appeal for unmarried partner visa

[kmk]

Hi everyone I have just found this site!!!!

I am having trouble myself about the visa status so I thought of asking you guys for an advice....

I have applied for unmarried partner visa in Oct 2003. I am Japanese and my partner is English. I went back home to apply for visa in Japan but our application was refused and we are currently waiting for an appeal.

The reason why they refused was that we did not satisfied the rules for living together in a relationship akin to marriage which has subsisted for two years or more.

Our application stated that we started relationship akin to marriage in May 2002 but as we did not start to live together untill June 2003, they refused our application.

Before we apply, we knew that our case did not meet their rule of two years living together but our solicitor adviced to go ahead with the application as we have met all other rules they required.

We both are financially secure and he owns two bed room flat and so on..
More importantly we have reason that we could not get married legally in UK as I am going through divorce process.

I was married to my ex-husband but did not apply for visa while I was married as I was studying at University and had valid student visa.

My case was send to Home Office in UK and now waiting for appeal for 6months. I applied for a visitors visa to come and join my partner so I have been in UK since Dec 2003. I have to go back to Japan at the end of May as my 6months visitors visa will run out. I did not expected that this appeal will take this long so I am now so confused and stressed.

As I was on visitors visa, I did not work at all in UK but now as I need to start to earn some money I have no choice but to return home.

This is very flustrating for both of us as we have done everything right but we are still not getting any way to be together in this country.

Does anyone know how long this appeal might take or any suggestion?

Can I apply again when I get back to Japan for another visitors visa?

It seems to be everything is turn against me at the moment.

Any suggestion or comment will cheer me up....
Thank you in advance for your help.

[tdabash]

Hello there,

I am sorry to hear about the difficulties you and your partner are facing.

Does anyone know how long this appeal might take......?

Your appeal may take approximately 12 months or more to be heard.

Please refer to immigration rule 295 http://www.ind.homeoffice.gov.uk/defaul ... ageId=3204

‘…..and the parties have been living together in a relationship akin to marriage which has subsisted for two years or more’ Your relation did not complete the two years required by the law at the time of your application.

The other issue here would be ‘any previous marriage (or similar relationship) by either partner has permanently broken down’ It appears from your post that you was married but it is not clear whether your current situation would satisfy this rule.

Can I apply again when I get back to Japan for another visitors visa?

Yes, but you can extend your leave as a visitor from Home Office.

........ or any suggestion?

Suggestions

1-Before the end of May you may apply to HO in order to extend your visitor visa. This will give you time for free movement. At the end of May, if you have completed the two years required by the law. You can then reapply for a fresh settlement visa in Japan. Please refer to my message to anastacia in this bord for dome tips.

2- You may wish to proceed in your divorce; get married to your partner in the UK then apply for a spouse visa in Japan.

Good luck

[kmk]

Thank you for your advice!!

I am still not sure about couple of things.
Firstly, do you think we will have a chance of getting this unmarried partner visa if I apply again freshly in Japan?
One thing which is in my head is about rules of "two years living together". As we have been in marriage like relationship for two years in this May, we have not lived together for two years yet so as for this reason they might refuse my application again.....

I have waited here in Uk for 6months but my solicitor seems to be so confidence that at the end of this appeal ,which we do not know how long it will take,we will get it.
My solicitor who works for my friend's solicitor office seems to be very confidence but I just wonder whether I should consult someone else.

I am desparate to start my life here with my partner but as this situation carry on I have no choice but to return and wait for appeal to settle in back home.....

any other way that I can come back here apart from visitor?

If there is any chance of my application to be successful this time then I will think of dropping my appeal case and apply fresh in Japan at the end of May.

Thank you for your kind help.

[tdabash]

Hello there,

PLEASE SEE YOUR pm. Thank you.

In conclusion: the fate of your appeal (as you describe in this board) is unpredictable.

You do not need to go to Japan for another visitor visa as you can extend your stay here form HO for further 6 months.

If you established the rules or submitted evidence to prove that you have estbished them, you can obtain your settlement visa and win any appeal if necessary.

