US Wife/UK Husband facing Appeal Tribunal - Please Help!

[fullofhope]

Hi - great to find such a helpful and informative site. I'm hoping you can help us. No....I'm BEGGING!

It's rather a long story, but I'll try and be brief and keep to the important bits.

I came into the UK on a fiance visa in 1998. The plan was to marry Mr. X and then live in the UK permanently. Unfortunately, Mr. X and I hit some hurdles along the way (a few affairs on his part etc....). We decided to postpone the wedding whilst we worked things through. On the suggestion of someone at the HO, we applied for an Unmarried Partners Visa. They took 1 year to decided/reject it. Their reason for refusal was vague, to say the least. On the recommendation of our lawyer, we appealed against their decision. The appeal was filed in July 2000. In November 2000, Mr. X and I were married. We immediately told our lawyer of our change in status and instructed him to inform the HO and let us know what we needed to do next.

Our lawyer said that the HO told him that because I still had an appeal pending I could not apply for a spouse visa - instead, I would have to wait for the appeal to come to court. I know...it doesn't make sense, does it? But that's the HO for you! I should also point out that I was assured that I was still in the UK legally as the appeal was still pending.

Anyway, in 2001 another affair on the part of Mr. X came to light. We tried, in vain, to work things through again but I soon found out he never stopped seeing his mistress despite his claims it was over. By 2002, I'd had enough and filed for divorce. While the divorce was being sorted out, Mr. X and I were living separate lives but in the same house. Obviously, I wasn't allowed to work all this time, so he was supporting me financially. During this time, I met Mr. Right. I was already planning on moving back to the States, but Mr. Right threw a spanner into the works. My divorce from Mr. X was finalised in October 2002 and Mr. Right and I married in December 2002.

On the advice of my solicitor, we filed for my spouse visa. He assured me that I was still legal in the UK because of the appeal from 2000. We received a rejection letter on my spouse visa in August 2004 on the grounds that I am here unlawfully. (????). It appeared that they didn't take into consideration my previous surnames and/or failed to realise that I had filed an appeal against their decision in 2000.

My passport was not returned with the rejection letter and letters from my lawyer to the HO regarding it's whereabouts have gone unanswered. I still don't know where it is.

At no point was either my husband or myself called for an interview. No one from the HO contacted us to clear up any concerns/questions.

In October 2004, we met with our local MP. He expressed great disgust at how my case had been handled and promised to do everything he could to help me. He finally got to work in July 2005 after numerous phone calls and letters from me asking about any progress. He phoned the MP Hotline to query my previous surnames and was told the HO had no records of me prior to being Mrs. Right. In other words, my appeal from 2000 seemed to be nonexistent (although I have copies of everything).

Knowing how our situation is affecting both my husband and I (financially and mentally), my MP pushed and pushed to get my appeal brought forward. The good news is, he was successful. I received a bundle of my own paperwork on Friday with a letter from the HO saying that my case was being forwarded to the Asylum and Immigration Tribunal. Apparently, they will be in touch soon. Hurrah!!!

But here's the strange bit - included in the bundle of paperwork they sent me was copies of my appeal submitted in 2000 with my previous surname on it (yeah...that surname which the HO told my MP they knew nothing about) AS WELL AS a letter from my lawyer to the HO dated July 2001 which asks about the status of my appeal as well as informing them that Mr. X and I were married and wanted to go forward with a spouse visa. The letter also states that my lawyer had been trying to get in touch with the HO about my situation but had not received any reply to his letters or phone calls.

So now the panic sets in.

1. What are my chances of succeeding in a tribunal? All the information I was given by the HO and my lawyer led me to believe I was here legally. Obviously, the HO think otherwise - either that, or someone at the HO didn't do their job properly when deciding my spouse visa application and the HO don't want to admit their chicken-up.

2. In the appeal against their refusal on my recent marriage visa application, my lawyer cited Article 8 of the European Human Rights Convention and also correctly states that my husband and I are part-time carers for his invalid mother. Can we argue this at the tribunal hearing? Apart from his mother, we don't quite understand how they expect us to up and leave the UK when we are both settled here, my husband has a stable job and family life and neither of us have anything waiting for us in the US - no home, no jobs, no car, no money - living on one small income in the UK has left us in miserable debt and struggling to make ends meet. If we were forced to the US - what are we supposed to do? Bearing in mind I haven't worked for 8 years (not out of choice, trust me!) it's not as if I'm going to just waltz into a good-paying job the minute we get off the plane. As it is, having my lawyer represent me at the tribunal will cripple us financially. This whole situation has caused both of us great stress and financial problems over the years. Being sent back to the US will make it worse.

