marriage during appeal pending against fiancee refusal

lena66uk · Post by **lena66uk** » Mon Oct 26, 2009 6:24 pm

Dear all,
I really need your help and advice. Many thanks in advance for your replies. Here is my situation.

I applied for a settlement fiancee visa in June this year. The application was refused under paragraph 290(iii)-intention to live together though I submitted my application with the documents showing that we have been living with my fiance already in the country of my residence for more than 6 months and the only time we were apart was when he had to return to the UK to renew his Russian visas. I appealed against the decision.

Before this I had two refusals for visitor visas in November 2008 and March 2009. I could not apply for a fiance visa at the time because I was married in the UK previously and the divorce was not issued yet.

After getting this refusal and lodging the appeal we got married in Cyprus in September 2009 where we are living since then.

Several days ago my husband ( who will represent me as a sponsor)was notified in writing that the appeal hearing will take place in January 2010.
My question now is:

Will the fact of our marriage be considered by the Tribunal though it took place after the decision was made? If not should I still send new documentation before the hearing?

I was given the right to appeal under section 82(1) of the Immigration and Asylum Act 2002. I've read this section but it is not very clear should it be considered or not.

My husband is going to contact his local MP if it can be of any help...He wrote several complaints to the British Embassy in Moscow. In reply he got a very polite letter with an advice to apply again!

We are really lost what to do. I could return to Moscow and apply for a spouse visa but I don't want to do this because even if this application is to be successful they will definitely make me withdraw my appeal!I applied for a visitor visa from Cyprus. Within a week they asked me to withdraw the application as it seemed to them to be very complicated to make a decision. They didn't forget to keep 80 euros though...

Our original wedding plans were ruined and our lives were turned upside down. We can't make any plans because of this uncertain situation and waiting from one visa to another one. I say nothing about the expense for visa fee, flights, immigration solicitors that were of no help at all.

Your advice will be very appreciated.
Many thanks for your time.

Post by **Casa** » Tue Oct 27, 2009 10:38 am

You won't now be able to apply for a fiance visa as you're married.
The fiance visa is granted to enable you to marry in the UK, therefore if you were issued with a fiance visa this would be invalid and you wouldn't be entering the UK as a fiance but as a spouse.
You may want to seek professional advice over this. Don't you have legal representation for the appeal?

lena66uk · Post by **lena66uk** » Tue Oct 27, 2009 5:22 pm

Hi Casa, thanks for reply.
I know I can not apply for a fiance visa I was thinking of applying for a spouse visa during appeal pending. But I put my reasons why I do not want to do so.
I do not have a legal representative due to a very bad experience with immigration lawyer. It was waste of money...

Anyway shall I wait for the hearing or apply for a spouse visa instead?

Thank you

Post by **Casa** » Tue Oct 27, 2009 7:12 pm

In my opinion...and it's only an opinion (which is why I suggested legal advice), I believe you should apply for a spouse visa. You can apply for this while you are waiting for the appeal on the fiance visa. I can't see how the judge would be able to rule in your favour for a fiance visa as this wouldn't now be valid to enter the UK as you have since married.

lena66uk · Post by **lena66uk** » Tue Oct 27, 2009 7:34 pm

Thanks again Casa!
I was confused thinking how it will be working even if the appeal is allowed. But I read somewhere that after the appeal is allowed they try to make sure that it is still the same visa that is needed. Can they give me spouse visa instead? My fiancee visa was settlement too. Could I come to the UK on a fiance visa and provide my Marriage Certificate to apply for FLR? And the last question please: my husband has his own property but it is still in his ex-wife's name too. She wants to remain in the property and she has to make him a financial settlement. If I apply for a spouse visa what should I put in about accommodation? Last time I provided the land registry deed with both names on it and there was no questions about accommodation.

Thanks a lot for your time

Post by **Casa** » Tue Oct 27, 2009 11:13 pm

I would doubt that they would issue a spouse visa instead of the fiance visa applied for if the appeal is won.
I suspect you would still have to re-apply for a spouse visa.
If the ex-wife's name is still on the ownership deeds and she is still living in the property, you would need a letter from her agreeing to you living there...if you intend to show that as your UK address. You really need separate accomodation if you want to stengthen the application.
I'm doing my best to help you, but you must bear in mind that I'm not a legally trained professional.

ginoT · Post by **ginoT** » Wed Oct 28, 2009 1:39 pm

This is a nasty situation youâ€™re in. It couldnâ€™t be any trickier with appeals, getting married before the appeal, divorces, houses etc etc.. Anyhow hereâ€™s my attempt to help:

1 â€“ why did you marry even though you had a pending appeal? If nothing else it made the appeal irrelevant as you canâ€™t use the fiancÃ©e visa now even if they gave it to you. Second, it stops you from applying on the spouse visa as knowing the Moscow consulate myself very well (an incompetent, unhelpful bunch) they will automatically reject any other application while there is a pending appeal (they recommend applying on a fresh application purely to boost revenues)

2 â€“ regarding whether you should inform the Tribunal or not, I think you should as it is quite material change of events. The tribunal does not have the power to grant visas, it purely revues the decision making process regardless of whether you want the visa or not now. I would continue to fight it out for several reasons including (a) ensuring there is no refusal on your profile (b) setting a precedent in your profile that you will fight poor decisions which should hopefully ensure future applications made by you or for your own family go more smoothly.

