just been refused grant leave to remain help me please

[richard1959]

we have just recieved this morning this huge blow.has anyone any advise they are willing to share.do we appeal of re apply for new visa when my wife has gone home.help please.we are so distraught.

[mrandmrsfox]

sorry to hear that Richard..
can i just ask..was it FLR or ILR ?

[Terpe]

richard1959,
Please can you provide further details:-
What was the reason given for refusal of FLR?
When does your wife's current visa expire? and what type of entry visa was it??

[richard1959]

good evening
im not too sure if it was flr or ilr but ill give you the story.we met 2 1/2 years ago got fiancee visa in july 2010 fritzie came over.we married last december and then applied for spouse visa.fritzie visa expired on january 1st 2011 they did not recieve our application until the 4th january.

they keep quoting article 8 of the ECHR the right to respect for private and family life.if looked at the article and digressed but seems very hard to address the issues raised for someone who has been here for 6 months only.fritzie has made so many new friends filo and english,has taken care of my mother who has demensia is that viable and quantifies "familylife" as they so often quote.my concern is do we appeal or send fritzie home and then reapply as spouse visa.what would be your advise.
regards

[richard1959]

article 8 of the ECHR " familylife"
fritzie came on a fiancee visa in july.we married in december and applied for spouse visa.her visa expired on january 1st they say they did not receive our postal application until january 4th.
your advise would be welcome do we appeal or re apply if fritzie went home.
sorry if too brief im just heart brocken.
regards
richard

[Terpe]

Ok, Richard, so your entered UK on Fiancee Visa.
She then married in December and applied for FLR (Further Leave to Remain).
This has been refused.
Did your wife include an English Language Test pass certificate with the application?
The new rules since 29 November state that this is a requirement.

BTW:

Article 8 of the (ECHR) European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".

“ Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Maybe they are indicating your possible reconsideration or appeal basis?

But Richard, what was the reason for refusal??
Did your wife comply with all requirements? Including English language test.

Time is of the essence now

[richard1959]

no she never took a english test,i was not aware that on the new visa application its only states that are you prepared to take test.

the refusal states you made an application on 4th of january2011.however,your leave to enter expired on 01 january 2011.you therefore did not have leave to enter at the time of your application.you no longer have any known basis to stay here.there is no right of appeal against this refusal.

hope that helps.
regards
richard much appreciated at a time like this. many thank

[joebloggs]

when did you post the application ?

[Arthur Little]

fritzie came on a fiancee visa in july.we married in december and applied for spouse visa.her visa expired on january 1st they say they did not receive our postal application until january 4th.
your advise would be welcome do we appeal or re apply if fritzie went home.
sorry if too brief im just heart brocken.
regards
richard

:please: ... no need to apologise for being brief, Richard :nono-1-1: ... it's completely understandable in the circumstances. And you're bound to be still in a state of shock. :cwm24:

I'd imagine it was Further Leave to Remain - as opposed to a Spousal Visa - that Fritzie applied for, having come here as your fiancee back in July. Six months isn't really a lot of time for a couples to make wedding arrangements AND attend to the more mundane [albeit essential] matters like the myriad of paperwork associated with applying for visas. But then ... that's purely a personal opinion!

Experienced and knowledgeable members like Joe - and perhaps also, Terpe - are better qualified than me to guide and advise you as regards whether or not Fritzie is likely to be granted any extension of her Leave to Remain pending a possible appeal ... without having to return to the Philippines.

Which is one of the reasons Joe's asking when Fritzie's application was posted. If it was sent off before the end of December, then I would've thought allowance ought to have been made for January 1st, 2nd and - most probably the 3rd - being public holidays. And the fact that your application appears to have arrived on the first working day after New Year seems fair enough to me.

However, effective from 29 November past, it became a compulsory requirement for all non-European spouses to undergo a prescribed English Language Test ... as Terpe has explained. And since - by your own admission - Fritzie did not take this test, I'm frankly, surprised that it wasn't mentioned as being one of the reasons given for refusal.

:sorry-2: - and disappointed - at the way things have turned out for you ... truly I am ... especially so on learning of the tremendous support Fritzie has been in caring for someone struggling with dementia. But hang on in there mate, ... hopefully help is at hand through the wisdom of the good folk we are fortunate in having on this forum. :xxgrinning--00xx3:

[keithAngel]

Richard Joes question is the key one If for example you posted the application on say the 15th December you might have grounds to appeal but my guess is,sad as it is, that you didnt make yourself aware of the rule change re the A1 English test and there may be no way round that.

In which case your wife will have to return to the Phils and take the test and reapply for a spouse visa, Information is the key its a pity you wernt here back in July as you might have been better prepared hope it all goes well for you and you use the resources here to achieve your goal:xxgrinning--00xx3:

[Howerd]

I think, in situations like this, you really need expert legal advice.

