Spouse visa refused

[stormystar]

Hello

I am a female UK citizen, my husband is from India and was originally here on a student visa. His student visa expired on 31st October 2013. We got married on 9th November 2013 and sent the application for him to remain as my spouse a couple of days after the wedding. We have just received a refusal letter stating the following grounds:-
1. He does not have a degree, english language certificate etc. I admit, this is our fault for missing that. He missed one module of his degree and therefore doesn't have the certificate. He sent transcripts etc to prove he had done all the degree bar that one module and common sense would show that clearly he would meet the language requirement. However, when HO did ask for the degree cert we wrote in our letter that he would be happy to take the English test. He can't now take it as they kept his passport and he needs it for ID for the test.
2. They state that there are no "insurmountable obstacles" in me relocating to India. My main point (which I already informed them of) is my children are 24 and 22. However the 24 yr old is disabled and in receipt of DLA and the 22 yr old has a long history of depression, and they both live with me for those reasons. My home is also rented so if I moved to India they would be rendered homeless. Is that not an insurmountable obstacle?
3. They quote a load of stuff about "Article 8" but seem to have adapted it for their own use! Basically saying that he hasn't been in the UK long enough and hasn't lost all ties in India. What about my Article 8 rights where they are telling me to dump my children and move to India?

The letter ends by saying there's no right of appeal. But then stating if he overstays and doesn't leave, then there "may" be a right of appeal. Which is ridiculous in my view!

Oh and they have given us until 27th January to contact our local "enforcement office" so we're in quite a panic as to what to do.

Sorry, I keep thinking of things and having to add them! I wanted to point out that we fulfilled all the main categories they stated, such as genuine/subsisting relationship, financial requirements etc. So it seems petty and unfair that they are now basing it on things that were never listed in the initial requirements (other than the language thing). If that makes sense? My fear in relation to my husband returning to India and applying from there is that they will never let him back in again or tie us up in so much red tape/waiting for months etc that our relationship ends up failing due to the stress!

What are our options? If there are any of course!
Thank you for reading.
Christine

[MPH80]

You have to read it in a particular way.

The application failed because of the language certificate issue.

As a result - they then considered your application under Article 8.

They then dismissed that as an option because:

a) You can relocate
b) He hasn't established a private life here

So it's a 'step by step' process.

So what do you do?

Easy - ask UKBA for the return of his documents - have him return to India (this will be a condition of the return of documents) get him a language test in India, and re-apply, return as your spouse. Fix the problem with the language certificate and the problem goes away. Providing he has not attempting anything major in terms of immigration crimes (working illegally, claiming benefits when he shouldn't etc) then his application will not be refused providing you meet all the requirements.

From the perspective of your children - you have to consider that for Article 8 to apply - you will almost certainly have to go through the courts to prove that your fully grown adult children are dependant on you specifically and that their lives would be at a significant detriment to have you removed from it. Moving house isn't a huge issue, not being able to wash or dress yourself is (for example).

Article 8 is not a right to have a family life in the location you choose - it's a right to a family life. They will easily say that even if you left your kids to live in India - you can return to visit them. That still counts.

M.

[stormystar]

Thank you very much for your advice. Is there no way at all he can do this in the uk? We're so desperate not to be seperated for what may be months on end. All for the sake of a £100 lamguage test he'd easily pass.

[MPH80]

Sure - you've got two options:

1) Appeal and hope that the court accepts he's now got the certificate (if he can figure out how to get it without his docs) and should therefore be granted leave under the rules or that they see your article 8 entitlement and grant leave under the 10 year route. Expect this to take anywhere from 9 to 18 months - during which time he'll have only obscure proof of any right to work he might have and will struggle with any employers - oh - and the possibility that you might lose and have to have him return anyway.

2) Reapply outside the rules, fail, appeal and hope under the same umbrella.

Alternatively - have him return to India, pass and apply - current processing time for a settlement visa in Chennai (for example) shows 71% of applications completed within 60 days and 98% within 90.

Providing you meet all the requirements - including the income ones applying from his home country is the quickest, easiest way to deal with this. If you don't meet the requirements - as you didn't when he applied before - then you can expect it to take a lot longer.

[stormystar]

Don't get me wrong, I appreciate the advice and take on board what your saying but my main concern is this. In the letter it states "you claim that your relationship is subsisting etc" and that's where they go on to say I should move to India. But then, at a later date, on a new application, could they turn around and say "oh actually we don't believe your relationship is subsisting after all". Because to be honest we don't have a lot of documented proof of how long we were together etc. If anything, we thought that was the main reason it might be refused. They've seemingly accepted for now it's subsisting but would that count for anything on a further application?

What if we moved to Ireland and did a combination of re-applying, after my husband taking the test, and applying in the same way he would if he was in India, wouldn't they both be "out of uk" applications regardless of where he is? Then if that fails we could at least potentially fall back on the Surinder Singh route, or maybe even stay in Ireland if that fails. I can't relocate to India. I could relocate to Ireland, because it would be very easy for me to then visit home and be nearby for my children.

