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Posted

:o

Hello Everyone,

I am new to this forum and want to start by asking some advice for a topic i can't see already on the forum recently.

I am a gay UK man with a Thai partner who has visited the UK 3 times in the last 2 years. I have also visited Thailand to stay with him. We applied in Dec 2004 for a settlement visa for the UK as our lawyer advised we met the criteria. It was refused because firstly they didn't believe that his first 2 visitors visas were to visit the UK but were really to come to stay with me (we have photographic proof that he toured with his family on these 2 visits and i think they now accept that partially) and his last visa, a student one , he worked and didn't study. We admitted this breach of the rules . They also doubted we had lived together in "a relationship akin to marriage" for 2 years although they DO now accept this. So we applied again in June and it was refused again on similar grounds. We appealed both and yet the Britsh Embassy have still not sent the papers to the UK.So the appeal is delayed furthur.

Now we have the new civil partnership law coming in this december he can apply in November for this .

My question is ..................................

Will they use his past immigration breach as a reason for refusal of the fiancee visa ?? Also i am in the UK starting our neww business so it is impossible for me to be in Thailand for the forseeable future. thus they have forced us apart for the bulk of this year (not together since February 2005) by their obstructive behaviour (still haven't sent the appeal papers on June's refusal) . Can they now argue that we are not in a "subsisting" relationship because we haven't been together since feb 05?? I am calling every day using a phonecard and can prove this by phone company records .

Even tho we wish to get married , will this past immigration breach (he never overstayed at any point) mean we will be forced apart FOREVER?? Seems an unjust world and no-one is prepared to help. The British Embassy ( who are rude and unhelpful at the best of times) seem determined to refuse him any visa .

Any thoughts ?? The Home Office website proudly claims they are building a "just and tolerant" society. seems not .......

Posted

Hi Silomfan,

I don't see any immigration breach, per se, in your partner's previous actions. Anyhow, the fiancé immigration rules are a different kettle of fish. You don't have to prove that you've been in a relationship akin to marriage, just a continuing one. Therefore, in order to substantiate this claim, you and your partner should submit evidence of your contact with each other over the course of your relationship. The fact that you have not actually seen each other since February does not necessarily detract from the application providing you can show that you've been in constant contact.

Cheers,

Scouse.

Posted
Hi Silomfan,

I don't see any immigration breach, per se, in your partner's previous actions. Anyhow, the fiancé immigration rules are a different kettle of fish. You don't have to prove that you've been in a relationship akin to marriage, just a continuing one. Therefore, in order to substantiate this claim, you and your partner should submit evidence of your contact with each other over the course of your relationship. The fact that you have not actually seen each other since February does not necessarily detract from the application providing you can show that you've been in constant contact.

Cheers,

Scouse.

Hi Scouse,

and many thanks for your encouraging reply. I have read the Civil Partnership Document and buried in the small print (there is always small print) it says - and this is common to ALL visa applications of any kind by anyone wishing to enter the UK for any reason - that a visa can be refused on "general grounds" if the ECO considers any previous visas to enter the UK were obtained by deception or that there were breaches in previous immigration rules.

So this means that they can deny 2 people their right to marry if they wish (and lets face it , the people in the British Embassy are not the nicest people you could wish to meet) purely on these grounds.

I wish i could share your optimism and i hope i am proved wrong.

I have a lot of experience dealing with immigration matters over the last 10 years through the British Embassy in Bangkok and should your other members wish to ask me any questions about their situation i will try to help them.

Silomfan

Posted

A fiancé(e) application is considered by the visa officer under the relevant paragraph of the immigration rules. If you fulfil the requirements of that paragraph, the ECO is going to have a difficult time justifying refusal under the general provisions.

Scouse.

Posted (edited)
So this means that they can deny 2 people their right to marry if they wish
The embassy staff cannot deny two people their right to marry, or in the case of same sex couples to form a civil partnership. Neither can they deny the right of 2 people to live together. What the ECOs do is consider each application on it's own merits, and if the application is valid and meets the requirements of the Immigration Rules then they will issue a visa. If the application is refused, then there is nothing stopping the British partner from moving to Thailand to be with their partner. Remember, too, that if a settlement visa application is refused then there is a right of appeal, so the ECO has to be reasonably certain before refusal.