[Terpe]

Richard1959

Very sorry about your situation.
Did you not see the requirements on the application form?

The application for FLR was not compliant without the English Language Test pass certificate.

The next step is solely your individual choice.
You can appeal against the decision
or
You wife returns to Phils, takes the test and re-applies spouse visa

You could also contact your local MP to help whichever route you wish to take as he may be able to help in some way. Nothing to be lost anyway.

Please be informed that there is a very tight time limit for submitting any appeal.
It is 28 days from the date you received your notice of refusal. If you do not submit within this time limit it might not be accepted and you will likely have lost your right to any appeal altogether

Also your wife only has a limited window to leave UK as her visa is now expired.
I think (but not sure) she must leave within 28 days also

The UKBA webpage for appeals is here:-
http://www.ukvisas.gov.uk/en/howtoapply/infs/inf19appeals

You really need legal advice on this from an OISC registered Immigration Advisor or a solicitor specialising in Immigration.
To consult an immigration advisor The Office of the Immigration Services Commissioner (OISC) is here:-

http://www.oisc.gov.uk/

Good Luck Richard
Would be good to know what you decide and how you get on.

[Dedworth]

Which is one of the reasons Joe's asking when Fritzie's application was posted. If it was sent off before the end of December, then I would've thought allowance ought to have been made for January 1st, 2nd and - most probably the 3rd - being public holidays. And the fact that your application appears to have arrived on the first working day after New Year seems fair enough to me.



I'd have thought for posting to have any bearing it would need to have gone recorded or special delivery so there is signed proof of delivery to the UKBA before 1/1. Anyway good luck to Richard and his wife

[Howerd]

You can appeal against the decision
or
You wife returns to Phils, takes the test and re-applies spouse visa

According to Richard, the letter received says there is no right of appeal.

[Arthur Little]

I'd have thought for posting to have any bearing it would need to have gone recorded or special delivery so there is signed proof of delivery to the UKBA before 1/1.

Possibly it did get sent either Recorded or Special Delivery :rolleyes: ... but what we're trying to establish is the actual date of postage!

[Arthur Little]

According to Richard, the letter received says there is no right of appeal.

Yes :rolleyes:... but Richard was referring to there [apparently] being no basis for an appeal to the European Convention On Human Rights.

[joebloggs]

According to Richard, the letter received says there is no right of appeal.

they say no right to appeal becuase her visa had expired by the time he posted the app or they received..

but what counts is when you posted it, and do you have evidence of posting ?

also you still have the problem of her not passing the 'english language test'

[Terpe]

Just as a 'brainstorm' idea. Does anyone think that Discretionary Leave application might be a possibility?

If we do not recognise you as a refugee or a person who qualifies for humanitarian protection, we may give you
another type of temporary permission to stay in the UK. This permission is called 'discretionary leave to remain'.
How long you are allowed to stay will depend on your circumstances, but it is unlikely to be more than three
years initially.Discretionary leave
http://www.ukba.homeoffice.gov.uk/asylum/outcomes/successfulapplications/leavetoremain/

[Terpe]

On the questions about posting and postdate etc.......

This page tells you how to assess the date that an application has been made on a specified application form.

The date of application or variation is either:
• the date of posting for postal applications, or
• the date a public enquiry office accepts the application, if it is made in person, or
• the date it is delivered to the UK Border Agency if it is sent by courier.

You must accept the postmark as evidence of the date of posting. If the application’s envelope is missing, or if the postmark is illegible, you must take the date of posting to be at least one day before it is received.
You must take the date of processing on the payment contractor’s stream sheet as the date that the application was received. If there is accompanying correspondence that matches the likely date of posting, you must take this date as the application date. If you are unsure, you must accept the date that is most favorable to the applicant.

If an application, or variation, has previously been rejected as invalid under the Immigration Rules, and the applicant resubmits an application that fully meets the requirements of paragraph 34A, you must take the date of application, or variation, as the date that the valid application form is resubmitted. The guidance above tells you how to determine the date of application.
You must make sure that the UK Border Agency has kept the fee before you confirm that it is valid.
An application or variation can only be valid once all the requirements of paragraph 34A of the rules are met.
If you decide to reverse a previous decision to treat an application as invalid and treat it as a valid application, you must take the application date as the date which the application was originally made.

Source:-http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/other-categories/forms-and-processes/specified-forms-procedures.pdf?view=Binary

[Howerd]

On the questions about posting and postdate etc.......

This page tells you how to assess the date that an application has been made on a specified application form.

The date of application or variation is either:
• the date of posting for postal applications, or
• the date a public enquiry office accepts the application, if it is made in person, or
• the date it is delivered to the UK Border Agency if it is sent by courier.

