FLR O Human Rights Refusal

[Bunzidia]

Hello - I don't know where else to turn for help, so I thought I would try here.

The story is a bit long and complicated but I will try to simplify to the best of my ability.

I am a UK citizen - my wife, who is from the USA applied for a FLR O visa at the guidance of barristers from Kings Court Chambers. We feel that they handled our case and application very well and we felt as though we had a strong case.

This application was made on 8 May 2013 and was returned to us, refused, on 28 May 2013. The application was made on the basis that my wife as no ties in the US - no family, no property, no job and a few, scattered friends, none of whom are in a position to house or support her in any way. Her father was murdered in 2006 and her mother was the prime suspect - as such my wife has had no contact with her mother or 2 half sisters since that time. She fears to be anywhere near them, due to their psychotic and manipulative tendancies and would never think of returning to them.

We also stated in her application that I cannot return to live with her in the US, as I overstayed my visa waiver and also do not qualify for any US visas.

In our refusal letter, they state that we failed to prove either of these points - but I am uncertain as to how we could prove them? If they had read through our case, they would have seen these points clearly outlined. I feel as though the case worker was having a bad day and simply couldn't be bothered with our paperwork.

She has been given no right to appeal and we are uncertain what to do at this stage. Everything she has in this world is here in the UK - a loving family, a husband who supports her with a full time job, food and shelter. We do not rely on any sort of benefits of any kind.

I would be so grateful for any advice from anyone who has been through a similar situation or knows the ins and outs of UK immigration law... I have contacted the King's Court Chambers, only to be told that I can have a phone consultation for £350. We have contacted our MP, who has written to the Interim Director General of UK Visas and Immigration. We're not sure that anything will come of that, but we are desperate and will try everything possible to ensure that she remains here in the UK.

Thanks so much and sorry for the long winded post!

[yankeebrit]

What was the exact wording of the refusal?

What visa is your wife currently on?

Why are you applying in form FLR(O). What doesn't she apply from the United States on a typical spouse visa?

[Bunzidia]

The exact wording in the refusal is:

You have no children in the UK and so do not meet the requirements of EX.1.(a).

You claim to have a genuine and subsisting relationship with your British partner. Whislt iti acknowledged that your partner has lived in the UK all his life and is in employment here, this does not mean that you are unable to live together in the United States of America. Although relocating there together may cause a degree of hardship for your British partner, the Secretary of State is not satisfied that there are insurmountable obstacles preventing you from continuing your relationship in the United States of America. You therefore fail to fulfil EX.1.(b) of Appendix FM of the Immigration Rules.

In view of the above the Secretary of State is not satisfied that EX.1 applies in your case and so you do not meet the requirements of R-LTRP.1.1(d). Your application is refused under D-LTRP.1.3 and you do not qualify for leave under the 10 year route.

You claim to have entered the United Kingdom in 2011 and have not lived continuously in the UK for at least 20 years therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (iii).

At the time of your application you were aged 32. You were not under the age of 18 years or between that ages of 18 and 25. Therefore the Secretary of State is not satisfied that you can meet the requirements of Rule 276ADE (iv) and 276ADE (v).

You have spent 31 years of your life living in the United States of America and, in the absence of any evidence to the contrary, it is not accepted thatbin the period of time that you have been in the UK you have lost ties to your home country. Therefore the Secretary of State is not satisfied that you can meet the requirements of rule 276ADE (vi).

An application was made on your behalf on May 8 2013. However, you did not have leave to enter or remain at the time of your application.

Your application for leave to remain in the United Kingdom has been refused and you no longer have any known basis of stay here. There is no right to appeal against this refusal.

She entered the UK on a visa waiver. We were extrememly naive at the time and were given some very bad advice, not knowing or understanding that she could not change her status from within the UK. After the initial refusal for her FLR M (again, very naive of us and on bad advice), we saved up money for a barrister who advised us that the best thing to do was to apply for the FLR O as the UK government wouldn't want to split us up.

[Ayyubi72]

I would say a very sound refusal from UKBA.

Also it seems that all the way from the beginning all your applications have been totally irrelevant, wrong and full of errors. I am sure it was bad advice from solicitors and others.

Anyways, in my opinion, chasing this matter further will lead you nowhere, apart from being out of pocket by paying large sums to solicitors and an endless wait.

If you earn £18600 or above, then your wife is best off making a spouse visa application from USA.

If you do not earn this amount, then you could possibly explore EEA FP Surinder singh route. To be successful under this route, you and your wife will have to live in another eea country for a period of about 6 months, and you will either have to work or be self employed. It does not have to be a big salary. Just employed and earning some money (legally and documented) to get-by for a few months will do the job. The good thing about this route is, its simple and all applications are free.

[yankeebrit]

Bunzidia,

Do you believe you meet all of the typical spouse visa requirements? I.e. financial, accommodation, language, relationship etc? If so I really cant understand why you are trying to apply on form FLR(O).

If you do indeed meet the requirements it would be best to get all your paperwork together, have you wife go back to the USA and apply from there. If you pay for premium processing the turn around time can be as little as a few weeks.

Processing times inside the UK are much longer anyway. And applying for a spouse visa inside the UK is not a typical route to take...