I can't find the link at the moment, but the latest government figures show that over 93% of visa applications to the Bangkok embassy were granted. (Not much consolation if you are among the 7% that were refused, I know.)

(Self edit, found it. Entry Clearance - Facts and Figures (12/04/05). Follow the link to the main 'Entry Clearance - Facts and Figures (25/11/04)' page. If you then open the pdf file for 2003/4 you will find Bangkok on page 7.)

lets face it , the people in the British Embassy are not the nicest people you could wish to meet
I have never met socially any member of the Bangkok embassy staff so cannot comment on their character. When dealing with them professionally I have always found them to be courteous, even when our visit visa application was refused! They have a difficult job, and can only make their decisions based upon the information presented by the applicant. Most of the time they get it right, but they are only human and so capable of errors. Sometimes chancers will get a visa, and sometimes, unfortunately, genuine applicants will be refused.

Are the ECOs fair? Well I have been personally involved in 5 visa applications, 2 successful and 3 refused. So I would say that at least 2 of them were! :o

In the case of the 3 refusals, with the benefit of hindsight and the information I've garnered from this site and Thailand-UK in particular, I can see that the applications were woefully under prepared and bound to fail.

Edited by GU22
Posted

My thai boyfriend was refused a student visa because he had deviated from the rules.

(We got a Visitors Visa- 6months -first by going to the British Embassy together in BKK.He came to Uk for 3 weeks and went home as we had agreed when we were granted the visa......but then he came back to do a language course and to live together for the rest of the 6 months. Then back to BKK when the visa expired, and applieed for a student visa. This was refused but we awere delighted to win our appeal and he was granted a student visa...after a 7 month seperation we were then able to live together again.)

Now we hope to have a Civil Partnership next year.

Two things that have helped us. Firstly our lawyer , Nicola of H2O and secondly the information on gay.com. Have you been there?

Posted
My thai boyfriend was refused a student visa because he had deviated from the rules.

(We got a Visitors Visa- 6months -first by going to the British Embassy together in BKK.He came to Uk for 3 weeks and went home as we had  agreed when we were granted the visa......but then he came back to do a language course and to live together for the rest of the 6 months. Then back to BKK when the visa expired, and applieed for a student visa. This was refused but we awere delighted to win our appeal and he was granted a student visa...after a 7 month seperation we were then able to live together again.)

Now we hope to have a Civil Partnership next year.

Two things that have helped us. Firstly our lawyer , Nicola of H2O and secondly the information on gay.com. Have you been there?

Hi Malcolm,

Thanks for your contribution to my thread and i'm very pleased that you and your boyfriend can be together now.

Its not clear from your post exactly what immigration breaches he committed . You say he deviated from the rules , but how ??

Also can you tell me how he answered the question "do you know anyone in the UK?" that is on every application form ? did he say he knew you or not ? if not, did the Embassy ever pick up on that point and did they ever use it as part of the reasons for refusal ?? Depending on your reply , this could help me greatly.

Everyone reading this , you too Malcolm, may be interested to know that i have today received an e-mail from UK Visas (who are the agency in the UK who deal with complaints about Embassies abroad and all matters about applications abroad) who state that past immigration breaches CAN be used as a reason for refusal of any visa INCLUDING the Civil Partnership one !! That is food for thought especially as i think i'm right in saying that any foreign national who is subject to immigration control (that includes Thai nationals) and who wishes to enter into a Civil Partnership must return to their country and apply for the fiancee visa to allow them to come here to register under the new act. Anyone in these circumstances whose boyfriend is currently with them here in the UK may want to consult a solicitor - and Malcolm i also know Nichola of H2o - before blithley returning to Thailand expecting the Embassy to grant their visa application as a formality. It may be better to stay in the UK and apply for the unmarried partners visa (although the criteria is tough especially PROVING 2 years co-habitation) which esentially gives their boyfriend the same rights as the Civil Partnership does. And you can always register the Civil Partnership later of course.

In my case we were wrong to return to Thailand and should have stayed in the UK where we would now be the proud owners of the unmarried partners visa instead of being forced apart for what is now 8 months and counting.