3. What happens at a tribunal hearing?

4. Could we argue incompetence on the part of the HO for mishandling my case over the years?

5. Do letters of recommendation help? My MP has kindly offered a letter for the tribunal and I can obtain many others from friends/family here. Likewise, I may be able to get a letter of recommendation from someone in a very important position in this country (sorry..I can't say who).

6. If they reject our appeal and send me/us to the US, would I be able to apply to come back to the UK on a spouse visa from there? Or from another country, for that matter?

I'm absolutely bricking it, here. I can't sleep or eat. I'm crying all the time. I found it surprisingly easy to put all this away while I waited and waited. But now the day has come for me to finally have a 'voice' and be heard, I'm scared to death. I knew this day would come, don't get me wrong - but I wasn't expecting is so fast.

I don't know what we're going to do if they deport me. Put me on a plane and just drop me off at some random destination? I have nothing in the US anymore - I've been here for 7 years now and any shred of a life I had left there is gone. Then there is the matter of my husband getting a work visa for the US but we'll cross that bridge if/when we come to it.

Any advice or help would be so appreciated and welcome. If any further info is needed, I'm here!!!!

Thank you!

fullofhope (and Mr. Right)

[John]

If I read all that correctly, after you married Mr Right in December 2002 you applied for a spouse visa and that application was rejected and you appealed against that rejection.

Firstly can I ask, the application for the spouse visa, when was that made? Do you know when? Was it in March 2003 or before? Or later than March 2003? I ask that because a change to the Immigration Rules came into force on 1st April 2003 which might have an effect here.

Also, you appear to be looking upon this as a live in UK, or live in USA, situation, but there is clearly another situation that might be in play here. That is, you might simply be required to go back to the USA and apply for your spouse visa there. That is, fly back to the USA, submit your application for a spouse visa, hopefully get that visa, and then you fly straight back.

I make that point because the change to the immigration rules that came into force on 1st April 2003 stopped quite a few people applying for their spouse visa in the UK, and simply insists that their application is made in their previous country. For example (and admittedly not your circumstance) if someone had come to the UK as a visitor in say January 2003 then got married here, then applied for their spouse visa in April 2003 or later, that application would be rejected (in all except very exceptional circumstances). Simply the Government had had enough of people trying to bend the rules and therefore tightened up the procedure.

So if your appeal does end up failing, "just" fly back to the States and apply for your spouse visa there. You could well be out of the country just a week or two.

having my lawyer represent me at the tribunal will cripple us financially

Seriously consider withdrawing the appeal, getting your passport back, flying to the States and then make a fresh application for the spouse visa. Probably a lot cheaper and quicker.

[fullofhope]

If I read all that correctly, after you married Mr Right in December 2002 you applied for a spouse visa and that application was rejected and you appealed against that rejection.

Firstly can I ask, the application for the spouse visa, when was that made? Do you know when? Was it in March 2003 or before? Or later than March 2003? I ask that because a change to the Immigration Rules came into force on 1st April 2003 which might have an effect here.

Thank you so much for your quick reply, John!

Yes, Mr. Right and I married in December 2002 and I filed for my spouse visa in February 2003. We received the rejection letter in August or September 2004.

Also, you appear to be looking upon this as a live in UK, or live in USA, situation, but there is clearly another situation that might be in play here. That is, you might simply be required to go back to the USA and apply for your spouse visa there. That is, fly back to the USA, submit your application for a spouse visa, hopefully get that visa, and then you fly straight back.

I was under the impression that if my upcoming appeal fails, then that's it. I've got no chance of ever returning to the UK. When they rejected our spouse visa application in 2004, the accompanying letter stated that I would be detained/deported unless I filed an appeal. Somehow I got the idea in my head that after one is deported, they are generally not allowed to return to the UK at all.

So if your appeal does end up failing, "just" fly back to the States and apply for your spouse visa there. You could well be out of the country just a week or two.

Seriously consider withdrawing the appeal, getting your passport back, flying to the States and then make a fresh application for the spouse visa. Probably a lot cheaper and quicker.

It sounds like an excellent and appealing plan. My parents would be all too happy to pay for the flight and put me up whilst I wait. Any opportunity to see me and all that (it's been years!). The trick is finding out where my passport is. The HO have been less than helpful in that department.

