Advice please on applying spouse visa previous 'deception'

[pbaff32]

Hi all

Would appreciate advice

I am currently applying for a spouse visa for my wife. It is complicated enough as it is due to the fact she was removed from the UK for overstaying her student visa by 26 days.

She was in the UK for 2 years (we weren't in a relationship at the time) on a student visa. Her first visa was totally valid and she attended the lessons. However she didn't get the 85% attendance requirement (more like 75%) and wanted to change schools with lower numbers of students per class and was introduced to a Thai woman (my wife is Thai) who said she would sort out a new college for her to attend and help her complete her visa extension form. She paid money and received an attendance certificate and course completion certificate from a different college. This was submitted to the Home Office and a student visa extension was granted.

However when she turned up at the school to attend classes and complete enrolment they said they had no record of her and that she would need to pay £3k to study there. Furthermore this Thai contact had disappeared. She then tried on several occasions to go to the college and resolve, eventually speaking with the manager but was always told the same thing - further more the person who had signed her attendance and course certificate they had no record of as the college had undergone completely new management.
She was afraid of taking this further and reporting it in case it want she was removed from the UK (she was living with a British partner at the time).

Here's the thing - obviously my wife knew that she hadn't attended that college and undertaken the course, but she had done so at her previous college. She also was fully intending to study at the new college and can prove she studied at the previous college if required. So clearly she was aware that the documents submitted for the visa approval weren't entirely accurate but just assumed they transferred credits from her previous college to the new one. So that's her fault anyway but it was genuinely meant as an intention to continue study and she had studied the previous year anyway. That being said she was advised by this woman that this was the best way of doing it and that 90% of thai students in the UK went down this route. This all happened in 2009 BTW and at the time her visa was approved.

Moving on to the spouse visa application, we have absolutely no intention of hiding any of this if asked. If we get refused on that basis so be it, we understand that is a possibility and may need to go to appeal, especially combined with the overstay. C'est la vie.

However what is scaring us both is that there have been articles recently in the press about foreign nationals being prosecuted for submitting fraudulent documents in UK visa applications (although these seem to be more related to identity). She is worried that if at interview or otherwise the college certificates were uncovered as dodgy she could be retrospectively prosecuted, even though she did it with best intentions of continuing her studies, but having been provided bad advice about how straightforward this route would be (as indeed it turned out to be as the extension was granted).

We are using an immigration advisor to help with the case and in the enclosures part of the application pack he has put together he has stated 'proof of previous study in the UK' for my wife to insert (he is aware of the above situation). From my end I am going against him on this as I am totally unwilling to insert anything in a spouse visa application that isn't entirely above board (i.e. the course attendance certificate for a course she never attended!) and would rather not insert this and then if asked by the ECO to disclose fully the above story and hope they apply discretion. We could get attendance records from the college she did attend if required by the ECO, although these weren't submitted for her student visa renewal (just in case they check) as she was advised to submit the ones for the other college which she never attended! But she could provide proof of attendance at the proper college if so required so they could see that she had indeed been studying in the UK and not using bogus student visa documents to work illegally etc.

Is there is any chance they might retrospectively decide to prosecute her - even though there were mitigating circumstances regarding her receiving bad advice and speaking limited english, we would be reticent to apply at all. Obviously there will be absolutely nothing even remotely questionable in the spouse visa application and she is prepared to disclose absolutely everything to the ECO if so requested, whatever the result.

What are your thoughts - is it highly unlikely they might decide to retrospectively prosecute her (even though the visa was granted anyway) and in the immigration rules it says that deception carries a 10 year ban from the UK unless applying under family settlement. Any advice based on better understanding than I currently have would be much appreciated.