If Malcolm , or anyone else come to that, would like to contact me through this forum i will be happy to share my knowledge (which is now becoming quite detailed through experience) with them and may be able tom help others avoid the problems i have had and continue to have. Especially valuable would be anyone who has had previous refusals from the British Embassy in Bangkok for a visitors visa , student visa , or unmarried partners (settlement) visa . I would like to hear their stories of what the reasons for refusal were, and also anyone who has appealed against a visa refusal and the results.

By sharing this information we could help each other.

Again many thanks to all who have read and contributed to this thread.

David

Posted
past immigration breaches CAN be used as a reason for refusal of any visa INCLUDING the Civil Partnership one !!

The general provisions for refusal of entry (clearance).

As can be seen, some of the provisions contained within this paragraph are absolute; e.g. if the applicant is the subject of a deportation order, yes, he will be refused a visa irrespective of the capacity in which he applies. However, in relation to those which are not absolute, the visa officer primarily has to consider the application according to the requirements of the paragraph under which the application is made. If they are met, then, depending upon the circumstances of the application, the visa officer would find it difficult to justify refusal under the general provisions.

For example, an applicant applies for an unmarried partner's visa. He meets all of the requirements of that paragraph but of the 2 years he's lived with his partner in the UK, 18 months of it was as an overstayer. Paragraph 320 indicates that this should normally result in refusal. However, the visa officer is satisfied that the criteria of the unmarried partners paragraph are met. He then has a conflict between the 2 paragraphs, one indicating that the visa should be granted and the other that it should be refused. In such a situation, the paragraph under which the application is made takes primacy; i.e. the visa should be issued.

In such a situation, if the visa officer were looking to refuse the application, the refusal would be under the principal paragraph, with 320 being an add on: for example, "You have sought entry clearance as the unmarried partner of Mr Smith. However, you stated that Mr Smith is unemployed. I am, therefore, not satisfied that you can be maintained without recourse to public funds and refuse your application under paragraph xxx. Furthermore, I am satisfied that when previously in the UK you failed to observe a condition attached to your leave to enter, and I, therefore, additionally refuse your application under paragraph 320."

Is that as clear as mud?

Scouse.

Posted (edited)

Scouse, hopefully you can clarify for me.

I am under the impression that in order to 'switch visas' certain conditions have to be met, mainly:-

1) The original visa must have had a duration of more than 6 months and have at least 3 months left to run.

2) The applicant must be within the UK legally.

So, Silomfan's idea that "It may be better to stay in the UK and apply for the unmarried partners visa......" would only work for someone who is here with a work permit, student visa etc., not for someone with a visit visa, especially if they had overstayed.

Am I correct?

Silomfan, you may be interested in Civil Partnership Act, a thread on Thailand-UK. (It's in the members only section, so you'll need to register.)

Edited by GU22
Posted

Under normal circumstances, someone already in the UK who wished to change status to that of an unmarried partner would be expected to leave the UK and seek a visa/entry certificate (as appropriate). Technically, no foreign national is allowed to switch into this category, as, under the immigration rules, an entry clearance specifically for this purpose is mandatory. Consequently, an application to switch would be refused on the basis that the applicant does not hold entry clearance for the capacity in which he now wishes to remain.

Cheers,

Scouse.

Posted

My previous answer was extrapolated from the fiancé(e) and spouse provision of the immigration rules. I've now had a proper look at the rules as they relate to leave to remain for unmarried partners and, for the life of me, can't find anything outlawing switching to this category. Here they are:-

(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules; and

(ii) any previous marriage (or similar relationship) by either partner has permanently broken down; and

(iii) the applicant is the unmarried partner of a person who is present and settled in the United Kingdom; and

(iv) the applicant has not remained in breach of the immigration laws; and

(v) the parties are not involved in a consanguineous relationship with one another; and

(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more; and

(vii) the parties' relationship pre-dates any decision to deport the applicant, recommend him for deportation, give him notice under Section 6(2) of the Immigration Act 1971, or give directions for his removal under section 10 of the Immigration and Asylum Act 1999; and

(viii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(ix) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(x) the parties intend to live together permanently.