But my concerns are - will a British office in the US not correspond with the Home Office here and find out my history? Won't it 'look wrong' if it's found that I pulled out of an appeal to fly home and apply AGAIN for a spouse visa? (especially if my first spouse visa was denied on the grounds I am here illegally). It just sounds dodgy to me - and I've tried my hardest to play by the rules as it is. I certainly don't want them thinking I'm being deceptive and trying to work my way round the system.

If flying back to the US to re-apply as a spouse is a perfectly normal and legal option, then I'll do it. If I phoned the HO and asked them about this option, would they advise/recommend/approve of it?

Thanks again, John. I just may sleep a bit better tonight.

kindest regards,
fullofhope

[John]

There are quite a number of topics on this Boards from people who have lost appeals, or withdrawn them, then flown home, applied for a visa and then come back the UK reasonably quickly. That includes failed asylum seekers etc .... probably a worse circumstance than you if only because then probably entered the country illegally, and you did not.

The British Consulate in the USA will probably want to get confirmation from the UK that there are no outstanding matters but apart from that the history will not get in the way. Not suggesting that you would do otherwise but do ensure that the VAF2 application form is completed accurately and truthfully, and that will certainly ensure that details of your UK immigration history are disclosed.

The form VAF2? You can download a copy by clicking here. Also look at leaflet INF4.

I give you the link to the VAF2 form but in fact when you are in the States you can complete that online, but at least you will know the sort of questions that will come up.

Don't skimp on the evidence. There are still tests to pass .... financial .... accommodation ... "evidence of contact" ... detail in the INF4 leaflet. For example, a spouse visa has a "No recourse to Public Funds" restriction, so proof needs to be supplied to show that you will not need to claim those funds that are prohibited.

Obviously the matter of your passport needs sorting out. Is it still valid, or has it expired?

Hope it all works out.

[fullofhope]

There are quite a number of topics on this Boards from people who have lost appeals, or withdrawn them, then flown home, applied for a visa and then come back the UK reasonably quickly. That includes failed asylum seekers etc .... probably a worse circumstance than you if only because then probably entered the country illegally, and you did not.

Unbelieveable. I do have to wonder why this option was never offered to me by my solicitor, the HO, the citizen's advice bureau, my MP etc... is it some kind of Immigration loop-hole (for lack of a better term)? If I had known it was even a possibility, I would have flown back 3 years ago and sorted this out.

The British Consulate in the USA will probably want to get confirmation from the UK that there are no outstanding matters but apart from that the history will not get in the way. Not suggesting that you would do otherwise but do ensure that the VAF2 application form is completed accurately and truthfully, and that will certainly ensure that details of your UK immigration history are disclosed.

Again, unbelievable. Just out of curiosity, why doesn't my history of applications/appeals/refusals enter into the equation when I'm applying from outside the UK?

Thank you for the links. That's my nights reading sorted!

Don't skimp on the evidence. There are still tests to pass .... financial .... accommodation ... "evidence of contact" ... detail in the INF4 leaflet. For example, a spouse visa has a "No recourse to Public Funds" restriction, so proof needs to be supplied to show that you will not need to claim those funds that are prohibited.

None of that will be a problem at all. Husband has a job that has kept us afloat for 3 years and despite being poor, we do get by. Do letters from friends and relatives stating our marriage is genuine help?

Obviously the matter of your passport needs sorting out. Is it still valid, or has it expired?

It's still valid. I just don't know where it is. When the HO sent my refusal letter in August 04, my passport wasn't with the documents. My solicitor sent a letter to the Cardiff office (where my case was decided) asking where it was but received no reply.

A couple more questions, if you don't mind, John.

1. If/when I pull out of the appeal, will they give me time-line to leave the country?

2. Who the hell can I contact to get my passport back? The HO are less than helpful. I'm almost tempted just to get a new one from the American Embassy.

Thanks again, John. Your help and advice may have just turned this round for us!

If you lived next door, I'd be baking you cookies right now.

fullofhope

[John]

Using your numbering :-

1. Yes, but in practice this should not be a problem. Given that you cannot leave without your passport, an undertaking by you to leave within say seven days of receiving your passport back will not cause a problem.
2. Unfortunately I think IND, part of the Home Office. Make it clear you are minded to withdraw the appeal but first need confirmation that they still have your passport, and will return it promptly if the appeal is withdrawn. Or if they confirm they have lost it, that confirmed in writing, to assist you getting another from the US Embassy.

