Legal advice right?

[louloukla]

I have just been to see a legal advisor (although not a solicitor) with regards to my husbands case.

He basically told me I was 'stuffed' because they had refused him at AIT on paragraph 320 11. He said that it was because the judge had said that it was a fact and that we wouldn't win the case at upper tribunal as that rule has been made so that it would not be interfering with human rights to refuse on that rule.

The advisor also told me that I would not be able to re-apply for a visa for my husband until he had left the country for 5 years due to the court refusing.

My husband left the UK with me at our expense but has fustrated the intentions of the immigration rules, is it true that we would have to wait that long, even though we have a 10 month old baby?

The legal advisor also told me that it is best if I go and live in my husbands country, but if I do this will we be able to apply for him to come back to UK as immigration might just say that I had been living there so I should continue to live there and not in my country, egland?

[mrlookforward]

Exactly how did your husband fustrated the intentions of the immigration rules,?

[Wanderer]

Exactly how did your husband fustrated the intentions of the immigration rules,?

Just read the OP's other posts, would have been less frustrating to continue on the older thread mind...

Basically it doesn't look good....

[louloukla]

He had enbtered the UK illegally with a fake passport (with a different name), which he gave to police when they caught him in 2005 (although he did confess to them that it was fake before handing it over) and also he did not comply with reporting regulations.

I have credit in the and have made this quite clear but it seems to make no difference. If I was to go and live with my husband in his country (as we have a baby and he is missing out on seeing our son grow) I would need to declare myself bankrupt as if I got a job in his country it would bearly cover the cost of living so would not cover my credit in the UK.

If I were to declare myself bankrupt and went to live with him for a few years and then we applied again for him to come to the UK as my spouse would that affect the decision and would the immigration officer say I have no reason to return to the UK, bearing in mind that I am English and have the whole of my family in the UK?

Sorry I am in a dilemma.

[mrlookforward]

Admitting to police that the passport was fake is no credit, when he already duped immigration with a fake passport. Your case seems like a difficult one. All you could do it take a second opinion from a different advisor. But in all probability, it will be difficult to get a positive outcome.

[Wanderer]

Admitting to police that the passport was fake is no credit, when he already duped immigration with a fake passport. Your case seems like a difficult one. All you could do it take a second opinion from a different advisor. But in all probability, it will be difficult to get a positive outcome.

Think the OP means she was credit (card) debts, not that credit was deserved for handing in the stolen identity.

Damage has been done tho, ID theft is a crime and your husband is lucky he's not in jail, as indeed he might have been had he not left voluntarily.

You're going to have to make the best of this, ie in his country, or another EU state, which seems to be unlikely to happen if he's transgressed EU law as well.

[louloukla]

Is another EU country an option?

As my husband has his sister living in France and im sure she will help us.

Will an application be refused due to by husbands immigration history in the UK?

Also are EU immigration rules simular to UK and will it be hard to apply?

[mrlookforward]

Yes, another eu country is an option. France, ireland or anywhere else. But you will have to be living in that eu country exercising treaty rights before he can be granted an entry, or you should be entering with him with the intentions of exercising treaty rights.

[Wanderer]

Yes, another eu country is an option. France, ireland or anywhere else. But you will have to be living in that eu country exercising treaty rights before he can be granted an entry, or you should be entering with him with the intentions of exercising treaty rights.

Plus because the OP's hubby committed an EU-wide transgression, with SIS etc, we cannot assume he has/has not an EU-wide ban....

[mrlookforward]

I am no expert at this and cant say anything with certainty, but as far as I know UK PNC is not yet connected to SIS, but it will be in future. so....

but i know for a fact that his fingerprints wont be on eurodac, unless he applied for asylum in any of the eu states.

[louloukla]

Ok, so does that mean that we would have to declare that he was refused entry clearance in the UK and the reasons?

Also how long would I have to be living in a different EU country before I could apply for him to join me?

So does Ireland have a different immigration system than to that in UK?

[mrlookforward]

Ok, so does that mean that we would have to declare that he was refused entry clearance in the UK and the reasons?
You just provide the information they ask for in the application form. No need to tell something they dont ask.

Also how long would I have to be living in a different EU country before I could apply for him to join me?
One day is enough, if you are exercising treaty rights, in general meaning that you are working, or studying and self sufficient

So does Ireland have a different immigration system than to that in UK?

Every country has their own immigration system, but spouses of eu citizens are dealt with according to eu directive and not according to a country's national immigration law. But there are some minor differences as to how each country interprets the requirements to grant a visa.

[louloukla]

Thanks for your help guys!

We are going to get a solicitor and apply again in Dec so will keep you posted as to the outcome!!

[HRY2005]

Admitting to police that the passport was fake is no credit, when he already duped immigration with a fake passport. Your case seems like a difficult one. All you could do it take a second opinion from a different advisor. But in all probability, it will be difficult to get a positive outcome.

not that credit was deserved for handing in the stolen identity
ID theft is a crime and your husband is lucky he's not in jail, as indeed he might have been had he not left voluntarily.

I dont think, it was a case of a stolen Identity, rather it was false identity (forged passport) and from the OP's other posts, the offence was committed in 2005 before he left voluntarily in 2008. The OP might find it really difficult at this stage, I think he should have consulted a lawyer before they left the UK to make an application abroad.