Now, this, to my mind is a large loophole. Why bother to marry someone when they then have to leave the UK to get a visa to come back, when you can live with them for 2 years and qualify as an unmarried partner, without the requirement to leave and get a visa.

Anyway, sorry for the rush, but I'm off for a quiet pint (followed by 15 noisy ones).

Cheers,

Scouse.

Posted

Thanks again, Scouse.

For anyone here with a VV, I think the important points are:-

(iv) the applicant has not remained in breach of the immigration laws

and

(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more

So, anyone who is in the UK with a visit visa would not be able to use this, as you say, "loophole" as in order to satisfy condition (vi) they would need to be in breach of condition (iv). Unless, of course, they had been living for 18 months with their UK partner in Thailand, travelled to the UK with a VV and then lived for a further 6 months here. But in those circumstances I suspect that any VV application would fall down on "reason to return."

Enjoy the pint(s).

Posted

Hi Malcolm,

Thanks for your contribution to my thread and i'm very pleased that you and your boyfriend can be together now.

Its not clear from your post exactly what immigration breaches he committed . You say he deviated from the rules , but how ??

Also can you tell me how he answered the question "do you know anyone in the UK?" that is on every application form ? did he say he knew you or not ? if not, did the Embassy ever pick up on that point and did they ever use it as part of the reasons for refusal ?? Depending on your reply , this could help me greatly.

Dear David,

The fact that we won our appeal in the end meant that we hadnt actually breached any rules but the officer invoved in refusing the student visa was unhappy that my bf had returned to study on the original tourist visa. We originally went to the embassy together and were absolutely honest about our relationship and asked for the TV for a visit of four weeks. We stuck to this and my bf returned to Thailand after 4 weeks but then came back again under the TV to study and live together. After returning to BKK at the end of the TV he applied for a SV and this was refused on the grounds that we had not just visited once under the TV and that he should have applied for a SV.

On each application my name was given as the friend and sponsor in the UK. We have been absolutely honest about this from the start.

Happy to be in contact by e mail

Malcolm

Posted
Hi Malcolm,

Thanks for your contribution to my thread and i'm very pleased that you and your boyfriend can be together now.

Its not clear from your post exactly what immigration breaches he committed . You say he deviated from the rules , but how ??

Also can you tell me how he answered the question "do you know anyone in the UK?" that is on every application form ? did he say he knew you or not ? if not, did the Embassy ever pick up on that point and did they ever use it as part of the reasons for refusal ?? Depending on your reply , this could help me greatly.

 

Dear David,

The fact that we won our appeal in the end meant  that we hadnt actually breached any rules but the officer invoved in refusing the student visa was unhappy that my bf had returned to study on the original tourist visa. We originally went to the embassy together and were absolutely honest about our relationship and asked for the TV for a visit of four weeks. We stuck to this and my bf returned to Thailand after 4 weeks but then came back again under the TV to study and live together. After returning to BKK at the end of the TV he applied for a SV and this was refused on the grounds that we had not just visited once under the TV and that he should have applied for a SV.

On each application my name was given as the friend and sponsor in the UK. We have been absolutely honest about this from the start.

Happy to be in contact by e mail

Malcolm

Hello again Malcolm,

Can you tell me why they overturned the refusal at appeal ?? what reason did they give for finding in your favour ? It seems like you did have a minor breach of the rules rather like my situation ... thus my interest in what reasons were given for the allowing of the appeal.

To correspond on a personal level could you e-mail me on

[email protected]

many thanks

david

Posted
My previous answer was extrapolated from the fiancé(e) and spouse provision of the immigration rules. I've now had a proper look at the rules as they relate to leave to remain for unmarried partners and, for the life of me, can't find anything outlawing switching to this category. Here they are:-

(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules; and

(ii) any previous marriage (or similar relationship) by either partner has permanently broken down; and

(iii) the applicant is the unmarried partner of a person who is present and settled in the United Kingdom; and

(iv) the applicant has not remained in breach of the immigration laws; and

(v) the parties are not involved in a consanguineous relationship with one another; and

(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more; and

(vii) the parties' relationship pre-dates any decision to deport the applicant, recommend him for deportation, give him notice under Section 6(2) of the Immigration Act 1971, or give directions for his removal under section 10 of the Immigration and Asylum Act 1999; and

(viii) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively; and

(ix) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds; and

(x) the parties intend to live together permanently.