Your history? It will not be ignored but in practice should not cause a problem. Seems to me the greatest problem is the length of time IND has taken to deal with the applications and appeal, and that is not your fault.

Husband has a job that has kept us afloat for 3 years and despite being poor, we do get by. Do letters from friends and relatives stating our marriage is genuine help?

Put together an evidence folder. Provide as much proof as you can that the marriage is real. Correspondence addressed to both of you at the same address, etc etc. Letters from your neighbours and family cannot do any harm.

Finally, why has no one mentioned you simply going back to the States and applying there? Not for me to say, except to me it is the obvious thing to do, but that is only my opinion.

[fullofhope]

Your history? It will not be ignored but in practice should not cause a problem. Seems to me the greatest problem is the length of time IND has taken to deal with the applications and appeal, and that is not your fault.

tell me about it. 7 years I've been dealing with this and waiting on them! Grrrrr! I am, however, still failing to understand how applying from the UK vs. applying from the US will have a dramatically different effect. In your opinion, what are the advantages (from a HO point of view) of people applying from their own country? Is it a work-load issue? (ie; clearing the back-log at the HO in the UK)

Finally, why has no one mentioned you simply going back to the States and applying there? Not for me to say, except to me it is the obvious thing to do, but that is only my opinion.

Your guess is as good as mine, John. Not one single person has ever suggested to me that flying to the US and applying from there is an option. As I said before, if I had known I would have been on a plane years ago. My lawyer certainly kept schtum.

One more question (sorry, but you seem to have more answers than anyone else I've ever spoken to about this). How do you rate the Immigration Advisory Service? Are they reasonably reliable when it comes to giving advice? I'm going to make an appointment with them to see what they have to say about it all and am wondering how....I don't know....trustworthy they are.

Thanks again, John. You've been stellar.

fullofhope

[John]

what are the advantages (from a HO point of view) of people applying from their own country? Is it a work-load issue? (ie; clearing the back-log at the HO in the UK)

I think IND and the Government simply got fed up with people bending the rules and at the time the change was made back in 2003 saving themselves a lot of money.

For example, anyone applying abroad for a settlement visa, either a fiancé(e) one or a spouse one, would need to pay an application fee abroad of £260, or rather the equivalent in local currency. However if the person was a "visa national", the sort of person who always needs a visa to enter the UK, the fee for getting a visitor's visa was something like £36, or again, the equivalent in local currency.

Couple that with the fact that there were no visa application fees in the UK you can see that either :-

• the person pays £260 and does it all properly
• the person pays £36 and "cheats" the system

And even better for non-visa nationals who did not even need to get a visitor's visa before arriving in the UK.

So the UK Government clamped down and stopped those who had come to the UK on a visa of six months duration or less (apart from a fiancé(e) visa) from converting that into a spouse visa in the UK. That person now needs to go back and apply for their spouse visa and pay £260 for the privilege.

In fact all this has moved on somewhat. There are now in-UK visa fees and also it is now impossible for holders of ordinary visitor visas to get married in the UK (they would fail to obtain the needed Certificate of Approval to Marry) but nevertheless the immigration rules continue to insist that some applications are made outside the UK rather than within it.

If you have not already done so have a look at Visas & Entry Clearance from the British Embassy, Washington, website. You will see lots of details there .... including the US$494 fee! Ouch!

And the evidence to be produced. That is detailed on this webpage.

As regards your husband's British passport, if he is with you in the USA, then fine, just produce his passport. Alternatively if he has stayed behind in the UK, he should go to a Solicitor and get a certified copy of his passport, and you should produce that instead. For a visa application that certified copy should include obviously the name and pic page and also any page that contains any visa or stamp.

Note your husband's birth certificate is required and that must be a full certificate, the type showing his parent's names .... rather than the Short version that does not. If he does not have a full birth certificate readily available then he can get one either from the Register Office where his birth was registered all those years ago, or order by post over the internet.

How do you rate the Immigration Advisory Service? Are they reasonably reliable when it comes to giving advice? I'm going to make an appointment with them to see what they have to say about it all and am wondering how....I don't know....trustworthy they are.

No personal experience but I suspect that you will get accurate advice from them.

[fullofhope]

John, somehow you have managed to give me MORE information in the past 24 hours than I ever received from the Home Office, my solicitor or any other organisation in the past 7 years.

Thank you, from the bottom of my heart.

Mr. Right thanks you, as well - he nearly hit the floor when he read our conversation.

Kindest Regards,

fullofhope