Hi everyone. Needs some advice please.

I am a British citizen and my fiancé of two years has had two in-country (UK) visa renewal applications refused by the HO. First one was a Tier 1 Post Study Work, refused on the grounds of not meeting maintenance. We mmisunderstoodthe requirements for the 800 pounds. We were given no right of appeal as the application was made out of time.

To give some background, his initial application was made in time, however was returned four weeks later (after his leave expired) as invalid as the forms had changed. We weren't aware of the update.

On receiving the refusal his employer (A rated sponsor) agreed to sponsor him under Tier 2. We got the PIN number and maintenance letter and with a strong cover letter, sent everything off. We had no reason to believe it would not fail as all the criteria was met (or so we thought). The application was considered and after 7 weeks we received another refusal stating that the salary he was being paid was not at the minimum required for his job code and they were refusing the application on those grounds.

As you can imagine we were devastated by this as we were not aware of job codes etc and believed that his employer knew what they were doing.

He then made the decision to go back to Nigeria, with me to follow in a few weeks and do a court wedding and apply to return under the husband visa as I am UK citizen. We have now been advised by a immigration solicitor that if we do that he may not be allowed back in the country for a min of 2 years and that we should challenge the Home Office decision via a judicial review.

We are really confused. We don't want to jeopardised his record by over staying but we really don't understand what this judicial review will do. Are we taking a big risk to stay in the UK and do the judicial review, as opposed to going back home and getting married?

Any advice or thoughts welcome!

Hi Emuche

Judicial Review is a remedy of last resort and challenges a decision that is unlawful i.e not in accordance with the Law or there has been an error in law. If you successful challenge by judicial review, the court can only conclude that there was an error of law in the HO's decision and they should go away and remake it, normally to a positive decision. If you are not successful, the court will just say that the HO 's decsion is not unlawful and you have no further basis to remain in the UK.

From what you have said, you should have been given a 28 day grace to resubmit his first application while they retain the fee. If after this period, your fiance did not resubmit the form, then his fee will have been refunded and any future applications refused on the basis that it was made out of time and he no longer has any leave to remain in the UK(any period after which, he will be considered an overstayer). However you mention that he resubmitted and was also refused because he did not meet maintenance requirement, if this was also a reason then you cannot argue that the decision was unlawful because it was made in accordance with published requirements. On this basis, the decision of the HO does not appear unlawful. I stand to be corrected if you clarify the position further.

Again with regards the application under Tier 2, the application guidance clearly lists what the requirements are and unfortunately your fiance appears not to have met the criteria. The HO decision on the face of it does not appear unlawful.

It does appear that your fiance may have overstayed by now. If he has not overstayed yet, applying for judicial review(has to be made within 3 months of the decision to refuse) may buy him time but chances are it may fail, by which time, he may have overstayed. If he overstays, the option of going to Naija to get married and apply will be risky as he may be refused entry clearance for settlement because he overstayed during his previous visit to the UK. You may be able to appeal it and then you may win but just be prepared for that possibility.

My opinion is that if you judicial review, you are just prolonging your problem as based on what you have said(unless there is more), your judicial review application is likely to fail, you would have paid solicitors and have the court award cost against you(for being the losing party) thereby losing money. I pray that by now your fiance has not overstayed, if he has then it will be better to go to Nigeria and do the marriage and apply but be prepared to fight any refusal and this may mean your fiance being in Niger for longer than expected. If he has not overstayed, the best option again is to go back now, get married and apply-you will stand a better chance of getting the settlement visa. However be aware that because of his previous history, they may think your marriage is not for real so make sure your application is backed up with loads of supporting documents to prove your relationship is genuine.

I hope this helps you weigh up the pros and cons so that you can make a decision but as you said what is crucial is that you do not jeopardise his record over here by overstaying---totally agree with that.

Good luck

Thanks so much for your response JJM. That has been my worry all along. His last letter from the Home Office which came with the refusal stated that he needed to contact the law enforcement office before the 8th September to collect his passport and provide details of how and when he will return home.

We contacted them on the 2nd, they didn't have his passport back yet. They then rang us a couple of days later to say they have it and we should book the flight and come back to them when we have the ticket and they will release his passport. In these situations how long is a reasonable time for you to book your flights and leave?

This whole thing is a mess (over a £800!). I really don't want him to be classed as overstayed because he hasn't and any decision he made (re-applying) was made on the instruction of either his employer or a lawyer.

