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Thomas
Thomas, Solicitor
Category: UK Immigration Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Got a letter from the Home Office on Friday that my application

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Got a letter from the Home Office on Friday that my application for a marriage visa was refused because I do not have an unexpired leave to remain at the time of application. It was the same situation before we applied for the Certificate of Approval which they granted because we had proved that we had a genuine intention to marry and look after our two kids. Whilst waiting for the outcome, my wife went to the HO and they changed her settlement visa to reflect her status as a Mrs with my surname. They gave no recourse to appeal their decision. Do you think I have chance by getting the decision overturned by seeking a Judicial Review? My simple argument is this: If they are quite happy to let me marry here by granting the COA, recognized my wife as legally married to me here in the UK, why cant they grant the visa here? And if I should decide to go to my country to apply from there, will it be a pretty much straightforward case of getting the visa because of our marriage having been conducted in the UK or my overstaying may become a big problem?
Submitted: 3 years ago.
Category: UK Immigration Law
Expert:  Thomas replied 3 years ago.

Hi,

 

Can you confirm:-

1. How your wife has settled status here

2. When you married

3. What your visa status was and when it expired

4. That you have applied for a spouses visa and it has been refused without a right of appeal because you have at present no legal right to remain in the UK.

 

Kind regards,


Tom

Customer: replied 3 years ago.
1. Wife has an Indefinite Leave to Remain visa.

2. June 2010.

3. It was a Workingholiday visa and expired in 2001.

4. Absolutely.
Expert:  Thomas replied 3 years ago.

Okay, so you have overstayed for a period of 9 or ten years. Correct?

 

Tom

Customer: replied 3 years ago.
That is right Tom.
Expert:  Thomas replied 3 years ago.

It's is not worth going to JR on. There is a distinction between how an overstay effects gaining a COT and applying for a spouses visa from inside the UK.

 

The COT is granted because a person has a right to marry in the UK regardless of their overstay, it stems from Article 12 Right to Marry of Human Rights Act. To deny this would be incompatible with that Act.

 

This does not mean that because one is permitted to marry here they are also permitted leave to remain as a result of that marriage and I believe it says as much on the bottom of the COT. The two are distinct from each other.

 

The overstay is a general reasons for refusal under the immigration rules. However under Rule 320 this general reasons do not apply to family applications (which yours is):-

http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/part9/

 

This means that you can apply for a spouses visa from outside the country (ie. back home) and the overstay will not in and of itself be a valid reason for refusal. If there are no other defects in your application then it will be fine and you should be granted a visa.

 

Only you should return home, not your kids. They should stay here until you have obtained visa.

 

You may also consider seeing a UK immigration solicitor to prepare your out of country application before you return home to ensure the application is as cogent and easily read as it can be so that a decision can be reached easily by the UKBA.

 

If this is useful please kindly click accept so that I may be rewarded for my time. It will be gratefully received and you will be free to ask follow up questions.

 

Kind regards,

 

Tom

Thomas, Solicitor
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Experience: BA (Hons), PgDip, Practising Solicitor
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