Refusal of grant to remain in UK (spousal visa)

[steven7393]

Hi, im really hoping someone here can help

My wife came from Kenya on a work visa (to join military)

I met her and fell in love and we moved in together and got married in november 2010.

She applied for a visa extension in early october 2010. This was refused as the border agency said the army had declined her application.

She had right of appeal so we submitted this in a timely manner and to date this appeal has not been resolved so is still outstanding.

Her visa expired on 1st october 2010 and we got married with COA on 5th november 2010, whilst her appeal was (and still is) pending.

Application for spousal visa was entered on 22nd March 2011

This was refused on 5th May 2011 on following grounds.

She was not entitled to be in country at time of application (though the home office had accepted the appeal but not come to a conclusion, so therefore their decision had not been made.

They also refused as she had completed a life in the uk citizenship test but had not been told about a verbal test. She is from Kenya and speaks perfect english, as it is an ex british colony and english is the first language for many there.

Border Agency state she has not got right of appeal

My questions are as follows.

Is she entitled to right of appeal? I have been told that it is against article 8 of human rights act to refuse her an appeal

Is their verdict wrong based on their assumption she had not made an appeal which is currently outstanding? I believe the main reason they have refused her is because they didnt realise they had not finalised their conclusion to her appeal.

They also say her Article 8 Human Rights reside in Kenya as she has 2 sons there which stay with their grandmother. Can I/We contest this as I have 2 daughters here which desperately need their step mother and this would be a breach of MY human rights as her legal spouse in UK law?

They say we can go to kenya and then apply for entry into uk from there for the purpose of maintaining effective immigration control. I contest this as we are already happy in the UK, we do not have funds to throw away on another application when we have already spent so much money on her internal visa applications.

But the main question is - HELP! What can I do? What action should I take? Are there any case studies you can link me to? Template letters? Recommendations of Action?

All help gratefully received.

Steven

[Greenie]

What stage is the appeal against the original refusal?

[steven7393]

What stage is the appeal against the original refusal?

Its just at its first stage. We got a letter saying she was refused as the army didnt want her, so we quickly appealed that decision on 23rd November 2010 (after we were married on the 5th November) (within stated time limits - they refused her visa just before the marraige, but we already had certificate of approval by then)

I quote 'Please note that we are currently experiencing lengthy delays in processing reconsiderations due to the high volume of requests of this nature UKBA have received over the last 6 months. I would like to take this opportunity to assure you that every effort will be made to consider this request without unnecessary delay, however it is with regret that we are unable to provide you with a specific timescale at this stage'

They have not communicated with us since then regarding it. We have the original letter and figured out that as they have admitted delays and also admitted receipt of appeal, that no news was good news.

What do you think?

Thanks in advance.

[Greenie]

I don't understand what the appeal is. It sounds to me that you have asked the ukba to reconsider not that you have appealed. Was she given the option of appealing to the tribunal against the original refusal to extend her visa?

[steven7393]

I don't understand what the appeal is. It sounds to me that you have asked the ukba to reconsider not that you have appealed. Was she given the option of appealing to the tribunal against the original refusal to extend her visa?

Yes she was given the option of appealing the original refusal to extend her visa.

We appealed on the grounds that at no point did the Army tell her she had been refused, not written or verbally. She was (according to her) just told to improve her skillset and keep coming back to them with her fitness results and to keep in touch with them. The first we heard of the Armys decision to not accept her was when the visa extension arrived.

No documents exist showing the army telling my wife that she was not suitable, though lots of evidence exists showing that she kept in regular contact with her army recruitment centre and that they encouraged her to keep trying.

So we are aiming for the grey area, though the main reason for the appeal was to keep paperwork flowing until we were legally married and able to go for the spousal visa, as we knew ultimately they would say 'sorry but the army doesnt want her'

Hope im being clear and straighforward here, ill answer any questions you have and THANK YOU for your help

[Greenie]

Who did you appeal to-ukba or the tribunal?

[steven7393]

UKBA, the letter I quoted earlier was from them and also said 'I am writing on behalf of the United Kingdom Border Agency (UKBA) to acknowledge your request for a reconsideration of the Secretary of State's decision to refuse your client(s) leave to remain in the United Kingdom' (followed by the apology for delay which I posted earlier)

The reply was from an officer of ICC2 rank/level.

[Greenie]

Were you given the option of appealing to the tribunal?

[steven7393]

Not sure. It wasnt stated on the refusal letter, it said the following.

To [my wifes name]

you applied for leave to remain in the united kingdom to complete the british army selection process but your application was refused

In view of the fact that you were granted leave to remain in the united kingdom to join the british army on 01 april 2010 to 01 october 2010 and it has been confirmed by the army careers information office that your application to join the british army has been withdrawn on 23rd march 2010, the secretary of state is not satisfied that the leave to remain is being sought for a purpose covered by the immigration rules.

your right to appeal against this decision under section 82(1) of the 2002 Act is limited because it was taken on the grounds that you are seeking to remain in the United Kingdom for a purpose other than the one for which entry is permitted by immigration rules (section 88(2) (d))

you should not appeal on grounds which do not apply to you. You must also give arguments and any supporting evidence, which justifies your grounds.

If you appeal, you do not have to leave the united kingdom while the appeal is in progress. However if your appeal is unsuccessful and you do not leave the UK voluntarily, you will be removed to the country or territory of which you are a national.

Signed [name of officer on behalf of the secretary of state] date 26th october 2010.

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We simply replied directly to the person who wrote that with arguments and supporting evidence with clear and polite cover letter.