need some advice on ECM review

[lyndsay89]

hey guys .. I just need some advice on what were going threw.
Back in january 2012 we got an immigration lawyer to help us put together my husbands settlement visa application. the lawyer told us to book an english test with Cambridge university( known as ESOL). so we called them up and they told us there was no english test in my husbands country that does the ESOL test. so we got that in written confirmation. WHAT our lawyer forgot to inform us is that we could take the english test with other test centres( stupidly enough we didnt know we could as weve never done this before.) so she said they would exempt us from the english test. So once we got the decision back from the ukba in colombia. my husbands application was refused on english test. ( i was very upset, that we got told the wrong information.) everything else in the applciation is fine, etc they know were genuine and we have good accommodation, and my income is fine. it was just the case of the english test. whilst my husband was in colombia he undertook his english test and passed it with a high b1.( just to let you all know my husbands home country is Honduras, There is no british embassy there so he had to go down colombia to apply). Now weve wrote a really good review letter stating what happened and we didnt intend not to take the english test on purpose. we just got told the wrong information.


we have lodged an appeal and the british embassy have till 5th april 2013 to get stuff in order. we send the review letter and my husbands english test results to the british embassy on the 5th december.

what are the chances of them overturning it. we dont want to waste time and tax payers money for this going to court.

its really hard on me and my husband as weve been apart now for 15 months

any information will be appreciated. ive known 2 people that their husbands got refused and they overturned it.( and one was illegally in the uk and they still overturned his visa decision). but i guess everyone is different.

[Lucapooka]

The fact that you misunderstood the rules, and that there are indeed many different types of tests available (not just ESOL) is not, in my opinion, suitable grounds for appeal. Generally, taking a test after a decision to refuse a visa is not acceptable as, generally, only evidence that existed at the time of the decision can be considered.

However, you never know what can happen and, assuming this is the only issue with the refusal, there may be some discretionary scope for the ECM to allow the new test even though it is post-decision evidence. So, nothing is certain at this stage of the game. If you are missing each other it would have been better to re-apply after the test was taken. As is stands you may wait until April only to hear that the ECM has upheld the decision. Good luck.

http://www.ukba.homeoffice.gov.uk/polic ... /apl/apl7/

APL7.5 Post decision evidence
The relevant date in entry clearance cases is the date of refusal. This is established from case law and s. 85(5) of NIAA 2002. Any material change in circumstance or evidence not reasonably foreseeable after the date of refusal should not be taken into account. In practice this means when conducting the review the ECM should only look at circumstances leading up to and including the date of refusal. An ECM or Immigration Judge is entitled to look at circumstances / evidence after the date of decision only if they relate to circumstances before or at the time of decision.

There is a distinction to be made between new evidence and additional evidence.

New evidence:

New evidence which postdates the decision cannot be considered by the ECM. This evidence should be acknowledged in the Review and the ECM should indicate that this should be used to support a fresh application.

[MPH80]

Agreed with Luca - and you really should keep your posts in one place.

M.