You must accept the postmark as evidence of the date of posting. If the application’s envelope is missing, or if the postmark is illegible, you must take the date of posting to be at least one day before it is received.
You must take the date of processing on the payment contractor’s stream sheet as the date that the application was received. If there is accompanying correspondence that matches the likely date of posting, you must take this date as the application date. If you are unsure, you must accept the date that is most favorable to the applicant.

If an application, or variation, has previously been rejected as invalid under the Immigration Rules, and the applicant resubmits an application that fully meets the requirements of paragraph 34A, you must take the date of application, or variation, as the date that the valid application form is resubmitted. The guidance above tells you how to determine the date of application.
You must make sure that the UK Border Agency has kept the fee before you confirm that it is valid.
An application or variation can only be valid once all the requirements of paragraph 34A of the rules are met.
If you decide to reverse a previous decision to treat an application as invalid and treat it as a valid application, you must take the application date as the date which the application was originally made.

Source:-http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/other-categories/forms-and-processes/specified-forms-procedures.pdf?view=Binary


There is no possible appeal, irrespective of the date when the application was made as the applicant must pass the A1 test (or demonstrate she is exempt) in order for an FLR application to succeed. The applicant has not passed the test and has not, presumbably, demonstrated to the UKBA that she is exempt from the test.

I think one possible route is to remain in the UK, apply for FLR(M), on the grounds that the A1 test will be taken with X weeks, pass the A1 test, then submit new ILR application.

Failing that, it may be necessary to leave the country, take the A1 test outside the UK, then re-apply for FLR. In that case, however, it may be necessary to spend a further two years on FLR before applying for ILR again.

The OP's wife really does need to seek proper help from an immigration solicitor or recognised (OISC-registered) immigration specialist, to ensure that the proper procedure is now followed, since any futher errors could only be to her detriment.

[Howerd]

they say no right to appeal becuase her visa had expired by the time he posted the app or they received..

but what counts is when you posted it, and do you have evidence of posting ?

also you still have the problem of her not passing the 'english language test'

Without an A1 pass, the application would have been rejected anyway, irrespective of the application date. There are no possible grounds for appeal, since it is an absolute requirement that the A1 test has been passed, unless the applicant falls within one of the exemptions.

Assuming the applicant is not exempt from the A1 test, she needs to consider what application needs to be made, in order to stay in the country, take the A1 test and then submit a new application for ILR. For that, I would suggest she now needs legal assistance from someone properly qualified.

If the applicant is exempt from the test on the grounds of a qualification equivalent to a UK Bachelors Degee, that was taught in English, she could obtain proof of this from NARIC but she would still have to submit a new ILR as she did not provide proof of exemption with the initial ILR application; it may be simpler just to take the test anyway. In the meantime, she would still probably have to apply for FLR again until she was in a position to re-apply for ILR.

[Terpe]

But it is really quite irrelevant to this situation. In order to make a valid application for FLR she should have taken the A1 test beforehand.

Howerd,
There is no such thing as irrelevant when 'brainstorming' we're all just trying hard to help out.

I realise that the application becomes refused as invalid due to no A1 test. The importance of the information is, hopefully twofold:-
1. It might be helpful in a determination of when the clock starts for overstay etc
2. It might be useful information for others

Anyway, Howerd thanks for following the thread and making inputs.

[bruneicop]

Man that's tough...can you get somewhere to take the English test ASAP?? is your wife ready for it? I guess you can take it in the UK right? try and find a local centre that can sort this for you next week.

As for appeal I am unsure, but for any fighting chance try and get this done, (it can only help) get some legal advice.

Good Luck Richard I hope everything works out.

[KeithD]

The UKBA can actually be understanding and a little flexible if given the correct information.

You need to send a letter explaining everything in detail about what has happened, and inform them the wife will take the test at College X, on the date X. Then ask them clearly if it is possible to be given leave to remain till 2 weeks after that date so you have time to process the new app, in order to save the expense and hassle of wifey going back the phil, and all the stress that woukd cause as her home is here now.

Also make sure you clearly apologise for the problems caused.

This letter must be done by your wife. Quote all immigration references. It needs to be posted Monday at the latest.

[Terpe]

The UKBA can actually be understanding and a little flexible if given the correct information.

You need to send a letter explaining everything in detail about what has happened, and inform them the wife will take the test at College X, on the date X. Then ask them clearly if it is possible to be given leave to remain till 2 weeks after that date so you have time to process the new app, in order to save the expense and hassle of wifey going back the phil, and all the stress that woukd cause as her home is here now.

Also make sure you clearly apologise for the problems caused.

This letter must be done by your wife. Quote all immigration references. It needs to be posted Monday at the latest.

