PBS Tier 2 Visa Refused

[marcmach]

Hello all,

I am from Brazil, and recently applied for a Sponsored Tier 2 General Visa. I have a Civil Partner also from Brazil, and he applied with me for a PBS Tier 2 Dependent Visa. I got the visa, but my partner not. He received a refusal letter that states that he failed the requirements of the paragraph 319C(c)(iii). We sent with the application our Certificate of Partnership issued in Brazil, which is valid in the UK in accordance with the Civil Partnership Act 2004 SCHEDULE 20(where Brazil is included). The Civil Partnership is recent from last August, and we applied for our visas in early September. The certificate states that we have been in a relationship since 2009, but it was issued as I said before, on the 29th August 2016. We attended all requirements of Civil Partners, but the ECO used the aforementioned paragraph required for Unmarried or Same-Sex Partners. He said we did not send sufficient documents to demonstrate 2 years living together.

In his letter, he was told he can appeal. Can we state that the ECO used the wrong rule, and this rule is not applied to his case? We are currently in Brazil, but I will need to go to the UK in less than a month.

Any advice?

I drafted a cover letter to send with the appeal:

From
XXXX

23th September 2016

To
First Tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Leicester
United Kingdom
LEI 6ZX

Dear Sir/Madam,
I, XXX, am the sponsor of YY, who is my Civil Partner. My Civil Partner applied for Entry Clearance to the United Kingdom as a Point Based System (PBS) Tier 2 General Partner with reference number GWF.
The Entry Clearance Officer (ECO) refused my Civil Partner’s visa on the 15th September 2016, under paragraph 319C of the United Kingdom Immigration Rules, stating that he was not satisfied that my Civil Partner has demonstrated that he has ‘living together’ with me in a relationship akin to marriage for at least 2 years. Consequently, he was not satisfied that my Civil Partner meets the requirements of paragraph 319C(c)(iii).
My Civil Partner provided a notarised document (which is our Certificate of Partnership, issued in Brazil, and known in Brazil as ‘Declaration of Stable Union’) drafted on the 29th August 2016 in which we both declared that he has been in a relationship with me since the 01st March 2009. We have also included two utility bills which the ECO interpreted as to demonstrate our relationship. In fact, the bills were sent just demonstrate our home address in Brazil stated in the Certificate of Partnership. We officially got married on the 29th August 2016 according to the law, and there is no obligation of cohabitation prior to this date.
According to the Civil Partnership Act 2004 SCHEDULE 20 of the United Kingdom Legislation, our ‘Declaration of Stable Union’ is equivalent to the United Kingdom ‘Certificate of Partnership’, and by presenting it to the immigration, it must classify my partner and I as Married or Civil Partners, not as Unmarried or Same-Sex Partners.

Having said that above, I am very disappointed by the decision of the ECO as the refusal is not in accordance with UK immigration rules and law. The ECO appeared to have based the refusal on a non-applicable Immigration Rule 319 C (c) which states:
An applicant who is the unmarried or same-sex partner of a Relevant Points Based System Migrant must also meet the following requirements: (iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least 2 years. This rule is not applicable to married or civil partners.
As per the Nationality, Immigration and Asylum Act 2002 Section 84: Grounds of Appeal: (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision of the ECO is not in accordance with immigration rules;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights; (e) is otherwise not in accordance with the law;
(e)that the decision is otherwise not in accordance with the law;
(f)that the person taking the decision should have exercised differently a discretion conferred by immigration rules.
Based on the above explanation, I request you to please consider my civil partner’s appeal. Please find enclosed documents including utility bills under our names from 2012 to 2016, bank statements showing money transfers from/to our bank accounts, visa stamps along with copies of flight e-tickets, passport stamps, trip vouchers describing flight number and hotel name, copy of email from a hotel in both our names and copies of Facebook pictures showing both of us together either alone or in company of common friends. The documents are intended to demonstrate that have been in a genuine and subsisting relationship since 2009.
I hope that you will find my Civil Partner candidature worthy of an award of the Entry Clearance to the United Kingdom as a PBS Tier 2 General Partner. If you have any questions or clarifications, please feel free to contact me by email xxxxxxxxxxxxx or BBBB until the th of October, 2016 (after this date I will be in the United Kingdom, since I have been awarded with a PBS Tier 2 Migrant visa). You can see a copy of my vignette and my passport in the attached documents.