Please review the rules http://www.ind.homeoffice.gov.uk/defaul ... ageId=3204

Best of luck.

[kmk]

Thanks for your help.

I have spoken to my solicitor about extension of visitors visa and re-applying for settlement in Japan freshly in May.

He said that I do not need to apply for a visitors visa as I do not need as a Japanese national. But I thought I need that as I am appealing against my case so.... I am so confused.

Another thing he suggest was that I still have right to remain in this country as EU citizin's wife, as my divorce with my ex-husband who is Italian hasn't been settled yet at this point.

What he suggested was that he will wirte to HO about this and see how it goes but to be honest I am so confused now and don't know what to do.

Can anyone explain to me? Or do you think I can stay here as a resident within few months without waiting for this appeal to settle?

Sorry for confusing everyone but I am more confused now....

Any help will be appriciated....

[Kayalami]

Knowing the following will help me assist you

1. Date you arrived in the UK.
2. What your status was when you arrived in the U.K.
3. Whether or not you entered the U.K. with your Italian husband
4. What was your husband doing if you came with him i.e. working or not + whether claiming any state benefits.
5. Where your Italian husband is currently i.e. in or out of UK
6. Where is the divorce being conducted.
7. The date you started studying and the validity of the student visa i.e. start date and end date.
8. What your visa status in the UK is now.

Do not feel obligated to answer any of the above if you don't wish to - it just makes it easier to frame a fuller answer and provide more options.

[tdabash]

Hello there,

Please see your pm

I suggest you write to Kayalami pm if you feel you do not want to mention any information here. I am sure kaya is able fo help you.

In conclusion
1. Please concentrate on the divorce issue or separation order.
2. Please extend your visitor visa until HO agrees to change your status.
3. In the circumstances, a fresh application will be normally refused.
4. Please establish the requirements of the law

GOOD LUCK

[Kayalami]

kmk,

I have decided to pre-empt you as my line of questioning in similar circumstances appears to lead to a 'fear of responding'.

The unamrried partner application

1. Your application stated that your relationship akin to marriage with a British Citizen commenced in May 2002 - is this a fact?

2. Your application states you started living together in June 2003 - is this a fact?

3. You made an unmarried partner application in October 2003 despite being aware that you failed to meet the requirements of the rules which only takes into account time living together.

4. Even if the Home Office accepted the relationship as comencing in May 2002 you would still fail to meet the 2 year requirement when applying in October 2003. You would have needed to wait until May 2004.

5. IMHO the appeal process is a waste of time - it will probably take a year to be listed before the appellate authorities. Further it will get dismissed because it is not on a point of law e.g. where the Home Secretary made an error not in accordance with the immigration rules. There are also no compelling circumstances or obvious grounds for invoking the Human Rights Act.

6. The maximum time you can spend on a visitors visa in the UK is 6 months. The HO have the power to extend it to 12 mths but only on the most compassionate of grounds e.g. a family member falls terminally ill and you are the only one able to look after them. You are unlikley to meet this criteria so as to sit out the waiting period to an appeal.

7. You can exit the UK say to France for a day and return to the UK to seek a fresh 6 mths visa - you may get lucky. However the Immigration Officer will consider the amount of time you have spent in the UK by reference to your passport stamps and questioning to which you must answer truthfully. The IO may refuse entry if in his opinion you are not a bona fide visitor who will leave the UK - your time as a student doesn't help as it increases the chances that you have developed ties to the UK. Do also expect queries about your finances.

EU dimension

1. You say your husband is Italian - if you came with him to the UK and he wa in employment it may be deemed that you are the dependent of an EU national exercising treaty rights in the UK. The possession of an EU Family Permit would be prima facie (factual) evidence of your EU spouse rights.

2. The above holds true irrespective of an impending divorce as per various case law e.g. Baumbast before the European Court of Justice. In this case the court ruled that the dependents of an EU national could continue to live in the UK despite him no longer being here.

3. Once the divorce occurs you are no longer considered under the EU laws and fall into the remit of the immigration rules.

4. The position is different if you never applied for an EEA Family permit - the fact that you needed a visitors visa indicates you never did apply for one.

