URGENT appeal case this wednesday, advice needed please

[delilah123]

Question in short: Do you have any advice about what to expect or what to say at my appeal this wednesday:

Explanation in long....

Hi, my husband came to the uk in 2010 and ended up extending his visa twice in order to join british army, which UKBA allowed, unfortunately he turned 32 before UKBA managed to extened his visa one more time, which means he was too old to continue the process of joining the army. We got married a couple of months later before his visa ran out and applied without a lawyer for him to stay in the UK under a spouse visa just before the new income rule had came in to play.

After 9 months of waiting, We were refused because 1. When my husband applied, he did not have a visa for MORE than six months (his visa was for 6 months only), and therefore he was inellgiable to apply from within the UK and should have returned to Nigeria and applied from outside UK. And secondly, he had marked himself as coming from an majority english speaking country, which, in his experience, Nigeria is, as english is the only communal inter-city spoken language, plus, the Life in the UK test is actually harder than the English listening and speaking exam that he should have actually taken, so this point we are able to argue.
We now have a (not so great) lawyer, who we are using to appeal this decision. Since then, we have been informed that one of the points UKBA will be using to fight against our case is that we have not proved we are able to support ourselves without using public funds. Now, I am 22, and I am currently 6 months pregnant with mine and my husbands first child, I have been working since age 16 as a customer assistant/waitress and therefore Ive only ever been on minimum wage but have supported myself through study and with the help of my family. I quit my job when around 4 months pregnant as the work was proving too physical for me during my pregnancy, and for the first time, I went on job seekers allowance while looking for a more suitable job, before I can go on my maternity leave. Me and my husband live in a family home with my parents and siblings, and therefore do not use public funds for accomodation. My parents are witnessing the appeal and have writen letters saying they will support us financially untill we are able to do so ourfself, my nan owns her own international business and has written a letter stating that she also is willing to help financially and had a job waiting for my husband when he is legally eligiable to work.

Therefore, as far as i can see, we can argue the case that we have support from family in order to support ourselves. We are also able to argue about the incorrect test taken. We cant argue about the 6 month visa as it was just a mistake we made and we thought we could apply from within UK. I am also expecting a baby and we can use article 8's law entitling us to a family life here in UK.
What are peoples opinions about our case? has anyone been throught the appeal and can tell me what to expect to be asked? I am incredibly nervous, not that we have anything to hide, but just because being interrogated isnt my idea of a fun day out.

Any help would be much appreciated!

[MPH80]

I can't help with the actually appeal process itself - but I can walk through what you've put and help you there.

So - if I put my devil's advocate hat on for a minute - let me present your arguments and the counters you are likely to face:

When my husband applied, he did not have a visa for MORE than six months

Absolutely right - they applied the rules correctly here. I haven't seen anything in your text that says why he shouldn't have gone home to apply (aside from waiting to hear from the army).

he had marked himself as coming from an majority english speaking country, which, in his experience, Nigeria is, as english is the only communal inter-city spoken language

That might be his experience - but UKBA disagree and clearly set out who needs to supply an english test result.

Now - the judge might disagree with the rules - but he's looking for errors in law here rather than problems with the law itself.

the Life in the UK test is actually harder than the English listening and speaking exam that he should have actually taken, so this point we are able to argue.

Here (that the LITUK test is harder) I agree with you clearly - but the key point is exactly what you've said - the language test required for a spouse is in listening, speaking and writing. The LITUK test is purely about writing and reading.

I am also expecting a baby and we can use article 8's law entitling us to a family life here in UK.

The way article 8 is framed from previous judgements is about reasonable-ness. It doesn't say that you have a right to a family life in the UK - it says you have a right to a family life.

So the judge is going to look at the barriers of your relocation to Nigeria. Now you've already said yourself it is a majority english speaking country - so language isn't a barrier. A child, in itself, is not a barrier. If the child has significant barriers to relocation - for example a school history - then that's a barrier. Your family and connections are all positives in your favour.

Now - that all seems very negative - and it is - because those are your core arguments, but it's important you face the reality of what UKBA are going to say.

Now some positives:

therefore Ive only ever been on minimum wage but have supported myself through study and with the help of my family

Based on this - UKBA are probably right that you'd struggle to support yourself - but ...

My parents are witnessing the appeal and have writen letters saying they will support us financially untill we are able to do so ourfself, my nan owns her own international business and has written a letter stating that she also is willing to help financially and had a job waiting for my husband when he is legally eligiable to work.

This is all good and will help.

I hope this helps a little - I cannot, honestly, say what the outcome will be - but I suspect it will be down to how hard UKBA want to push on these arguments.

M.

[delilah123]

hey mph80, thanks for getting back to me...

I can see that the main problem would be that my husband didnt have a visa for more than six months, but surely due to the circumstances, i.e. I'm expecting our child in December, should be reason enough. I've put forward the argument that this case is causing me a great deal of stress and my midwife has written a letter that stress can cause a lot of problems during pregnancy. Surely my husband has the right to see his child being born and be part of his life? Early years of attachment are extremely important! If my husband has to return to Nigeria, then who knows when he can return. We would not be able to apply again for a spouse visa, as under the new income threshold, we would be denied. It could be years until I get a job with a high enough income to support him by UKBA rules.

The lawyer said he can argue the case about nigeria being an english speaking country, it was colonized by britain for gods sake! And the judge will see on the day that my husband can obviously speak fluently. My husband has also made it clear that he is more than happy to take the appropriate test but as UKBA are holding his passport i.e. his only form of I.D, he can't take the test at the moment.

