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Thomas
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6445
Experience:  BA (Hons), PgDip, Practising Solicitor
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Ive been dating my filipina GF for almost 2 years online.

Resolved Question:

I've been dating my filipina GF for almost 2 years online. I was about to fly to the philippines in May and then sort a fiance visa; however, it appears that she was married before to a US citizen - lived very briefly in the US. The marriage was quite turbulent and, following a domestic disturbance, she pleaded guilty to misdemenour battery/strike offence. She was jailed for 14 days. As her husband didn't want her back, she applied to return to the Philippines - even though the judge asked her repeatedly if she wanted to stay! Anyway, we are both concerned that this might affect her UK visa application. Can you help, please?
Submitted: 2 years ago.
Category: UK Law
Expert:  Thomas replied 2 years ago.

Hi
Thanks for your question.
To enable me to answer your question could you please respond to the following:-
1. Are you asking with respect to a visa application that she would make on the basis of you relationship
2. Is she still married
3. If so, when is she to divorce
Kind regards.
Tom
Customer: replied 2 years ago.
1. Yes
2. The marriage was very brief- she was very young and naive. She is still married technically. Her husband had to file a court petition for divorce before the US could release her from the country as, technically, she had the right to stay. But her husband filled out a divorce form and the marriage was so short, it really should have been an annulment so the case was dismissed. My GF is in touch with a US attorney. She is looking to get an annulment. I helped her complete the form today. Not sure how long the process will take and whether it should really be a divorce now as 2 years has drifted by???
Expert:  Thomas replied 2 years ago.
Hi,

Have you cohabited with her for a period of two years to date? I presume, but please confirm, not.

Do you intend to marry her once divorced and apply for settlement after that?

Tom
Customer: replied 2 years ago.
We have been dating ONLINE for two years. Plenty of phone calls, skype records etc but we have not actually met yet. I was planning to fly to the Philippines next month for a 3 week holiday...and then sort the visa. My GF is a very decent woman but was very scared of losing me because of the culture of the Philippines, hence she didn't tell me the full story. She has been carry a great deal of weight on her shoulders! Anyhow, our chief concern is a visa rejection due to her criminal conviction in the USA... It has been 2 years since her conviction and I doubt she should have been given much more than a police caution in the UK - for a very minor first offence. She was, however, in a foreign country with no representation and very scared...so she unwisely pleaded guilty. She served the full 15 day sentence- as she had nowhere to go had she been released early. She was then moved to various detention centers until she asked to go home to the Philippines.
Customer: replied 2 years ago.
And YES - we plan to marry as soon as possible..
Customer: replied 2 years ago.
I don't know if it helps but I asked her about the argument that led to the physical contact. She says it was an accident. She said they had been arguing and she wanted to be alone to cool down but her persisted in following her to continue the argument. He tried to grab her but she pushed him away and he fell and hit his head... The Florida PD were then involved...
Obviously, this is only her side of the story...but if true...can anyone imagine someone being jailed for 15 days for this? Seems a bit harsh to me...
Customer: replied 2 years ago.
BTW - they lived in Colorado but he was a HGV driver and she traveled with him on the road - hence the Florida PD involvement...
Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your reply.

If you have not lived together for a period of two years then I’m afraid she would not be eligible for an unmarried partner’s visa to come here now to settle with you.

Therefore she would have to apply on the basis of your married or impending marriage once you are in the UK. Obviously to do either she would have to get a divorce or annulment of her current married. This should be your primary focus.

Once divorced, you can either marry where she is and then apply directly for a spouses visa. Once application, one application fee.

Alternatively, you can apply for a fiance visa so that she can come here specifically for the purpose of marrying you. Once married she would then have to apply for a spouses visa (settlement). Two applications, two application fees.

The eligibility criteria is largely similar for both applications.The advantage is that if your fiance visa is refused then you are not married. If you marry and you spouses visa application is refused initially and then on appeal then you are stuck being married but in different countries.

Here is the criteria you would need to fulfill for a fiance visa, as I say the criteria is largely the same for a spouses visa. If you meet this you will almost certainly not be refused a spouses visa:-

• You plan to marry within 6 months of her arriving here (egg. statements from you and others, possibly a booking of a church/venue)
• You plan to live permanently together here (statements, correspondence)
• You have met each other before (eg. statements from you both and others, correspondence)
• You can support each other without the need for public funds (bank statements, evidence of income, evidence of jobs available that your husband could do)
• You have suitable accommodation which is owned or lived in only by you or your household and where you and your dependents can live without any help from public funds (tenancy agreement, land registry docs if you your own home)
She will also have to pass and english language test showing she has a basic command of spoken and listening English. She can find out approved test providers in her area by contacting the UK embassy nearest to her

You will need to apply for fiance/spouses visa using form VAF4 which is available for download from the UKBA website

You should consider instrucitng a immigration solicitor to prepare an applicaiton for you (whichever way you decide to do it). You can find local solicitors via:-

http://www.lawsociety.org.uk/choosingandusing/findasolicitor.law


The UKBA is permitted to reject applications likes this on the basis of convictions if it is in the public interest. Given the relatively minor nature of her convictions I would not expect them to reject on this basis. However, when she comes to apply she should disclose the conviction and explain in detail the circumstances and the pressure she was under. It will help hugely if she mitigates the offence as much as possible.

I am sorry that I could not have better news for you. I have to go offline for the evening now and so will probably be unable to answer any follow up question you may have. I will be back online at 1000 am tomorrow morning and will reply immediately.

If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question. You will not be charged any further money for clicking accept.
If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Customer: replied 2 years ago.
FAO Tom: Hi Tom, thanks for the response. You didn't really tell me anything I didn't already know. I was hoping hat you could clarify and present some case-law of previous applicants involving 'criminals' being granted fiance visas etc...so that we have something to fight with. I was also hoping you could clarify where the ECHR intersects with UK law and how one affects the other...
My chief concern is her DEPORTATION from the USA. I asked her if she had been deported and she said YES but this was done AFTER she had filled out a REQUEST to voluntarily return to the Philippines. She still has a copy of the request. The USA authorities, however, did NOT send her back voluntarily but actually deported her - seemingly.
How will this affect her UK fiance application?
Expert:  Thomas replied 2 years ago.
Hi,

The principle of a right to family and private life under the Human Rights Act is such that it overrides most objections on the basis of character under UK immigration law.

The only time the UK government can justify a refusal is where it is in the public interest to deny a person their right to family and private life. This is, in other words, where to permit the person entry would put the security of the UK and it's nationals at risk. That will not be the case here because no resaonable person would say that her conviction is indicative of a person who is a threat to the security of the UK. Thus, her rights will prevail and she should be successful.

Again the fact that she was deported is a bit of a problem but provided that the UKBA accept that you are in a genuine marriage then her human rights will override this as well. Provided you can prove your relationship is that of any other loving marriage and you otherwise meet the eligibility criteria then you will be fine.

I'm not at work at the moment and therefore cannot provide caselaw, but the principle is very firmly establish I can assure you.

Trust this clarifies, please click accept.

Kind regards,

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6445
Experience: BA (Hons), PgDip, Practising Solicitor
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