American in Need of UK Fiancé Visa Advice

[Kas2323]

Dear All,

I am writing to request your advice on my UK visa application and the actions of my current solicitor.

I am an American citizen and have been living in the UK for 12 years, the last 9 of which have been spent in Westminster. I am engaged to a British national (who has been a resident of Westminster his entire life), with whom I have been in a relationship with for 8 years.

I was originally admitted into the UK as an A-level student in January 2002. I fell in love with Britain and continued my studies in the country. I soon built a network of friends, became involved with the community and met my partner. Towards the expiration of my student visa in 2008, I was misadvised by the Home Office to apply for UK Naturalisation in order to continue my stay. The application failed, as my status at the time was not sufficient for that type of application. I sought legal advice and was informed that I did have a right to citizenship and that I was allowed to stay in the UK while my situation was being resolved. Under the guidance of that solicitor, I wrote several letters to the Home Office (which were ignored), trying to resolve the problem. After that, I did not know what else to do except wait for a reply. In November 2013, I was asked to depart from the UK as I had over-stayed my visa. I instructed my current solicitor, cooperated with the UKBA in every way possible, and departed at my own expense, on 9 December 2013, with the intention to apply for re-entry via a fiancé visa.

My fiancé and I are established within London and are a valued part of our community. We frequently attend local gatherings, have many friends in the area and always do our utmost to help our neighbours and elderly members of the community. We have a wonderful group of local friends (all of which are hard-working, tax paying, UK citizens), who have been immensely supportive of us during this difficult time.

I have always paid my Council Tax, rent and bills promptly and in good faith. When I had a valid student visa, I paid employment tax on the part-time jobs I held while studying.

Unfortunately, my fiancé, through no fault of his own, is not employed and is in receipt of disability benefits for injuries sustained in a vehicle collision. One of the conditions of the fiancé visa application is to prove financial sufficiency unless the sponsor is exempt. As of todays date, it clearly states on the UKBA website: http://www.ukba.homeoffice.gov.uk/visas ... financial/

“Exemptions
You will be exempt from the new financial requirement if your sponsor receives a specified disability-related benefit or carer's allowance in the UK. You will need to show that your sponsor can maintain and accommodate you without access to public funds.”

However despite this statement I received an email on 16 January 2014, from the Sheffield Visa Section (which I am happy to provide upon request), which states:

“Your application falls to be refused solely because you do not meet the income threshold requirement under Appendix FM and/or the related evidential requirements under Appendix FM-SE. This is because your sponsor is not exempt from the financial requirements. Incapacity Benefit/Employment Support Allowance is not one of the benefits that qualifies for exemption.”

This seems to be in complete contradiction of the guidelines given on the UKBA website. The next section of the email I received, went on to explain that my application would be put “on hold until the Courts have decided the outcome of the Secretary of State's appeal in a legal challenge to the income threshold requirement.” This legal appeal is in relation to an income threshold requirement, which should not even apply to my situation based on the exemption. I feel as though the UKBA have not even read my application and have just sent a blanket email.

My current solicitor agrees with this point and has said that he has written to the UKBA requesting clarification. He says he has received no reply but will also not provide me with a copy of this letter or any other correspondence he has sent, supposedly due to ‘intellectual property rights.’ Surely I should be entitled to see what has been written about me? When I questioned this point, he threatened to drop my case entirely.

He has now stated that I should pay even more money to launch an appeal (even though he originally stated that such eventualities would be included within the fees already paid). However, how can I appeal a decision that has not been made?

I have been left completely in limbo, based on an ‘income threshold Court Appeal,’ (which by the Home Office’s own statements, does not even apply to my application) and a solicitor who seems unable to advise me further.

I have a very good job offer in the UK, which is now under threat of expiration as I am unable to provide any information of when I can realistically expect to start.

My application shows that I am clearly not someone who would ever need to claim financial support from the government. Furthermore, once my fiancé and I are married, his public support will be cut nearly in half, which would be of benefit to the public purse.

My fiancé and I genuinely love each other and marriage is something we do not seek lightly. I have always loved the UK and it is our greatest wish to live here for the rest of our lives. I have two pets that I care for and adore; a family, a home, community and job offer all waiting for me in London.

From my research, I believe this has now also become a human rights issue. My family life has been torn apart, causing immense stress and heartache. According to the article 16 of the Universal Declaration of Human Rights:

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”

My partner and I have been forcefully prevented from marrying and from being with our family. We have followed every application requirement to the letter and spent a small fortune on fees and solicitors.

I am very confused and have been left at a loss. I would greatly appreciate any advice anyone can give me.

Kindest regards,

[vinny]

(c) the requirements in paragraph E-ECP.3.3.being met.

Where

E-ECP.3.3. The requirements to be met under this paragraph are-

(a) the applicant's partner must be receiving one or more of the following -

(i) disability living allowance;
(ii) severe disablement allowance;
(iii) industrial injury disablement benefit;
(iv) attendance allowance;
(v) carer's allowance;
(vi) personal independence payment;
(vii) Armed Forces Independence Payment or Guaranteed Income Payment under the Armed Forces Compensation Scheme; or
(viii) Constant Attendance Allowance, Mobility Supplement or War Disablement Pension under the War Pensions Scheme; and

Is his benefits included in E-ECP.3.3.(a)?

[physicskate]

Your rights aren't actually being infringed according to the letter of the law. Is it not possible for you to have a family life with your fiancé in the US?

Also, on a fiancé visa you are not eligible to work. You would have to wait until you have married and have received FLR.

I'm sorry for the stress you are going through.

The exception for disability is for very specific scenarios. What type of disability benefit is he receiving? How long has he received it?

[Kas2323]

Dear All,

Thank you so much for your replies.

To answer your questions, my fiancé's benefits are just referred to as 'Incapacity for work/employment and support allowance' on the form we received which is coded as 'IB/ESA113.'

My solicitor never mentioned there were different categories to this law. Does it still apply to us?

In regards to my employment offer, I am aware that I cannot legally work before we are married but was again told by my solicitor to have a pending offer which would help my application.

Please help. Your replies are much appreciated.

Best wishes,

[Amber]

The exemption doesn't apply to those only receiving ESA. You need a solicitor fluent in welfare rights and immigration law, your partner needs to claim PIP if not already claiming DLA or PIP.

[Kas2323]

Dear Amber and All,

Thank you so much for clarifying those points of law in regard to benefit exemptions. In one short paragraph you have given me more help that 6 months of dealing with a high-priced solicitor, who it seems has grossly misadvised me.

Taking this information into consideration, the UKBA appear to be correct in putting my application on hold pending the appeal taking place this week. Am I correct in assuming (contrary to the advice of my solicitor), there is no point in launching an appeal against a decision which was technically correct? Is my best option at this stage to wait on the outcome of the Home Office appeal?

Also, the reason my fiancé and I did not get married while still in the UK was because we were told that the marriage and fiancé application were essentially the same, and it would not make much difference (and we wanted to wait and plan our 'dream' wedding in a church). Was this accurate? If we were to get married in the USA or within the EU would this change anything?

Aside from moving to another country, do we have any other options at this stage?

Thank you again so much for your advice.

[Amber]

I haven't read all you initial post. However, if you do not meet the Financial Requirement and the sponsor is not receiving a disability benefit as per Vinny's quote, an appeal would be futile for consideration under spouse leave. As it stands, your application will be stayed until the Court decides on the outcome of the Financial Requirement. Subject to appeal to the Supreme Court. Just because a legal adviser charges a lot doesn't mean it's any good. I'm afraid the legal profession is not holding itself very well in the current climate.