[MPH80]

If you went to Ireland under an EU family permit and then applied - that would probably be fine.

However, you shouldn't then expect to be able to fall back on Singh because the route now requires you to make your primary residence the country you've moved to and an application to move back under UK rules would show you hadn't. There are already refusals coming through the pipe of people who return a bit too often to the UK - so you would have to be aware how often you visited family. If you continued to rent the property in the UK for your children - this would probably also count against you.

Remember that in order for Singh to work - you have to exercise your treaty rights - that means you (as the EU person) have to work or be self sufficient.

You should also keep in mind that moving to Ireland is as good as moving to India in the argument of 'my kids need me'. The moment you can be a day of travel away (which Ireland, reasonably, is) - you aren't necessary in someone's life. Necessary is an hour or two away, not 2 hours at an airport, 1 hour flying, 1-2 hours travelling after (and that's assuming there's a flight at the right moment).

You won't have problems with a subsisting relationship providing you keep all records of all communications (skype, text, whatsapp, whatever).

[stormystar]

Thanks for your reply. The main difference re india/ireland is this. I wont be likely to be able to get a job in india an then will not be able to afford £600 a time to fly back to the uk. Whereas I'm a professionally qualfied person with every chance of getting a job in ireland and it will be significantly cheaper to travel back to the uk. But thanks for your point re not visiting too often. I guess my question now is, how do we get my husbands passport back to enable us to pursue this option? Thank you.

[MPH80]

Contact the enforcement team as requested or use these contacts http://www.ukba.homeoffice.gov.uk/about ... documents/

[stormystar]

Thanks for that. I've done some research and suspect we may have the issue that a lot of people have of them not returning it until he's at the airport, ticket in hand. Presumably if that's the case, they can't insist that it's India he fly's back to, only that he leaves the UK?

Re the maintaining another home thing. I totally see what your saying but I still maintain it's unreasonable to expect me to turf out my kids onto the street and scamper off abroad with my husband. They don't stop being my kids. Before I ever met him I did consider moving abroad to work in a few years time, once my kids were a bit more sorted/stable but i would have still maintained a home here to give both me and them something to fall back on, at least for a couple of years. A lot of people do that. My friend emigrated to Australia (with a view to staying there permanently) but rents out her London flat. I know, as you say, it could count against us, but I see no other way.

Both you and the previous poster seemed reasonably confident that if my husband takes the English test and re-applys from outside the UK, that he will get his visa. Hence your advice being that he go back and do exactly that. Therefore surely he stands an equal chance of getting the visa by going to Ireland and applying from there? At least that way we'll still be together and if it is refused we'll have to take it from there and think again.

Can I ask a couple of final questions? No enforcement notice (i think that's what it's called) was served yet, I did a lot of research yesterday and found out that they don't serve it at the same time as the refusal. In fact my research suggested some people are waiting months/years for the enforcement notice as they are then entitled to appeal when they receive it. Could my husband be detained in the meantime or does that need to be served first? My understanding is that, at the moment, he is being asked to go "voluntarily". I'm asking this because if we could at least have a window of say a couple of months for me to get some cash together and apply for jobs in Ireland, find somewhere to live etc, that would help a lot. I know that would leave him with a "non status" here but we wouldn't be doing it for long. Truth be told, we could probably get away with him living here illegally for years to come the way things are right now, especially as we live in London, but neither of us wants that. We want to do this in the right way, but we just don't want to risk being split up.

Following on from that, when he makes his second application, will it make any difference whether that enforcement notice got served or not? As in, if he goes quickly would it help next time or make no real difference?

Thanks.

[MPH80]

It's great you've been doing lots of research.

You're right that without a removal direction or enforcement notice - he can't appeal a removal direction or enforcement notice. But you could appeal the decision that's been made against you and that might be a viable 'buy time' technique.

Going down the road of 'no status' would be, in my opinion, a bad idea. The government is closing the loop on people who are here without proper immigration clearance. So landlords will check status ... doctors will check status ... etc.

The reason I'm confident on a spouse visa being accepted if you meet the requirements is because that's how it works. If you meet the requirements you get the visa. Some of the requirements are objective (finance) and some are subjective (subsisting relationship) - but it's still a simple case of 'meet requirements = get visa'. Spouses are also granted exclusion from the mandatory bans that were brought in a few years back.

However, and here's the gotcha, the spouse visa can still fall foul of the rule known as 320(11). This is the general 'catch all' exclusion clause. This is only invoked in the event that the individual has done something to significantly frustrate the immigration rules. And the longer your husband is here without status - the more chance there is. For example - how long can he go without the NHS - and if he had to have surgery - could you pay the bill (and would you want the risk)? How long could he go without working? etc.

So simply overstaying is not a case for refusal. Overstaying AND doing significantly illegal things is.

