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Howard
Howard, Immigration Lawyer
Category: UK Immigration Law
Satisfied Customers: 459
Experience:  Senior Partner with nearly 20 years experience in UK Immigration Law.
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I have been refused a fiance visa under paragraph 320 (7b),

Resolved Question:

I have been refused a fiance visa under paragraph 320 (7b), I have lodged an appeal. The ECM has until 21st Feb 2014 to respond.

My question is, from your experience, is my case likely to proceed to court? The only point highlighted on the refusal notice is my continuing 12 months re-entry ban, due to expire on 14th Dec 2013. The ECO did NOT treat my UK fiance application as a UK fiance application. He or she treated it as a marriage visitor visa, which is wrong. As the fee I paid was substantially higher than a marriage visitor visa and my immigration specialist had prepared a really strong case, no docs were missing. The application had 'UK fiance visa' written all over it. The only thing they had to 'pick on' was the re-entry ban. This was issued following a refusal on entry on arrival last Dec 2013, whilst I was on a visitor visa.

The immigration officer was not sure of my intentions to enter the UK on that occasion (14th Dec 2012), because I had previously stated that I was only staying for a month and stayed 5 months in total, therefore I didn't overstay. I left with over a month left on my visitor visa. Then tried to re-enter on 14th Dec 2013, as I had to rush home due to mitigating circumstances, so I was planning to reclaim my remaining possessions. I was not permitted entry and was sent back the same day.

Submitted: 9 months ago.
Category: UK Immigration Law
Expert:  UK_Lawyer replied 9 months ago.
Hi, thank you for your question. Please remember to rate my service so I am credited for my time.

Would you like me to answer questions again or would you like another expert?

Kind regards
Customer: replied 9 months ago.
Dear UK Lawyer,

Thank you for your reply. I really appreciate your previous inputs. May I get another opinion on this matter, please? Thank you so much.

Kind regards.
Expert:  Howard replied 9 months ago.
Did you apply for a Fiance visa using the appropriate forms and appendix for the financial requirement?

Was the application refused solely on the basis of the reason you have stated in your question? It would be helpful if you could upload a copy of the refusal letter with your personal details covered.

If a Fiance visa is refused due to the previous 12-month ban then it can be argued and should be heard and approved through appeal or even an administrative review if you can get the local High Commission to take another look at the application. You might be surprised what can be achieved if you can get someone at the High Commission to take a look at an incorrect refusal.

It can be quicker to simply apply for the visa again after your ban expires but the ban should not have been sufficient reason for refusal.
Customer: replied 9 months ago.

Dear Howard,

Thank you for your reply.

Yes, I did apply for the fiance visa using the correct forms, which were the online VAF4A and Appendix 2 forms, plus all the supporting evidence and my immigration barrister's legal submissions. It took us two months to compile all the required info. I just would like another immigration specialist's opinion on the matter.

Please see attached the refusal notice.

What do you mean by an administrative review please? The appeal bundle is now on its way to the local British High Commission.

I can apply after the ban expires, however that doesn't deter the UKBA from detecting another reason for the refusal. It's a rare circumstance, where all the odds seem in my favour. It's just a frustrating wait to get the decision overturned.

I though administrative reviews only apply to student visas, with limited rights of appeal? And that all settlement visa have to be sent to AIT in Leicester first, before being reviewed by the local ECM. Can you kindly clarify this? Thanks.

Please note, the refusal notice was not even signed nor dated.

Kind regards.

Expert:  Howard replied 9 months ago.
Utterly bizarre, quoting a visit visa information page in refusing a Fiance visa application. As you said, they appear to have not even managed to understand what type of application had been submitted.

It is often possible to persuade the local High Commission to take another look rather than forcing you down the appeal route. This involves contact them directly and explaining that they have made a serious mistake in applying visit visa rules against a Fiance visa application. Some will simply refuse to look into it but many times you can get someone there to take another look. You can try calling them if you can find their number or email their complaints email address. A customer here recently managed to get a refusal overturned by going directly to the High Commission and complaining.