Keith, nice, clean, concise and helpful.:xxgrinning--00xx3:
I want to give rep but no idea. Who can help??

[KeithD]

Click the STAR under my post ;)

[Terpe]

Click the STAR under my post ;)

All done easy, Englishman beat you to it:D

[Howerd]

The UKBA can actually be understanding and a little flexible if given the correct information.

You need to send a letter explaining everything in detail about what has happened, and inform them the wife will take the test at College X, on the date X. Then ask them clearly if it is possible to be given leave to remain till 2 weeks after that date so you have time to process the new app, in order to save the expense and hassle of wifey going back the phil, and all the stress that woukd cause as her home is here now.

Also make sure you clearly apologise for the problems caused.

This letter must be done by your wife. Quote all immigration references. It needs to be posted Monday at the latest.

Council Parking Ticket offices can be similarly obliging when approached reasonably.

[grahamw48]

Well, they granted a dependant settlement visa to my step-daughter (the one the ex forgot to tell me about until after our marriage :rolleyes:).

I wrote a letter to the Entry Officer, explaining why there had only been one child (stepson) mentioned on the original spouse visa application, and I think I went to see them too. Long time ago now, so struggling to remember the details.

Anyway, it worked. :)

[joebloggs]

There is no possible appeal, irrespective of the date when the application was made as the applicant must pass the A1 test (or demonstrate she is exempt) in order for an FLR application to succeed. The applicant has not passed the test and has not, presumbably, demonstrated to the UKBA that she is exempt from the test.

I think one possible route is to remain in the UK, apply for FLR(M), on the grounds that the A1 test will be taken with X weeks, pass the A1 test, then submit new ILR application.

Failing that, it may be necessary to leave the country, take the A1 test outside the UK, then re-apply for FLR. In that case, however, it may be necessary to spend a further two years on FLR before applying for ILR again.

The OP's wife really does need to seek proper help from an immigration solicitor or recognised (OISC-registered) immigration specialist, to ensure that the proper procedure is now followed, since any futher errors could only be to her detriment.

i think there will be a number of people who are caught out in the uk, who were not aware of the requirement until they started to fill the FLR form in, or they didn't have enough time to take and pass the test b4 their visa expires, so there must be some flexibility for these people, I am sure the HO must have some procedure to deal with this short term problem (which should no longer exist in a few more months for those in the uk already as everyone who comes to the uk from nov 29 needs to have passed the test to come to the uk)

i think it is important when it was posted, becuause if it was before the 1st of jan, she would have a right to appeal ( yes she has not pass the A1 test) but if she could appeal while the appeal was been processed she would not have been seen as an overstayer, giving her some time to take and pass the A1 test, and submit another FLR(m) app.

she cannot apply for FLR outside the uk, also she doesnt have any leave to remain to further extend, she would have to apply for another settlement visa from the phils

[keithAngel]

i think there will be a number of people who are caught out in the uk, who were not aware of the requirement until they started to fill the FLR form in, or they didn't have enough time to take and pass the test b4 their visa expires, so there must be some flexibility for these people, I am sure the HO must have some procedure to deal with this short term problem (which should no longer exist in a few more months for those in the uk already as everyone who comes to the uk from nov 29 needs to have passed the test to come to the uk)

i think it is important when it was posted, becuause if it was before the 1st of jan, she would have a right to appeal ( yes she has not pass the A1 test) but if she could appeal while the appeal was been processed she would not have been seen as an overstayer, giving her some time to take and pass the A1 test, and submit another FLR(m) app.

she cannot apply for FLR outside the uk, also she doesnt have any leave to remain to further extend, she would have to apply for another settlement visa from the phils

I perhaps mistakenly thought fiance visas did not require the A1

If so you might do better now to get that even on a fiance visa:xxgrinning--00xx3:

[Dr Graham]

I think everyone on this Forum is Sympathetic to your situation and Wishes you The Best of Luck !

Two comments I would make, and hope they may help or encourage.

According to the recent TV Documentary the UKBA cannot insist on someone leaving the UK if there is an Appeal waiting to be Heard or Decided Upon.

And when my Fiancee had her Visa Application Refused, the UKBA also Refused her the Right of Appeal.
But when we took our case to the Immigration Advisory Service their experts said the ECO's Decision was SO OBVIOUSLY WRONG that they would LODGE AN APPEAL REGARDLESS.

If you can register your Appeal in time, even if it subsequently gets dismissed when it comes to Court, at least it will give you some MONTHS in which to comply with any other requirements.

[aposhark]

It just shows how useful this forum is for all of us :xxgrinning--00xx3:

Forewarned is forearmed and there are so many knowledgeable people here, like Joe Bloggs :icon_sorry:and others.