I come back to the point - the simplest, easiest, way for him to get his visa is to return to India and apply. That doesn't make it the right choice for you - but it is the simplest and easiest way. But I've seen people here refuse to go home (because they don't want to separate), only to have a series of refusals and different routes attempted over the course of years, with all the associated stress, before finally giving in, returning home and being back 2 months later wondering 'why didn't I just do that before?'

Is 2-3 months of separation too much for a couple who are about to spend their live together?

M.

[stormystar]

Hi again

Thanks for your response. Your final point is one we actually discussed last night and I did even say, if we knew that he would definitely get it and it would happen within around three months, as hard as it would be, I could live with that. Because yes, our intention is to spend the rest of our lives together. That's what makes the refusal so frustrating when so many sham marriages go through with no problems. But then I see things, like on the India waiting time thread where, yes it's true many have gone through quickly, some are still waiting 6 months or more. I then get panicky and scared. UKBA also seem to make mistakes easily, thereby causing people untold stress/problems etc and that worries me. If I had more confidence in UKBA I don't feel it would be such a huge issue/concern.

Re the appeal thing, the letter does say "there is no right of appeal". We have been drafting a letter to send them, to ask them to "look again" at their decision, rather than saying directly "we are appealing". I don't know that it will do any good at all. However, I don't see how it would make anything worse so why not try? Is there anything better/different you'd suggest? We were going to send it to the TMT that dealt with our application.

When you say "mandatory ban" is that the 12 month ban I've read about? As that is one of our concerns.

Thanks for taking the time to give me your responses and advice. It is much appreciated.

[MPH80]

The mandatory bans come in a few different forms depending on how the person is removed from the UK. But if they go voluntarily and at their own expense - then yes - it's a 12 month ban. This is codified under rules 320(7a), 320(7b) and 320(7c).

However, there is then a specific exclusion clause for spouses in the family rules which prevents those bans from applying to applicants under the spouse visa path.

I think you need to think about the stresses and strains of going through the immigration process. Just think about the last few days ... how many times do you want to go through that? If Ireland is going to work for you - great.

I chose the path of least resistance for my wife and we went fiancee -> spouse -> ILR -> Citizenship - but it meant a couple of months apart. It was the right choice for us and once we'd got the visa within the rules - we were able to happily carry on with our life. I wouldn't wish those months on anyone - but I still regard it as preferable to have gone through months of uncertainty.

[stormystar]

Ok, hypothetically speaking, as it is at least useful to know about any and all options. If my husband were to return to India (as you have gathered, not our preferred option!) and something "went wrong", for instance we got refused again or the application drifted around the system for months on end. Would there be any reason why I could not go to India, collect him, then take him into Ireland via the family route/treaty rights and either carry on our wait there (if there were significant delays) or abandon it altogether and try and revert to the Surinder Singh route? If that makes sense? We would just need to know that if he goes back to India, that we can get him out again, whatever it takes. I can't say money isn't an issue, because of course it is to a degree, but I could afford to do that if I had to. Also, I would assume that I'd be able to go and visit him in India while this is going on? As I guess at least if I could visit him while we're waiting then that would make the separation a little bit easier to bear. As I say, India is the absolute last resort as far as we're concerned but I do see your point about stress and going through months of hell and uncertainty and possibly still failing.

[MPH80]

In theory - no reason at all why none of that couldn't work.

[stormystar]

Ok thanks. Thats helpful to know. We'll send our letter on monday, I'm thinking we should probably call the enforcement number also so it doesnt look like we're ignoring it, and then take it from there.

[stormystar]

A little update. We've spoken to two solicitors today. They both aaid do not do the surinder singh route, it will not work. Which is somewhat depressing as that was our fall back plan. One said just go back to india. The other has said my husband should try and do the english test and she will write to ukba. She said if we do that within 28 days we stand a chance. She seemed honest and said theres an approx 60% chance he could stay if we did this as she has successfully acheived this for past clients. Apparently if we can get something official from solicitor he could potentially take the test without his passport (as ukba have that). We're currently trying to arange that. I'll keep updating as this may be useful to others at some point.

[MPH80]

Ask your second solicitor for some references of people you can speak to about her success and so you can discuss their circumstances in detail.

There are a good number of solicitors out there who see cases like yours as pound signs rather than the best for their client and are willing to engage on fruitless quests just to earn another pound.

M.

[stormystar]

That is my concern I must admit. She's quoting 1500. Which if she could pull it off would be fine but if it gets us nowhere we're far worse off. The thing is, hiring a solicitor is our only chance for him to do the test as a letter from a solicitor is the only acceptable ID without my husbands passport. I dont know. Maybe we should just write to UKBA ourselves. I really dont know what to do and the clock is ticking so we need to decide soon.

[MPH80]

Which is why you should ask for references.

If she's legit - she'll be able to ring someone she did a really good job for and say 'hey - would you mind talking to this person ...' - and particularly if she's done this enough times to be able to say she has a 60% success rate.

Personally - my gut feeling is that someone who quotes percentages like that is talking out of their backside.

M.

[stormystar]

Your right really. I'm due to call her tomorrow. I'll ask then.