Sincerely yours,
xxxxxxxxxxxxxxx

[marcmach]

Hello all,

I am from Brazil, and recently applied for a Sponsored Tier 2 General Visa. I have a Civil Partner also from Brazil, and he applied with me for a PBS Tier 2 Dependent Visa. I got the visa, but my partner not. He received a refusal letter that states that he failed the requirements of the paragraph 319C(c)(iii). We sent with the application our Certificate of Partnership issued in Brazil, which is valid in the UK in accordance with the Civil Partnership Act 2004 SCHEDULE 20(where Brazil is included). The Civil Partnership is recent from last August, and we applied for our visas in early September. The certificate states that we have been in a relationship since 2009, but it was issued as I said before, on the 29th August 2016. We attended all requirements of Civil Partners, but the ECO used the aforementioned paragraph required for Unmarried or Same-Sex Partners. He said we did not send sufficient documents to demonstrate 2 years living together.

In his letter, he was told he can appeal. Can we state that the ECO used the wrong rule, and this rule is not applied to his case? We are currently in Brazil, but I will need to go to the UK in less than a month.

Any advice?

I drafted a cover letter to send with the appeal:

From
XXXX

23th September 2016

To
First Tier Tribunal (Immigration and Asylum Chamber)
PO Box 6987
Leicester
United Kingdom
LEI 6ZX

Dear Sir/Madam,
I, XXX, am the sponsor of YY, who is my Civil Partner. My Civil Partner applied for Entry Clearance to the United Kingdom as a Point Based System (PBS) Tier 2 General Partner with reference number GWF.
The Entry Clearance Officer (ECO) refused my Civil Partner’s visa on the 15th September 2016, under paragraph 319C of the United Kingdom Immigration Rules, stating that he was not satisfied that my Civil Partner has demonstrated that he has ‘living together’ with me in a relationship akin to marriage for at least 2 years. Consequently, he was not satisfied that my Civil Partner meets the requirements of paragraph 319C(c)(iii).
My Civil Partner provided a notarised document (which is our Certificate of Partnership, issued in Brazil, and known in Brazil as ‘Declaration of Stable Union’) drafted on the 29th August 2016 in which we both declared that he has been in a relationship with me since the 01st March 2009. We have also included two utility bills which the ECO interpreted as to demonstrate our relationship. In fact, the bills were sent just demonstrate our home address in Brazil stated in the Certificate of Partnership. We officially got married on the 29th August 2016 according to the law, and there is no obligation of cohabitation prior to this date.
According to the Civil Partnership Act 2004 SCHEDULE 20 of the United Kingdom Legislation, our ‘Declaration of Stable Union’ is equivalent to the United Kingdom ‘Certificate of Partnership’, and by presenting it to the immigration, it must classify my partner and I as Married or Civil Partners, not as Unmarried or Same-Sex Partners.

Having said that above, I am very disappointed by the decision of the ECO as the refusal is not in accordance with UK immigration rules and law. The ECO appeared to have based the refusal on a non-applicable Immigration Rule 319 C (c) which states:
An applicant who is the unmarried or same-sex partner of a Relevant Points Based System Migrant must also meet the following requirements: (iii) the applicant and the Relevant Points Based System Migrant must have been living together in a relationship similar to marriage or civil partnership for a period of at least 2 years. This rule is not applicable to married or civil partners.
As per the Nationality, Immigration and Asylum Act 2002 Section 84: Grounds of Appeal: (1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision of the ECO is not in accordance with immigration rules;
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant’s Convention rights; (e) is otherwise not in accordance with the law;
(e)that the decision is otherwise not in accordance with the law;
(f)that the person taking the decision should have exercised differently a discretion conferred by immigration rules.
Based on the above explanation, I request you to please consider my civil partner’s appeal. Please find enclosed documents including utility bills under our names from 2012 to 2016, bank statements showing money transfers from/to our bank accounts, visa stamps along with copies of flight e-tickets, passport stamps, trip vouchers describing flight number and hotel name, copy of email from a hotel in both our names and copies of Facebook pictures showing both of us together either alone or in company of common friends. The documents are intended to demonstrate that have been in a genuine and subsisting relationship since 2009.
I hope that you will find my Civil Partner candidature worthy of an award of the Entry Clearance to the United Kingdom as a PBS Tier 2 General Partner. If you have any questions or clarifications, please feel free to contact me by email xxxxxxxxxxxxx or BBBB until the th of October, 2016 (after this date I will be in the United Kingdom, since I have been awarded with a PBS Tier 2 Migrant visa). You can see a copy of my vignette and my passport in the attached documents.