If this is not successful then you should get approved through appeal but you then need to wait for the High Commission to issue a visa and this can often take quite some time.
Howard, Immigration Lawyer
Satisfied Customers: 459
Experience: Senior Partner with nearly 20 years experience in UK Immigration Law.
Howard and 2 other UK Immigration Law Specialists are ready to help you
Customer: replied 9 months ago.

Thank you for your reply.

So can you confirm that they've treated my application as a marriage visit visa, as oppose to a UK fiance visa?

The local high commission does have a contact number, but it's a nightmare to get through to the visa section, it's mostly busy, or they don't accept calls at all. And you cannot simply go there in person, as the security personnel are instructed not to admit clients without an appointment for an interview or otherwise. It took me 4 weeks, just to reclaim the remainder of my original documents off them, the last time. Moreover, they have proven to be stubborn already with the 12 months re-entry ban, therefore my gut instinct is not to give them a reason to take up the entire 19 weeks ECM review period.

I personally think that they've deliberately taken this approach to refuse my application on the basis of the 12 months ban, although there's no way of proving it. As it doesn't make sense for an ECO not to understand or to 'mistake' a fiance visa application. They know the rules, it's just unfortunately they don't play by their rules.
What's even more bizarre, is that they made me attend an interview and denied it on the refusal letter.

Has the refusal got anything to with statelessness? I have been granted visas to the UK before (both visitor and student). I have never overstayed nor claimed benefits and my sponsor this time is an EU national exercising treaty rights in the UK, earning above 18,600 pounds per year, so he would be supporting me financially. And it's a breach of his human right, not to allow him to marry, if that was the case, is that correct? Thanks

Finally, is this matter likely to proceed to a tribunal hearing or is it likely to be overturned by the ECM? (based on your experience) As what they've committed is an unlawful decision and it could land them in serious trouble.
My barrister has prepared a strong appeals bundle; highlighting every mistake they've committed. I think it would prove to be a mammoth task for them to counteract those points, as they have to back up their claims.

Many thanks.

Expert:  Howard replied 9 months ago.
I am concerned by your statement that your Fiance is an EEA national exercising Treaty Rights in the UK. If this is the case then you should NOT have applied for a Fiance visa.

To join your EEA Partner in the UK you would either need to prove 2 years co-habitation for a relationship akin to marriage or be married (durable relationship). You cannot get a Fiance visa to join an EEA National in the UK. You would actually need to apply at best for a visit for marriage visa and then leave and apply for an EEA Family visa once married.

Based on your statement above it might be the case that the High Commission has not made a mistake at all and that you were making the wrong type of application?
Customer: replied 9 months ago.

My immigration specialist is a barrister with over 12 years experience, he cannot have committed such an error.

Where does it say on the UKBA site that such rule exists?

We haven't lived together for two years and we're not married, so we cannot go down that route.

On the UKBA site, it says that a UK fiance visa is for those intending to marry a British citizen or a person settled there, which my sponsor is.

Plus wouldn't the UKBA mention that I have applied under the wrong category on the refusal notice?

Customer: replied 9 months ago.
Relist: Inaccurate answer.
Expert:  Howard replied 9 months ago.
I am an immigration lawyer with nearly 20 years experience. I have no idea why you would use a barrister for this type of application or why he would advise a Fiance visa in the circumstances you have described.

If your Fiance is an EEA National exercising Treaty Rights then he is NOT settled in the UK and you do NOT apply for a Fiance visa. EEA Nationals and their family members are covered by EEA rules and EEA visas:

http://www.ukba.homeoffice.gov.uk/eucitizens/eea-family-permit/

I can absolutely 100% assure you that the information I provided in my previous post is correct IF your Fiance is an EEA National exercising Treaty Rights in the UK as you have stated. If your Fiance WAS exercising Treaty Rights but has since obtained Permanent Residence after 5 years working in the UK then the Fiance visa would be appropriate but this is not what you have said - you have said he is an EEA National exercising Treaty Rights.