The judicial review is not cheap and I do not want to have to go through all of this, to have a negative result and we're back to square one. I am much more comfortable with fighting the marriage case as we will have no issues providing the evidence.

Why would the lawyer say we have a strong case if we clearly don't?

Also if he leaves now and he isn't classed as overstaying, will he banned from entering if we apply from Nigeria?

On what grounds would he banned from re-entering? He hasn't done anything 'wrong'.

Emuche:

Also if he leaves now and he isn't classed as overstaying, will he banned from entering if we apply from Nigeria?

On what grounds would he banned from re-entering? He hasn't done anything 'wrong'.

I think JJM made a very good point there, let him book a ticket now and go back to Nigeria for the marriage, then apply for marriage visa, u stand a better chance with that. Since they have called u to come and pick up the passport, do that, if he keep draging his legs and overstay then u are in for a tough one

Eluche

If he has not overstayed(i am afraid it appears he has, the date will be the date his last leave expired or from the date of the last refusal since he was not given a right of appeal), then he stands a better chance in any future application. The problem he is likely to face is that there will be presumption from the outset that your marriage is not genuine when you make the application in Naija because his previous leave in the UK was as a student, he was refused etcccccc. So they are bound to think that he only got married to able to return to the UK. It is up to you to rebut that presumption by putting all documents, pictures etc possible to support your application, overdocument if possible.

If you decide that he goes back, dont leave it too long as the longer he overstays, the more difficult it will be for you when you come to appeal any refusal in the future.overstaying by one day may be justified on appeal but the longer it goes on, the bigger the hurdle.

The normal process is that you book the ticket, let them know and they will have his passport ready for him at the airport and serve him with the necessary papers before he boards the plane-I am afraid it is looking like he has overstayed but it is all about damage limitation now my dear.

Sorry you have to make this decision but the lesser of the two evils is best in the long run.

Sorry I referred to you earlier as Eluche.

Thanks for your response - you have been really really helpful and have helped us decide.

He came into the UK as a student and switcher over to a one year IGS visa after he graduated from university and was in the process of getting the second year under transistional arrangements.

Just out of interest, all this information you know, is it common knowledge or are you a specialist in this area?

The lawyer doesn't seem to think he has overstayed. Is he counting from the wrong refusal (the Tier 2 instead of Tier 1)?

Emuche:

Thanks for your response - you have been really really helpful and have helped us decide.

He came into the UK as a student and switcher over to a one year IGS visa after he graduated from university and was in the process of getting the second year under transistional arrangements.

Just out of interest, all this information you know, is it common knowledge or are you a specialist in this area? Feel ver

The simple truth is this, if u read the HO visa rules properly, u will not have problem getting a visa, i never used any visa agent, i did my post-study work permit myself, b4 that, i did my student visa extension myself all successful. If u took your time and go through those rules over and over again. read the Policy Guidance(always on the right handside of Border Agency website) it explains every terms and conditions needed. It tells u what happens when u did not meet certain condition. Yes some is from personal experiences and some common knowledge. Good luck

You are welcome Emuche.

My knowledge of this is from a mixed bag of sources really. Justwise is right to a certain extent that most of the information can be obtained from the UKBA website and the guidance notes for the forms but you need more to be able to read the law in conjunction with the procedure.And in some cases where the rules have been interpreted wrongly and problems ensues, you need a good lawyer to advise you properly.

Good luck and I hope it all goes well for you and your fiance

one more thing Emuche, with regards whether he has overstayed, your lawyer may know more because he has the file. My take on it is that if his first application was refused due to the wrong form and it may well be that he was given a 28 day period to resubmit and it was during this time that he made the Tier 2 application, his previous leave should continue from then on.

He may have overstayed from the refusal of the Tier 2 application as no appeal was lodged(or he was not given a right of appeal). If your lawyer is saying he has not overstayed, okay, best to leave voluntarily then and apply in Niger. As said earlier, if your lawyer has advised to JR, it will cost money and from what you have said, may lose and you will be back to square 1 with a lighter purse.

good luck my dear

Thanks again.

Emuche,

I won't go into the pros and cons of a JR as opposed to returning to Nigeria.
JJM has covered that more than adequately.

However, going down the road of marriage just to get your boyfriend into the
country does appear a bit drastic. If you were going to marry him regardless
then fine, but that is not the impression I get.