3 â€“ MPs: the Moscow consulate treats MP correspondence with disdain. I know, Iâ€™ve done it already + I know an ex-ECO who said so. The best thing your MP can do is complain to the â€œMinister for foreign postsâ€

lena66uk · Post by **lena66uk** » Wed Oct 28, 2009 6:45 pm

Thanks a lot for your letter gino T!!!! It was very useful the information you gave us. We agree with you wholeheartedly. Everything you said is true. And we think that in most cases it is just a money making exercise.

Back to your letter:
We got married in Cyprus while appeal pending because my husband's visa ran out 17 September and he still had to leave as ru visas can't be extended from Russia. Every time we paid 450pounds for 3 months ru visa. We chose Cyprus because I didn't need a visa. You can understand that after they put 3 refusals in my passport I could not go anywhere where visa was required. We got married cos I can not stay in Cyprus for more than 90 days. Now I can being married to an EEA(British) citizen. We can register here now and after they give me Pink slip(1 year permission to stay) I can apply for a visitor visa to the UK and after 1 year residency for any visa including settlement. I can't even think to go back to Moscow and deal with them again! For now at least. We live on compleate dependance on visas for both of us for a year now and every time it is money, flights, etc...

Thank you very much for your great help. I'll follow your advice and will not do anything about new application while the appeal is pending but will try to get legal advice. We'll keep in touch and let you know how it's going

P.S. The MP is Liberal (which is probably not a good idea too...)

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lena66uk · Post by **lena66uk** » Wed Oct 28, 2009 8:30 pm

Thanks for reply Casa, I appreciate your help though you say you are not a professional
I'll try legal advice

ginoT · Post by **ginoT** » Wed Oct 28, 2009 10:33 pm

wow - my god it's even messier than I thought!! and it was bad to start with!

You know going down the EEA route in order to get British residency based on treaty rights does have its down sides - ie you can't apply for citizenship as soon. Years more wait I think. Plus all in it's more expensive than applying for a spouse and finally citizenship. Others here are better qualified to help on all that.

Re: Russian visas, I know you can "arrange" visas including 1 year multi-entry business visas for a fee through a 3rd party agency. I would have done that instead of getting married to help with your man's Russian visa

So where are living now? both of you? How are you supporting yourselves? are you working?

Jan 10 isn't too far away, I would hold out till then, win the appeal, apply for spouse visa from whichever country you are living, and play it completely by the book. It's cleaner, cheaper, and the right thing to do. As soon as you try and work your way around the system, it actually costs more and could work against you. My 2 pence

lena66uk · Post by **lena66uk** » Thu Oct 29, 2009 6:57 pm

Hi gino!

1.We are not going the EEA way. I can't stay in Cyprus where we are living now for more than 90 days. After 90 days I have to leave, get another visa(called pro-visa, not a stamp in the passport, on line application,needed only in the airport), come back again, etc...Residence here gives me the right to apply for UK visas without necessity of going back to Moscow. BHC does not accept applications if you are staying in Cyprus on a short-term permission.

2.My husbands visas were "arranged" through a company recommended by the Russian Embassy in London! 450 pounds each time(3 months) 700 pounds for a year. We did not think we would need it for so long. Anyway, on 1 year visa one can't stay in Russia for the same bloody 90 days at a time!

3. We both don't work in Cyprus. Nothing much I can do here. My husband is retired.

4. Got an e-mail from ECO in Moscow a few minutes ago! She answered because we sent a complaint letter to the consulate. The first complaint was sent to the ECO manager in August this year. No reply. We recently had friends visiting who delivered a new letter with an enclosed copy of the previous one to the Embassy for us on October 21.
ECO(name and surname are given in the e-mail) wrote:

Thank you for your letter(my name, his name). It has been been added to your file.

You of course can re-apply at any time though there is no guarantee your visa will be granted. Address to the refusal letter...make sure you supported all relevant documentation..
and all the same sort of rubbish to fill the page. Though we didn't expect anything else!
Thinking now what to write back to her in reply.?

ginoT · Post by **ginoT** » Fri Oct 30, 2009 9:43 am

honestly there isn't much you can do until the appeal is done. Don't reply for the time being. Only once the appeal is won and you have the visa in your passport, and when you are in the UK, you can get your husband to complain to the Ombudsman and/or your MP can try to get hold of the Minister for Foreign Posts. I would choose the former considering Labour will likely get kicked out of government soonish + your MP is not a Tory. Your complaint can be that the consulate didn't respond promptly or adequately to the concerns you have raised with them

best of luck

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marriage during appeal pending against fiancee refusal