5. In any case applying for the EEA Family permit requires the EU national to support the application and submit their national identity card/ passport and proof of economic activity. The HO is aware of your impending divorce/ that you are no longer with your Italian husband so an application here would be refused on the grounds that it was entered into to evade immigration controls.

Summary

1. Forget the appeal but don't withdraw it.

2. Review applying for another student visa or depending on your skills/ qualifications the HSMP or Work Permit Schemes.

3. Point above is moot if EU spouse situation is clarified as you can work.

4. Apply for UP visa in June 2005 or a spouse visa before then if your divorce is finalised - I am completly lost as to whether this has happened or not.

5. Get a new lawyer as the one you have (if its the one for the initial UP application) is giving you bad advice and appears to be in it for the money.

Hope things work out for you.

[kmk]

Thanks everyone for replying my post.

I will start from answering Kayalami's question in order.

1. I arrived in UK on 1997 Apr for a first time but as a visitor and after I
have switched my visa to student visa as I started to go to Language
school.

2. Visitor to student

3. I have met my husband after I started school so I did not enter to UK
with him.

4. He was working and studying part time when I met him. He have
never claimed any benefit

5. He is in UK

6. Divorce procceding started in Sep 2003 and are in final stages at this
time. in UK

7. As have renewed my passport in between I am not sure when was
exact starting date but somewhere between 1998 to 1999 and this first
student visa valid till Oct 2000. and this was extended twice once till
Oct 2002 and second time till Oct 2003 which was the last date of my
student visa.

8. I have visitor's visa valid till 1/6/04. I applied this in Japan last Nov
when my UPvisa was refused.

I have never applied for EEA family permit.

One more question here. Could I apply for student visa at the same time as waiting for appeal? without withdraw my appeal?

It will be ideal if I have a possibilities of Work Permit but I have no company willing to do it for me.... They are too frighten about the cost and effort they have to go through......

I hope this information will help you to get more clear picture.

I do not feel obligated to answer!! More than any thing, I am so greatful that you are willing to answer my question and taking your time to do
that.

Thank you in advance again.

[tdabash]

Hello there,

Thank you for the information. The picture is now clear

As I told you in my pm, do not ever be an overstayer, otherwise you will have complications in the future.

As I indicated clearly in my private message to you, If I am the adjudicator, I would dismiss your appeal because you did not establish the requirements (i) & (ii) of Rule 295

Again, I echo what kayalami said 'it is not on a point of law e.g. where the Home Secretary made an error not in accordance with the immigration rules. There are also no compelling circumstances or obvious grounds for invoking the Human Rights Act.'

Hence, I do not think you should relay on your appeal.

In the circumstances, a fresh application for UP will be refused.

As I explained in my pm, your Italian husband (on papers) will not support you in respect of EU dimension. Therefore, this arm is out of question.


You need to make a decision yourself based on the information you obtained from Kayalami and me.
I- change your immigration status to a student. This will give you the advantage of working 20 hours a week. It is extendable
2- Extension of your visitor visa

When you get your decree absolute, you may wish to marry your partner here in the UK, and then apply for a spouse visa under rule 281

If you do not wish to marry, then you may apply for UP visa, only if you have established the requirement.

The strategy of your lawyer might be

Appeal ---> submit new evidence, buying time ---> possibly win
This is however a big gamble.

As I told you, yes he may apply to home office to change your status as a spouse of EU national waiting for the divorce to occur but again this is a gamble as the home office may refuse. You did not apply as dependant under the provision of EU laws before.
Even if the Home office agreed, I eco Kay alami 'Once the divorce occurs you are no longer considered under the EU laws and fall into the remit of the immigration rules.' .

What is he trying to achieve? Giving you legal status until he wins an unpredictable appeal? You can maintain your immigration legal status as mentioned above.
----------------------------------------------------------------
As I said before, concentrate on your divorce. Keep asking your family lawyer, if any. Establish the requirements of the law either Rule 281 or 295 prior to any fresh application. If you apply in the context of the law, your application is very likely to be successful. If an ECO or even HO refuses your application, I can confirm your appeal will be allowed (You will win). Meanwhile maintain your legal immigration status

I must warn you, time is running against you. Your visa will be expired 1.6.04.
If you elected to apply as a student, please submit your application in person. Please do not send by post. If you elected to extend your visitor visa, please do it a little bet earlier and in person. You certainly need your partner's support in these circumstances.