[louloukla]

We did seek legal advice before we left and the solicitor told us that it is best to leave the UK and then apply from my husbands country, was thids the best thing or should he have stayed in the UK to sort out with a solicitor here?

Sorry I am new to this can I ask what 'OP' is and what they might find difficult?

[HRY2005]

We did seek legal advice before we left and the solicitor told us that it is best to leave the UK and then apply from my husbands country, was thids the best thing or should he have stayed in the UK to sort out with a solicitor here?

Sorry I am new to this can I ask what 'OP' is and what they might find difficult?

In my opinion, with all of this revelations, it would have been better if he had stayed back and apply to get married in the UK and make his application from here. Why I said it might be difficult was because he's already outside the UK, which make it more difficult fo fight unlike when he's here. Did he disclose everything he's done to the solicitor? bcos it is very good to disclose all what you've been through to solicitors when seeking advice. (so they have the true picture of your case)

OP means "Original Poster" whicn is you who made the first post. I would advice you continue to seek legal advice and see if he's able to re-apply. (I'm sure he's able to re-apply but the 320(11) issue is my only worry), keep trying and dont give up.

Good luck

[mrlookforward]

HRY,

The problem with that would have been that it would have been an application outside the rules, and with no other mitigating circumstances like severe hardship to kids etc if he was made to leave, his application would have been refused without rights of appeal anways.

Any application when the applicant has no valid LTR on the date of application, gets no right of appeal even if its on Human rights grounds.

[HRY2005]

HRY,

The problem with that would have been that it would have been an application outside the rules, and with no other mitigating circumstances like severe hardship to kids etc if he was made to leave, his application would have been refused without rights of appeal anways.

Any application when the applicant has no valid LTR on the date of application, gets no right of appeal even if its on Human rights grounds.

I agree with you but not 100%. I have seen a lot of people in this kind of situations and they were finally granted, many of them after a long time though. In the OP's case, she's a BC which will make the child a BC too. Her husband stand the chance of not being removed as they might not want to separate them (after marriage). A recent appeal judgement question the idea of asking BC's to go live abroad for effecting immigration control. (I'll look for it and post it)

An application outside the rule is specifically asking the SSHD to use his discretion. I read a story of someone in such situation that was refused with no right of appeal and the HO did not initiate a removal direction against him. His solicitor took it up and asked the HO to initiate a removal direction on which he's entitled to an appeal right. His appeal was allowed and he got his status.

A lot of people are getting themselves sorted outside in this way and dont ever say its not possible.

[mrlookforward]

I am not saying that its not possible, and you are right, people do get granted this way. I personally know people who got granted, and some who were refused, even removed even when they had kids.

So basically it depends on an individual case and how good an advisor makes an application. I think in the OPs case, advisor wasnt clever to plainly suggest them that out of country application was the best way forward.

[HRY2005]

I am not saying that its not possible, and you are right, people do get granted this way. I personally know people who got granted, and some who were refused, even removed even when they had kids.

So basically it depends on an individual case and how good an advisor makes an application. I think in the OPs case, advisor wasnt clever to plainly suggest them that out of country application was the best way forward.

I agree on that mrlookforward, that was the exact point I was making. every case with its own merit. Just like you have mentioned, the solicitor was not very clever for advising them to go abroad, given the circumstances of the case. (may be he's not properly briefed as to the extent of the case)

People are always quick to say "go abroad" but in my opinion, individual cases needs to be assessed to determine its chances of success abroad or in-country. I'll rather spend 2 years waiting than face separation from my family.

Overall, if there's no underlying issues, going abroad remains the best option. My friend returned to the UK in six weeks but his only problem was overstaying for 2 years, no deception or anything else, he applied on the same passport as his first visit visa. Thats quite different from someone with a criminal record, arrested for working illegally with forged documents and so on, (He might find it hard to return)

I hope the OP get a good solicitor with some ideas in his head, all hope is not lost but they need a very good solicitor.

Good luck

[mrlookforward]

I totally agree with you HRY.

[HRY2005]

Hi here is the link to the article 8 judgement that I mentioned in my earlier post above http://freemovement.wordpress.com/2010/ ... -case-law/.

This case was against a convicted rapist

[haze]

Hi louloukla

I would strongly advise you to find another immigration advisor because the answers that you were given seem to be nonsense. First the rule 320(11) compatibility with the human rights convention and its article 8 is very questionable and thanks to the lack of a case law regarding rule 320(11) the ECOs keep refusing under that rule all over the world and get away with it so far. Secondly 320(11) refusal has no time limit and technicaly speaking there is no mechanism for an appelant to return to the UK once the refusal was justified in immigration courts thus I dont know how your adviser came up with the idea that ban would lapse in 5 years. Time limited bans are implemented in rule 320(7b) and refusal under 320(11) is permanent refusal and as a such cannot be compatible with the human rights convention. I know people that were refused thrice under 320(11) and going now for third appeal and they have been into this process for over 2 and half years. So i would advise you to fight 320(11) until the last instance if you could financialy support the whole process because you cannot let the refusal stand as every further application will be refused again and again under the same rule as circumstances in your husbands case will never change regarding his poor immigration record.
I am in a similar position as your husband, entered the UK on false documents but was never apprehended. I left on my own will after 4 years at my own expense. I applied for spouse visa and got refused under 320(11), appealed and lost it at AIT , asked for permission to appeal to the upper tribunal and permission was granted for the reasons I said above.