Choose not to believe me if you wish but the information I have provided is absolutely and beyond question correct.
Customer: replied 9 months ago.

There has been a misunderstanding.

My sponsor has been exercising treaty rights and HAS provided 5 years worth of bank statements, payslips, p60s, proof of previous addresses, to cover the whole period of 5 years, because he does not have an EEA residence card, but I was advised it is not a requirement to have such a card, as long as you can prove 5 years worth of supporting documents, proving that he has worked and lived in the UK for 5 years, which he has.

So I doubt that the embassy has made a correct decision based on this information.

Kind regards.

Expert:  Howard replied 9 months ago.
So, your statement that your Fiance was an EEA National exercising Treaty Rights was somewhat misleading. You will appreciate why I raised this as an issue based on the statement that you made. I would appreciate a revision of the rating that you gave.

I would suggest that there is a strong possibility that the caseworker has not recognised the automatic right to Permanent Residence after exercising Treaty Rights for 5 years. You are correct that there is no requirement to obtain a card. The Home Office do strongly recommend that people obtain the card though as it simplifies matters (such as this application).

I would try contacting the High Commission through their complaints email address as previously advised and to any other email address you can obtain. All you need is the right person to read your complaint and you might be surprised what can happen. I have got High Commissions to recall an applicant and provide an apology and the visa without going through a formal process.

You should still pursue the appeal as well - it can always be cancelled if necessary. I would expect the appeal to be successful but it could take some time and it could take quite a bit of time for the High Commission to issue a visa once you get a decision.

I have a feeling that this is a simple error, albeit one that is so simple it should not have occurred. They have clearly not assessed on the basis of being the Fiance of a person who is settled.
Customer: replied 9 months ago.

My apologies for my misleading statement.

I am 100% satisfied with your last reply. Thank you.

How do I revise my last rating, please?

Many thanks once again and sorry for the misunderstanding.

Kind regards.

Expert:  Howard replied 9 months ago.
Not a problem - these things happen sometimes and at least we have got the issue ironed out.

The only way to revise a rating is to provide another rating that is positive and this cancels the previous one.

If you have further questions then do not hesitate to ask.
Customer: replied 9 months ago.

Precisely. Thank you.

I tried to give you a positive rating just then, but just answer said that I need to pay the amount for the question once again?

Expert:  Howard replied 9 months ago.
If that is the case then don't worry about it (unless you feel you would like to). I expect your previous positive rating would take priority.
Customer: replied 9 months ago.

I apologise. That didn't used to be the case. I guess the site policy has changed. I will provide a positive rating next time.

Many thanks for your help and inputs.

Kind regards.

Expert:  Howard replied 9 months ago.
My pleasure and I wish you the very best of luck - I expect you to get a positive result and the primary question is the time that the process will take.

Good luck and I will close the question.
Customer: replied 9 months ago.

May I ask which country did your client apply from and what type of application it was for? (The one who got the decision overturned, by contacting the High Commission directly)

Thanks.

Kind regards.

Expert:  Howard replied 9 months ago.
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Customer: replied 9 months ago.

Thank you.

Customer: replied 8 months ago.

I would like to ask:

Is it common for the HOPO to withdraw on the hearing date or just before the hearing date for out of country appeals?

Or is that more common with with appeals made inside the UK?

Does entry clearance get issued if the HO withdraw on the hearing day for out of country appeals, please?

Finally can you kindly clarify what the following article refers to? is it for appeals made within the UK, where there has been a trend for the Home Office to withdraw appeals?

http://www.freemovement.org.uk/2013/04/10/withdrawn-decisions/

Many thanks.

Expert:  Howard replied 8 months ago.
This appears to be a new question. If this has happened and you want advice or if you want to ask about a hypothetical question then please feel free to ask a new question from my profile page and start it with For Howard Only.

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