Refused as a Fiancé -- Do I Get Married and Re-Apply?

[wint_88]

Hello,

I'm a USA citizen who has been living in Hong Kong for the past two years while dating my now fiancée, who is in the UK.

Here's the situation in which we find ourselves:

-Planning to move to the UK in early 2011, I hired a UK immigration firm to assist me in preparing a visa application.

-On recommendation from Counsel, I applied under the Tier 4 Dependant category as the fiancee of a student (my fiancée is doing her PHD through end 2012 at Cambridge)

-I prepared an extensive application, including several hundred pages of relationship proof. The application was submitted in late October to the UK Embassy in Hong Kong

-The application was evaluated in Manila by an outsourcing firm hired by the UK govt (http://www.vfs-uk-ph.com/)

-The application was rejected on the grounds that I had not "been living together in a relationship similar to marriage or civil partnership for a period of at least two years." It was known that I did not meet this requirement, but my UK counsel assured me that, provided sufficient relationship proof, the visa official would exercise discretion and grant the visa.

-I spoke with counsel, and they recommended that I appeal the decision. However, the appeal process takes 4-5 months and would require an additional 2500 GBP in legal fees. Counsel feels that the facts of the case are extremely strong, and we are almost certain to win on appeal. During the appeal process, I would not be able to live in the UK and may even be rejected from a visit due to being in the midst appeal process (immigration may feel I'm trying to circumvent the decision).

-I would like to be in the UK starting in January, as I have a job offer that requires me to be present in the country in the early part of the year.

-A separate option would be to have a civil ceremony as soon as possible, which would likely be in Hawaii in early December. My fiancée and I are comfortable getting married earlier and then having the full ceremony as originally planned (early 2012).

Our only concern would be applying for a spouse visa after having been rejected a non-spouse visa, and the marriage appearing to be in service of getting the visa. This is partially true: we'd be moving the date up in order to get the visa, but we had been planning to get married anyway and have abundant proof of a long and loving relationship. We've also been engaged for a year now, and have proof of both the engagement and several subsequent parties.

What would you do?

Thanks for your thoughts,

-Wint

[wf]

-I prepared an extensive application, including several hundred pages of relationship proof.

Far in excess of what is required, if you meet the requirements for the visa (which you do not).

-The application was rejected on the grounds that I had not "been living together in a relationship similar to marriage or civil partnership for a period of at least two years."

That is the most crucial element of gaining a dependant/unmarried partner visa.

It was known that I did not meet this requirement, but my UK counsel assured me that, provided sufficient relationship proof, the visa official would exercise discretion and grant the visa.

You have been ill advised.

-I spoke with counsel, and they recommended that I appeal the decision. However, the appeal process takes 4-5 months and would require an additional 2500 GBP in legal fees. Counsel feels that the facts of the case are extremely strong, and we are almost certain to win on appeal. During the appeal process, I would not be able to live in the UK and may even be rejected from a visit due to being in the midst appeal process (immigration may feel I'm trying to circumvent the decision).

Stop throwing money at them, it seems unlikely you would win an appeal as you have been declined within the rules.

-I would like to be in the UK starting in January, as I have a job offer that requires me to be present in the country in the early part of the year.

-A separate option would be to have a civil ceremony as soon as possible, which would likely be in Hawaii in early December. My fiancée and I are comfortable getting married earlier and then having the full ceremony as originally planned (early 2012).

Sounds like your best option, unless you qualify under some other route (ie: Tier 1), or is the company who have given you the job offer able to sponsor you?

Our only concern would be applying for a spouse visa after having been rejected a non-spouse visa, and the marriage appearing to be in service of getting the visa. This is partially true: we'd be moving the date up in order to get the visa, but we had been planning to get married anyway and have abundant proof of a long and loving relationship. We've also been engaged for a year now, and have proof of both the engagement and several subsequent parties.

I don't think this should be much of an issue and would be worth pursuing if you can't get Tier 1 (or potentially Tier 2).

[avjones]

Counsel feels that the facts of the case are extremely strong, and we are almost certain to win on appeal.

Counsel? Really? It's very rare for counsel to prepare this type of application, far more likely to be an immigration consultant or perhaps solicitor.

£2.5k sounds very high indeed for a simple appeal, and I don't share your adviser's confidence that you will win, anyway.

In fact, the opposite, I think you're bound to fail in the application. The relevant rule states:




319C. Requirements for entry clearance or leave to remain



(c) An applicant who is the unmarried or same-sex partner of a Relevant Points Based System Migrant must also meet the following requirements:


(iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least 2 years.

It's a requirement of the rules. It's therefore extremely unlikely that an entry clearance officer would grant it, and almost impossible the tribunal would.

When do you hit the 2 year mark?

[Casa]

I agree with Wf and Amanda.

[geriatrix]

If appealing, (seriously) consider no win no fees arrangement with the counsel.


regards

[Casa]

I think it would be a safe bet what the 'counsel's' response would be!

[avjones]

If appealing, (seriously) consider no win no fees arrangement with the counsel.


regards

I'm not sure conditional fee agreements are allowed in this area of law, though?

[wint_88]

Wow, thank you so much for your thoughts!

My finacee just visited Hong Kong for the weekend, and we decided to have a civil ceremony in December.

We spoke with several other lawyers (at no fee, thankfully) regarding the potential problem of applying for a spouse visa so soon after getting rejected for a dependent visa.

They said that it may raise some red flags, but if they see abundant relationship proof (which we have, being engaged for over a year and dating for much longer than that), we should be solid.

I guess the Manila box-checkers go both ways. They didn't exercise discretion in my last appeal, and they're unlikely to exercise discretion in this situation either. (i.e. reject me even though I have a valid marriage certificate since I applied so soon after....)

I'll post the results of my attempt. Either way, I'll be married to a fantastic woman!

Thanks again.

[avjones]

Best of luck!