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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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Hi Tom, Hope you can help. Im Ben, 31, Electrical engineer

Resolved Question:

Hi Tom,

Hope you can help. I'm Ben, 31, Electrical engineer and my wife Sofia (Mexican) had a spouse visa which expired in june 2012. We are married (no kids) and have living together in the U.K since 2010. We applied for ILTR before the spouse visa expired but it was returned to us 4 months later due to a 'problem with payment' upon their instructions we submitted a fresh application.

3 months in we received letters from Capita explaining Sofia was an overstayer with no rights to be in the UK, all appeal rights were exhausted, she must leave immediately etc etc. We contacted Capita who told us not to worry as the application was being processed.

6 months later we enquired into the progress of the application..We were told the application was returned to us (4 weeks after receiving it) to an old address!. So we had no idea it had been returned. UKBA were kept up to date with our house moves and could not explain this. We believe that as 28 days elapsed, we missed the boat to re-apply.

We took UKBA's advice on the phone and requested all documents back twice from ukba and capita (waiting 40 days) but no reply. An immigration consultant explained Sofia's case is now with the removals team and has no appeal rights. She has no option but to leave the uk to re-apply unless we wish to begin a lengthy high court battle with them.

The Mexican consulate called UKBA today to enquire as to the whereabouts of our documents. The docs were 'posted' two weeks ago. We are assuming they now officially 'lost'

Sofia needs rights to work before august as her company are holding her job for her. A consultant tells us our application has almost certianly been denied (although we have no documentation telling us this) He recommended she leave the U.K to Mexico and apply for a second spouse visa. While this is not ideal, it is relatively straight forward for us to do this. We are told this could happen in 2 months.

An 'immigration barrister' company in London has claimed that they can pretty much guarantee that discretionary leave to remain be granted in approx. 8 weeks if they build a case outlining the failings of UKBA and threaten them with legal action accordingly. (based on our specific details)

As time is of the essence, have you experience of the DLTR being granted in these circumstances and in this sort of time frame? is this even genuine? what are our chances? and would you foresee any issues going down the mexico route applying for a second spouse visa? Are they legally obliged to grant entry clearance? We don't want her to leave the UK and a quick legal intervention if possible would be ideal.

Many thanks for you help Tom.

Regards,

Ben
Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi

I see that you have requested me.

May I get back to you tomorrow please?

I am not at home tonight..

Kind regards

Tom
Customer: replied 1 year ago.

Hi Tom,


 


Yes of course.


 


Many Thanks


 


Ben

Expert:  Thomas replied 1 year ago.
Hi

Thanks very much Ben

Tom
Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

There are no easy choices with this one Ben, sorry to say.

Whilst the manifest failings of the UKBA do give you one fairly good option to apply in country on the basis of outlining the UKBA’s negligence, the problem is that although it is probably (though not certain, despite what you have been told) likely to be approved it is the type of application that I can see taking a while.

This is because you will allege specific acts of negligence by the UKBA and they aren’t likely to just admit these without detailed checks. Therefore in addition to checking the eligibility of the application itself they will also have to check the previous history of the earlier applications and what they have done with them. In my experience this tends to result in further delays and drags out determination of the application.

The other option that you have is for her to return to Mexico. The most recent processing times that the UKBA have for mexico are outlined here:-
http://www.ukba.homeoffice.gov.uk/countries/mexico/processing-times/?langname=null

You will note that 100% were decided witin 60 days and 75% within 40 days. However, the data is only based on 4 applications so it’s not a great sample size. However, this is not necessarily a bad thing, I would rather they had a small amount of settlement applications to consider as opposed to a large number.

If you are able to see a uK immigration solicitor for them to check your application/supporting evidence for you and also write a covering letter explaining the earlier misdeeds by the UKBA which have contributed to the overstay and your wife wis able to leave very very soon then I would say that it is likely that an application submitted in these circumstances from Mexico would probably get approved quicker than one submitted in the UK whilst she is an overstayer.

However, if you cannot see a UK immigration solicitor before she goes OR she cannot return quickly then I would go with the first option.

I regret that I can give no guarantee thought, as you doubtless know now absolutely nothing is certain with the UKBA in it’s present state. You’re going to have to take your chances and hope either way. There is no question that she will ultimately get further leave to remain it’s just difficult to predict how long it will take given the convoluted recent history.

I am sorry that I cannot be more definitive.

Please remember to RATE my answer OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE or above if you are satisfied that you have received the correct legal advice (even if it is not the answer you wanted to hear), otherwise I do not receive any credit for answering your question.

If you are not willing to rate my answer as OK SERVICE, GOOD SERVICE OR EXCELLENT SERVICE then allow me to assist further by replying asking what clarification you require rather than rating my answer at levels below.

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 1 year ago.

Tom,


 


Thanks for your concise reply. We have arranged replacement passports and fingers crossed everything will be sorted out in Mexico, Sofia is due to fly out next week.


 


Many thanks,


 


Ben & Sofia

Expert:  Thomas replied 1 year ago.
Okay.

Best of luck with it. It's a difficult situation but let's hope the UKBA surprise us.

Just make sure you submit comprehensive supporting documentation.

Thanks Ben. Please remember to rate my answer.

Kind regards,

Tom
Thomas, Lawyer
Category: UK Law
Satisfied Customers: 6592
Experience: BA (Hons), PgDip, Practising Solicitor
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