There is an alternative, that is the unmarried partners visa, these are the conditions you will be required to meet:

You and your unmarried or same-sex partner must show that:

any previous marriage, civil partnership or similar relationship, has permanently broken down
you have been living together in a relationship similar to marriage or civil partnership for two years or more
you have suitable accommodation which is owned or lived in only by you and your household, and where you and your dependants can live without any help from public funds
you can support yourselves and any dependants without any help from public funds
you intend to live together permanently
your partner is not under 21, and
you are not under 21.
The Entry Clearance Officer will need to see evidence of a two-year relationship. This may include:

documents showing joint commitments, such as bank accounts, investments, rent agreements or mortgages, and
letters linking you to the same address, and official records (such as a gas or electricity bill or proof of your rent or mortgage arrangements) of your address
At first, you will be allowed to stay and work in the UK for two years. Near the end of this time, if you are still partners and intend to continue living together, you can apply to stay permanently in the UK.



 

Hope this helps.

Sorry Emuche,

I just read your post again and realised your boyfriend is actually
your fiance, in which case you may want to consider applying for
a fiance visa instead.

Broadly similar requirements but you will need to get married within six months of the
issuance of the visa.

Good luck whatever you decide.

This is just my own question!!

After reading through the thread I decided to ask!!

If an overstayer has no contact with the British Immigration for any reason and decides to leave voluntarily. How are they able to detect if he reapplies that he is an overstayer?? I have heard of cases where people bribe the immigration in Nigeria not to stamp their passports. I have also seen cases of people overstaying, going back home and then returning in a matter of weeks, that's why I am asking

aysometin:

This is just my own question!!

After reading through the thread I decided to ask!!

If an overstayer has no contact with the British Immigration for any reason and decides to leave voluntarily. How are they able to detect if he reapplies that he is an overstayer?? I have heard of cases where people bribe the immigration in Nigeria not to stamp their passports. I have also seen cases of people overstaying, going back home and then returning in a matter of weeks, that's why I am asking

If he bribes Nigerian Immigration, how about heathrow airport his point of departure? Its not even a good idea to overstay for a start.

@Emuche

My advice for you is to come Nigeria with him, get married and apply for spouse visa but i hope you got documentary evidence of your 2years relationship.

As for his 'refusals and overstaying issues' these will not stand against him;

Reference:

(7B)
The applicant has previously breached the UK's immigration laws by overstaying; breaching a condition attached to his leave; being an illegal entrant; using deception in a visa application, leave to enter or remain (whether successful or not).
UNLESS

the applicant overstayed for 28 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;
used deception in an application for entry clearance more than 10 years ago;
left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;
left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than 5 years ago;
was removed or deported from the UK more than 10 years ago;
was unaware that the documents submitted or representations made were false;
was previously issued a visa in the knowledge of the immigration breach; or
was in the UK illegally on or after 17 March 2008 and left the UK before 1 October 2008;
They were refused LTR as a student solely on the basis that they made an out of time application;
The applicant has been accepted by UK Border Agency as a victim of trafficking.
Yes - ECM

(7C)
NB - wef 1 July 2008, under paragraph 320(7C) the provisions of 320(7B) will not apply to:

Those applying for settlement categories to join family members in the UK or to exercise rights of access to a child;
Those accompanying family members who will be submitted for settlement on arrival;
Those applying under family reunion;
Those whose breach of immigration law took place when they were under 18yrs.
If an application has been refused in these categories between 1 April and 13 May 2008 and the reasons for refusal were solely under paragraph 320(7B), the decision should be revoked and then issued.

read more: http://www.ukvisas.gov.uk/en/ecg/refusals/refusalgeneralgrounds

Hope this helps!

@aysometin

I agree with justwise, what if Heathrow have a record of you leaving through your ticket at check in(this is on the premise that you use your real name). It can be linked. Regardless of what is being done. My advise is to err on the side of caution. Things have changed and will continue to change. HO is tightening up,some may still slip through the net, but better safe than sorry.

@JJM
you guys are too much, your analysis of this case is very professional.

@ VOR

We did and have considered the fiancé visa, but it has restrictions on the ability to work and seeing as he has a job and has been working for the past one year, it wasn't a good option for us.

Just go back to Nigeria and get married!! Let him apply for a spousal visa after, but like people have said, you need a lot of documentation to prove that it's genuine
I think that's your best option now
May GOD help you