After all, the decision is yours.

Good luck

[kmk]

Thanks very much for your advice.

The information everyone gave me are very helpful.

It seems to be that I have not much choice in order to stay here.
I will go back to Japan at the end of May as my brother is getting married. So I will not over stay in any circumstances.

However, I am not quiet sure whether I can switch my visitor's visa to student in here.

Can I apply to student visa back home? But my appeal is still there.

Another thing that I can't check my PM!! Can you tell me how?

I sometimes think this must be a faith that something is telling me to go home as no way I can be here and start my career.....


Thank you all for your time and effort.

[Chess]

Another thing that I can't check my PM!! Can you tell me how?

Click on the in-box above. usually when you get a pm(personal message). The mesage window pops up as soon as you log in

[tdabash]

Hello there,

I really feel sorry for you because you have not had a fair deal.

When you married your Italian husband you remained in the country as a student. This means that you have genuinely married him. Japanese women are known to be good wives. How are you facing a divorce?

Then you became a partner of another English man who in my opinion should support you in these circumstances.

Please remember there is a justice in the sky.

You can change your immigration status from visitor to Student here in the UK because you are not a visa national.

Yes you can apply for a student visa in Japan. However, I think it would be easier for you to apply while you are here in the UK

In Japan you will need to fill form VAF1 for a student visa. Please see the form.
http://www.fco.gov.uk/Files/kfile/VAF1_2003_Eng,0.pdf
There is a possibility that ECO would refuse your student visa and you will have no right to appeal.

In the UK you will need to fill form FLR (S). Please see the form
http://www.ind.homeoffice.gov.uk/filest ... )Aug03.pdf
You are not asked about other visas.
In answer to question 4 you may say no. if at the time of application you had a row with your partner and left the house but may be later you came back together. It is not expected that you would suspend your life on an unpredictable appeal.


I do not think that application for a student visa would affect your appeal. Are you still relying on it?

My Final advice: Please fight your Battle here in the UK.

GOOD LUCK

[kmk]

Thanks for your advice again!!
Sorry for going on about this topic for so long...

It seems to be only way I can stay here and have a life is to apply for a student visa at this moment.

One concern for me is that although I am non visa national, I have applied for a visitor's visa in order to come back here while I am appealing agianst my UP visa so that there is a sealed visitor's visa valid until 01/06/04, but is this not going to be trouble?

My solicitor suggested me that I need a visitor's visa to come back and so I did. He said that from visitor's visa you can't switch to any other visa.

I am not rely on my appeal anyomre so I guess only way forward is this....

Tdabash, did you said that you send me a PM?
I don't have any thing on my box....

After all we did from last Oct seems to be a waste of time and money.
We wanted to be honest and do things right so we didn't go for student visa as my pure purpose is not to study but to be with him but Uk didn't allow me to be.....

I wish I knew this site much earlier........

Many thanks and can't thank you enough.

[tdabash]

Hello there,

Thank you.

I do not know what has happened. I am sure I clicked ‘submit’ to send you a pm. It does not matter now as my previous reply of 25.4.04 repeats the major issues. I still have a copy in my mail box anyway.

It does not make a difference if you have applied for your visitor visa at the British consulate in Japan or you obtained your visa at the airport. Please do not imagine that HO will contact the British consulate in Japan asking in particular about your visitor visa. You are not a threat to the World peace.

The moderators and I are committed to helping people if we can. I am going to write less in the near future because I have my professional commitments. I am not a lawyer by the way, but a professional who have read a lot in the law, had a brutal legal fight with HO and ECO, laid out my strategy to the lawyers and I have won; because my cause is just.

I am glad you came to a decision yourself.

My final advice again: Please fight your Battle here in the UK.
GOOD LUCK