Are we missing some other kind of issues here?

[Ayyubi72]

And applying for a spouse visa inside the UK is not a typical route to take.

Spouse visa from inside UK is simply not possible, given the circumstances of OP.

[Bunzidia]

If you do not earn this amount, then you could possibly explore EEA FP Surinder singh route. To be successful under this route, you and your wife will have to live in another eea country for a period of about 6 months, and you will either have to work or be self employed. It does not have to be a big salary. Just employed and earning some money (legally and documented) to get-by for a few months will do the job. The good thing about this route is, its simple and all applications are free.

Currently, I am employed full time and my wages are sufficient to support the 2 of us comfortably but come nowhere near the UK's requirements.

Where can I find more information on the Surinder Singh route? This sounds like it would be a viable option for us, as my wife has had a successful internet business and there would be no trouble starting again. We have some family in France, can you possibly tell me a bit more about how we go about making an application? I know there is no issue with me living and working there, but what does she apply for to live and work as a self employed person in France?

Thank you so much for your frank and honest opinions. We had no idea and obviously hired a very bad solicitor....

[Ayyubi72]

If you do not earn this amount, then you could possibly explore EEA FP Surinder singh route. To be successful under this route, you and your wife will have to live in another eea country for a period of about 6 months, and you will either have to work or be self employed. It does not have to be a big salary. Just employed and earning some money (legally and documented) to get-by for a few months will do the job. The good thing about this route is, its simple and all applications are free.

Currently, I am employed full time and my wages are sufficient to support the 2 of us comfortably but come nowhere near the UK's requirements.

Where can I find more information on the Surinder Singh route? This sounds like it would be a viable option for us, as my wife has had a successful internet business and there would be no trouble starting again. We have some family in France, can you possibly tell me a bit more about how we go about making an application? I know there is no issue with me living and working there, but what does she apply for to live and work as a self employed person in France?

Thank you so much for your frank and honest opinions. We had no idea and obviously hired a very bad solicitor....

Its actually you the British citizen who has to go in france and exercise treaty rights, and she lives with you there. She basically applies for a visa to go to france, based on her rights as spouse of eea citizen (you). You both go and land in france. You start working in france and apply for their equivalent of ni number or tax number or whatever it is in french law. You open a bank account, as well as her. Get a few official proofs of you two living together in france, and your employment record.

There is no minimum period according to eu law, but after your have been there for 5-6 months, your wife applies to British embassy for a UK EEA FP. Once she gets EEA FP, you come back to UK. EEA FP is for six months, and once she is in UK she can apply on form EEA1 and get a further endorsement for 5 years.

[Ayyubi72]

Once you have decided on this move, and want to find out how exactly things work in france eg their equivalent of a NI number or how to open bank accounts etc, you may post your questions in "europe immigration forum" on this board.

[Bunzidia]

So she would enter France on a visa waiver? Sorry, I don't mean to appear thick! We've just been told so many things over the course of all of this that I am terrified of getting the simplest thing wrong.

Thank you again for answering all of my questions - even the smallest kindness seems huge at this point.

[Ayyubi72]

Just read back your first post. Your wife is a US citizen, so does not need a visa to france. Yes, she can simply land in france. You can start exercising treaty rights like I said before. in about 5-6 months she applies UK EEA FP based on surinder singh criteria. I can also tell you that her previous immigration history in UK won't be a bar in her getting an UK EEA FP.

She does not strictly need a UK EEA FP as she can simply land back in UK with you. But then you might have to explain your case to Border guards in UK, and it could be an hassle. Applying UK EEA FP will remove all the doubts, and she will be able to enter UK without any trouble. This way her future applications in UK will be trouble free too, as she would have already proved at the time of UK EEA FP application that she does actually qualify under surinder sing criteria.

[Bunzidia]

Thank you so much for all of your help - we feel like there might be some light at the end of the tunnel.

I did have another question about this method - since she is a US citizen and would be entering France on a visa waiver, would it not pose difficulties in applying for the UK EEA FP if she stays over the period of time allowed in the visa waiver (90 days)?

[Bunzidia]

In addition to the questions about my wife entering France on a visa waiver and then overstaying while I exercise my treaty rights, I was wondering if you had any information or opinions on her current status in the UK and whether this will prove to be a hinderance to her when we apply for the EEA FP?

She sent in her passport with the first visa application that she made and the Home Office have had it ever since. We are uncertain if she is classed as an overstayer - but if she were, would this be a problem when after 6 months in France with me she applies for the EEA FP?

Sorry for all of the questions!

[rec212]

@Bunzidia, and @everyone

Hello, this is very urgent, i instructed the same firm and i am exactly in the same situation as ur wife. I am a male applicant who came here on a visitor visa and the advice given by those stupid firm was fundamentally wrong!
I called an independant organisation known as "onbudsman" and the are investigating the case.

They knew your wife's application was to be refused and the did not care, all they care about is money.

They caused me finanial and psychological loss and also breached my immigration history; I was so naive as well and did not know that visitors are not able to switch to any sort of visa as a "visitor" is self-explanatory!!!!

This firm is situated in Birmingham and i dissuade everyone to instruct them.

May god bless every one.
Much love.