Sincerely yours,
xxxxxxxxxxxxxxx

Any moderator? Please, help!

[Frontier Mole]

A couple points to consider

An appeal will take several months to be heard. The letter you have written does not get considered before the court hearing date. You are probably looking at March - May 2017 for a hearing.

The additional documents you intend to supply with your appeal will be discounted as they were not available to the ECO at the time of decision.

Your letter is well constructed and appears to meet the need to probably have the decision overturned. There would appear to be an error in the decision based on the information.

IMHO you would be far better served by doing a new dependent application than going to appeal. Submit the contents of your letter and the additional documents / evidence. I believe you will be successful

[marcmach]

Thank you Frontier Mole.

I have a couple of questions:
1. I will submit the appeal by post with the new evidences, and I will choose Papers, not Hearing, since we are not in the UK. Do you think the tribunal or the ECO will not consider my new documents and evidences?
2. Will it take too long, Mar-May 2017, for us to get a response from the appeal?
3.In case I resubmit a new application, should I say in the letter about the refusal of the first one?


Regards,
Marcmach

[Frontier Mole]

Unfortunately the appeal process regardless of a paper or oral hearing will not be considered anytime soon. The case will get listed for a future date and on that date the cases is dealt with. There is no consideration of the case before the hearing date. So anything submitted will wait on file until the hearing date.

Hearing dates are viarable but you will not get a hearing until sometime in the New Year reasonable to expect March onwards, there is always weeks / months of wait. There is no fast track process.

If you want to defend your case through appeal it will take months of waiting.

You have a much better chance of your partner joining you far sooner by applying again. You must mention the refusal, if you don't it will be an automatic refusal for not doing so.

Good luck

[marcmach]

Thank you, Frontier Mole

I will reapply for my partner. Regarding my third quedtion, I was referring to mention the refusal in my letter and not in the application form, in which of course I need to report it.

I already reformulated the above letter, addressing to an ECO, exposing my partner satisfies the requirements of paragraph 319C, when applicable, and does not have to satisfy paragraph319C(c)(iii). I also mentioned that he got refused by not satisfying this item, but we disagree with this decision since it is not applicable to us. That is what I do not know if it is whorth to mention.

I am submitting documents to show our consisting relationship, although we just got married on 29 august 2016: our certificate of partnership, utility bills (2 per year from 2012 to 2016) showing we were neighbours since 2012 explaining we did not move together after august since we plan to move together to the UK and the law does not require cohabitation before getting married, money transfers in different dates from 2014-2016 (about 18 in total, 6 per year), facebook pictures from 2011 to 2016, vouchers from travel agencies+flight etickets+visa stamps+Emails from hotel bookings 2009-2016 showing we travel together. Do you think it is enough?

Regards, marcmach

[marcmach]

Unfortunately the appeal process regardless of a paper or oral hearing will not be considered anytime soon. The case will get listed for a future date and on that date the cases is dealt with. There is no consideration of the case before the hearing date. So anything submitted will wait on file until the hearing date.

Hearing dates are viarable but you will not get a hearing until sometime in the New Year reasonable to expect March onwards, there is always weeks / months of wait. There is no fast track process.

If you want to defend your case through appeal it will take months of waiting.

You have a much better chance of your partner joining you far sooner by applying again. You must mention the refusal, if you don't it will be an automatic refusal for not doing so.

Good luck

In my fresh application, should I send them a copy of the ACT 2004 Civil Partrship schedule 20 showing the certificate of partnership from Brazil is valid in the UK? Marcmach