I'm extremely worried as if he is denied, I do not see how he will be able to stay and live with me in the near future at all, the spouse visa application is out of the options again, I'm not moving with a new born baby to Nigeria, it's a country strife with health, policital and social issues and it is in our childs best interest to live in the UK.

Surely the whole point of an appeal is to take in to account personal circumstances and not just throw the blanket rule over everyone like UKBA do when denying people?

I'm really at a loss to believe that my own country can seperate a family like this, it just seems unreal that they have the power to force people into extremely difficult situations when the answer is so glaringly obvious. We are married, we are having a child, he has prospects and a life here, Nigeria is a dangerous country...

Any suggestions on other ways he can get a visa without having the leave the UK if this appeal falls through?

[delilah123]

oh and also, his friend who applied for a spouse visa, who is also from nigeria, took the life in the UK test instead of the speaking test, but he did have a student visa for more than 6 months, and they gave him his visa. The life the uk test is actually a test that my husband would be required to take in another few years down the line, so surely that shows it is harder than the speaking and listening exam?

[delilah123]

and also, if uzo had returned to Nigeria, by the time he could have afforded to go home and apply from there, we may have fell under the new rules with the income threashold so would have been denied automatically by that...hence why we applied as wuickly as we could from inside uk

[Amber]

below

[vinny]

Hi, I have an appeal tomorrow for FLR(M), are application was refused because a. husband did not have visa for more than 6 months and should have left uk and applied from nigeria, and b. he took the life in uk test rather than english listening and speaking test.
If our appeal is denied, and my husband has to return to nigeria, what is the best visa to apply for under our circumstances:
Under the new income rules, we would be denied for a fresh FLR(M) application, as I only earn £8,500 per year. Our family are willing to support us financially and we are not on benefit but the prospect of me getting a well paid job any time soon and very small.
Secondly, I am 6 months pregnant, surely theres a way for him to apply for a visa through having a child which is a british citizen..
but on UKBA website it says that to qualify:

- 1. you have sole responsibility for the child or the child normally lives with you and not their other parent; or

- 2. if the parent or carer that the child normally lives with is a British citizen or settled in the UK, but is not your partner, and you do not qualify for entry clearance as a partner.

My husband would not qualify under the first factor as my baby would obviously be living under my care, and im not sure if he would qualify under the second as we are partners, but do not qualify for him to come to uk under spouse or partner visa? It says 'not your partner AND you do not qualify for entry as a partner...surely it should be 'is not your partner, OR is your partner but you do not qualify for entry as a partner'

Any help from anyone would be greatly appreciated

During the interim period did he take a test to satisfy the English Language requirement to show the appeal?

as UKBA has his passport, he is unable to take the appropriate exam, and his passport is his only form of acceptable I.D. and if he asked for his passport back then the appeal would be canceled and we would have to apply afresh all over again...
I'm hoping that the life in uk test will be proof enough that he has a good understanding of english language and that when the judge speaks to him tomorrow, he can use his own judgement to see that uzo can speak english fluently...plus my nan has written a letter saying she wants to employ him to be a translator for her company 'the plain english campaign' and so obviously she wouldnt be offering him a job if he couldnt speak good english...I dont know how these appeals go, i understand that UKBA were in their rights to deny my husband, but surely an appeal is about looking at the whole picture and using logic rather than just throwing blanket rules over everyone?

[vinny]

Wasn't he originally admitted for longer than 6 months (284(i))?

[delilah123]

Was he admitted for longer than 6 months (284(i))?

hi vinny, no, he came here as a visitor in 2010 and managed to extend his visa by 6 months at a time while he was training with the army, before he could finish the traning process he turned 32, which meant he was too old to continue training for army. We just made an honest mistake when applying, as he had a visa for 6 months, we simply misread that he needed a visa for at least 6 months, rather than his current visa needed to be for more than 6 months

[delilah123]

does anyone have any idea on what we should apply for if this appeal fails?

[Amber]

See also, Surinder Singh

Bare in mind the article 8 leave is a 10 years route to settlement.

[delilah123]

See also, Surinder Singh

Bare in mind the article 8 leave is a 10 years route to settlement.

thanks, didnt know about that, i guess it would be a last resort, as moving to a european country by myself with a baby for three months isnt something id exactly want to do, but worth knowing!

[MPH80]

So ... What was the outcome?

[delilah123]

We won't find out for around 2 weeks. We basically appealed on the basis of article 8, there was no mention of the previous reasons of rejection at all. The UKBA lawyer really didn't have a lot to say, just said that we did not have proof that we can support ourselves financially. But my parents made a good case and showed we have third party financial support, and parents made a good compassionate case about the affect it would have on the family. We have high hopes but trying not to get too prematurely happy. I'll let you know what happens. Fingers crossed! Thanks for support

[delilah123]

just thought i would let anyone who's interested know that we recieved the call from our lawyer today that our appeal has been granted! we are extremely relieved! we have won on our individual family circumstances under article 8, lawyer told us he's only had it happen twice before so we're obviously not in the majority, but for anyone in a similar situation, just persevere and don't let the system of unfair blanket rules break your spirit!

[vinny]

See also, Surinder Singh

Bare in mind the article 8 leave is a 10 years route to settlement.

[alf32]

So glad to read your great news.
its all so pain staking, we are currently waiting for a decision, my husband is also Nigerian, we just pray that the persosn looking at our case can see the true love my husband and I have for eachother. The system sucks and as a British citizen feel so angry about our system. But Im willing to fight if need be till the bitter end

[alf32]

can i ask you, how long was the process from start to finish