (not downloaded) copies to verify my income and because the UKVI claimed we had not established a "sustained" relationship. We appealed and after a delay of 2 months UKVI reviewed their decision and upheld it. We then waited many months for the wheels to turn, but nothing came back from the Court. As notification of the determination is by post, and it takes up to 3 months for post to arrive where she lives, I telephoned the Court every couple of weeks, but always got the same answer. The case had not yet been scheduled.

Having waited almost a year we decided to employ a consultant to help us, and with their advice decided to get married in her home country and then apply for a spousal visa, on the grounds that would show our commitment. By now I have lots of original financial documentation, which was also sent with the appeal. I returned to her home country in September and we married last Monday, Oct 5th. On the next day I decided, on an off chance, to call the Court and learned that the appeal was heard on Sept 29th and had succeeded. So she was granted a fiance visa before we got married, but is now no longer a fiance. Initial joy turned quickly to puzzlement.

My consultants tell me that the fiance visa is now useless and we will have to submit a new application, with all the inherent risks, and no longer any appeal possibilities. I have read the Gov websites extensively and found this phrase, in the section dealing with post appeal processes, to be most relevant:- "The Home Office will change (‘revise’) its decision if you win your appeal. The Home Office may reconsider your entire application if your circumstances have changed since you first made your appeal."

I think this could result in one of two things. Firstly, that as our status has changed a new spouse visa submission is required. Secondly, that as our status changed after the Court determination they will convert the fiancé to a spousal visa.

If the first happens then I think we simply submit as planned, adding the information about the successful appeal. If the second happens we won’t have to do anything. I would love it to be the second.

Does anyone have a similar experience to relate, or comments to make?

[Casa]

My first thoughts may not prove to be the way forward, but I'll post them for others to step in with guidance if I'm wrong. (Vinny will probably know more on this). If your wife was allowed to enter the UK on her fiancee visa there is a chance that you could then apply to switch to a Spouse visa on form FLR(M), as you would have done if you had married in the UK.
My concerns are:
1. Technically she shouldn't enter on a fiancee visa when she is your wife.
2. The FLR(M) application from within the UK may be tricky as it will be obvious from the marriage certificate that she arrived in the UK after the marriage had taken place.

Please wait for other views.

[vinny]

I think Casa summed the problems quite well.

It would best if you can persuade them to issue a 33 month spouse visa instead. The fees were the same.

[davidnhouse]

Thanks for the replies.

I quite agree that it would be best if we could get a 33 month spousal visa instead of the fiancee. The issue is how best to achieve this. Should we wait for UKVI to react to the Court decision and then, no doubt, check that our circumstances remain unaltered. We would have to admit our marriage at that point, for to try to conceal it would be foolish and could easily result in my wife being refused LTR when she applied after her arrival in the UK, as she would have broken the immigration rules. I do not want to risk such an outcome.

If the UKVI offer to convert the fiancee to a spousal (which seems common sense, but common sense is not a common commodity within the UKVI), then all well and good.

What is unknown is the likelihood of the latter happening. Due to time restrictions I don't want to wait for the several weeks at least that it will take to find out, if the chances are slim to nothing. If we do need to apply again then I want to do it soon. However, as we need to make a connection to the successful fiancee appeal we cannot do it immediately, and must wait until the confirmation letter is in our hands.

[shakoorh]

Could you not do a small wedding ceremony in UK cheaply and then register that as your wedding date?

[vinny]

See also Appeal procedure for Post.

Your marriage probably prevents them from issuing the fiancé entry clearance.

[davidnhouse]

See also Appeal procedure for Post.

Your marriage probably prevents them from issuing the fiancé entry clearance.

Hi Vinny

I agree. I suspect that when UKVI react to the Court's decision they will check whether our circumstances have changed. We could play dumb, as my wife still has her passport in her maiden name, and probably get her into the UK. However, as soon as we need to apply for LTR our marriage certificate would reveal that we married prior to the visa being issued. We could also play dumb and go through a Registry Office ceremony in the UK. I won't though do either, because the risks are too high, even though I also see a possible Human Rights claim being made on MY behalf if she was asked to leave.

Our best hope, I think, is that the UKVI will simply convert the fiance to a spouse in these circumstances. Remember she was still a fiance when the Court gave their ruling. I have written to my MP appraising them of this situation and asking for their intervention and for common sense.

[vinny]

Good luck!

Indeed, why should you delay your wedding due to an incorrect refusal?

Do let us know what happens!

[Casa]

Could you not do a small wedding ceremony in UK cheaply and then register that as your wedding date?

They aren't able to marry in the UK (however simple the ceremony) as under British law they are already considered to be married.

[Obie]

I believe that writing to the post and informing them that their initial flawed decision led to you having to change your initial wedding plans, and you will be minded to claim unreasonable cost of bringing the proceeding , if they don't consider your current position and issue leave , consistent with it.

[davidnhouse]

An update on our situation. We have now received the Immigration Judge's determination. It had me in tears because it was so fair and reasonable. All those who are in a similar situation take heart because if you explain your circumstances well, and have a firm case, the Judge will listen and overturn the refusal. We were awarded our costs and the ECO was given quite a firm smack for having all the information available but failing to recognise or act upon it. It was a joy to read.

However, we still have the problem that Ruby has been granted a fiancee visa and she is now my wife. After 5 attempts I managed to get a message through to UKVI, via their "webform", of the change in her status. Due to the size limits of the form the information I could give was somewhat limited. Via dogged persistence I managed to find another Home Office email address and persuaded someone there to pass on the information, as UKVI direct emails are not available. Their appeals team now has it.

The UKVI post dealing with this emailed to advise they were not challenging the determination and that, subject to further checks, entry would be granted. Via, of course, a fiancee visa! So we have mailed them her passport, our wedding certificate, various copy emails (including one from my MP) and a letter of explanation with the request that the visa to be issued should now be a spouse one. Ruby has the clearance, we were unreasonably forced to delay our wedding, by a mistake identified by the Judge and accepted by UKVI, and have since married so let common sense prevail.

We await developments. They received the letter yesterday.

[davidnhouse]

I am delighted to be able to report that we received the response today from UKVI and that Ruby has been given a 33 month spouse visa, just as we requested.

No letter of explanation, no apology. Just the passport back with the visa inside.

They still managed to chicken it up, because they sent us the standard "we have decided" email an hour after they received the documents last week and nothing gets done in an hour in the UKVI. It takes them that long to open the envelope. It was couriered back to us (we paid) yesterday.

Nevertheless it seems my dogged persistence has paid off and I have managed to get common sense to prevail.

It is worth fighting, with reason and politeness.

[vinny]

Great news!

[Casa]

Congratulations! Enjoy your life together.

[Obie]

I thought the presently issue a month visa and tell applicant to collect BRP once they enter UK , perhaps because you fall under old policy you got the 33 months instead . Well done. Very pleased for you.

[Casa]

I believe you will need to pay the NHS Surcharge of £600 in order to obtain an IHS number...which will give your wife free access to all NHS services. This wouldn't have been payable at the fiance visa stage but is required for spouse settlement.
https://www.gov.uk/healthcare-immigrati ... n/overview

[Obie]

They will be exempted as their application appeared to have been made before 6th April 2015..

If not for the injustice of the wrongful refusal, they may have entered the UK and applied long time before that rules came into effect.

[Casa]

Thanks Obie. I assume this won't be queried by GP/hospital that the visa is issued recently but there is no IHS number?

[davidnhouse]

Thanks for the good wishes. I do feel like a dog with two tails at the moment!

There has been no mention of the NHS surcharge, or the BRP card. In fact nothing other than the passport with the visa inside. No letter of explanation.

We applied in January 2015, so before the change of the rules, and I am assuming the NHS surcharge does not apply. If a surgery, or hospital, challenge it we will explain the situation and the appeal process, as I doubt if they will all be up to speed yet.

I do though wonder about the BRP card. We won't actually be travelling back to the UK until Feb 29th next year, as I had to give myself the time to make a new spouse visa application if it were needed. Does anyone know what Ruby has to do, or will her entry automatically trigger the production of the card? Or does she not get one because she predates those rules?