Now, this, to my mind is a large loophole. Why bother to marry someone when they then have to leave the UK to get a visa to come back, when you can live with them for 2 years and qualify as an unmarried partner, without the requirement to leave and get a visa.

Anyway, sorry for the rush, but I'm off for a quiet pint (followed by 15 noisy ones).

Cheers,

Scouse.

Scouse, I am curious about this one because I thoght the same too. Yet i clearly remember my cousins's Turkish husband coming on a tourist visa, then going back and then returning on another tourist visa in 2001 (with three months between his tourist visas). They then went to Immigration in Glasgow to try and get the Toruist visa extended and left with a spousal visa - he was given the year long (I know it is two years now) spousal visa. He has now went onto to get his indefinate leave to remain.

Did the legislation change shortly after that because I have yet to come accross anyone else that has been able to do this!! Even they were susprised by the turn that things took in Glasgow - either that or they were good at blagging their surprise and that was there plan all along. Either way I thought the spousal visa had to be issued in Turkey.

Just curious!

Posted

I can't recall when the rules changed, but it is now not possible for visitors to make in-country applications for leave to remain as a spouse (or, rather, than can make such an application, but it will be automatically refused). Indeed, since February 2005, visitors have been barred from marrying in the UK unless in possession of a "marriage visit" visa. And that is the apparent loophole: a visitor who is married to a Brit can't switch, but a visitor who is the unmarried partner of a Brit, can.

Cheers,

Scouse.

Posted

Sorry, Scouse, but whilst you are, of course, technically correct, I still think that using the unmarried partners "loophole" would be very difficult for most people. As I said before

For anyone here with a VV, I think the important points are:-

(iv) the applicant has not remained in breach of the immigration laws

and

(vi) the parties have been living together in a relationship akin to marriage which has subsisted for two years or more

So, anyone who is in the UK with a visit visa would not be able to use this, as you say, "loophole" as in order to satisfy condition (vi) they would need to be in breach of condition (iv). Unless, of course, they had been living for 18 months with their UK partner in Thailand, travelled to the UK with a VV and then lived for a further 6 months here. But in those circumstances I suspect that any VV application would fall down on "reason to return."

So, IMHO, this "loophole" would only benefit someone whose Thai (or other visa national) partner is in the UK with a student visa or work permit when they meet, and that student visa or work permit has at least another 2 years to run.

Sorry to be a pedant, but I don't want anyone thinking that they can get a visit visa for there partner, live together in the UK for 2 years and then apply in the UK as unmarried partners.

Posted

Alternatively, they may have lived together in Thailand for, lets say, 19 months and then come to the UK as a visitor and be able to switch after having been in the UK for 5 months.

Scouse.

Posted

In theory, yes, but

.....in those circumstances I suspect that any VV application would fall down on "reason to return."
Unless, of course, they didn't say that they intended to remain in the UK. Haven't you written elsewhere about the dangers of withholding material facts?

Again, apols for the pedantry.

Posted
In theory, yes, but
.....in those circumstances I suspect that any VV application would fall down on "reason to return."
Unless, of course, they didn't say that they intended to remain in the UK. Haven't you written elsewhere about the dangers of withholding material facts?

Again, apols for the pedantry.

Hi guys,

You cannot go to the UK on a visitors visa and then apply for the unmarried partners visa when you qualify because they will refuse it by saying

1) by entering the UK on a visitors visa you must have lied about your intention to return to Thailand - it is after all a VISITORS visa !!

2) even worse for your future applications, YOU WILL HAVE OBTAINED A VISA (the visitors one in this case) BY DECEPTION and thats a position you don't want to get into.

Happy Halloween

SILOMFAN

Posted
You cannot go to the UK on a visitors visa and then apply for the unmarried partners visa when you qualify because they will refuse it by saying

1) by entering the UK on a visitors visa you must have lied about your intention to return to Thailand - it is after all a VISITORS visa !!

2) even worse for your future applications, YOU WILL HAVE OBTAINED A VISA (the visitors one in this case) BY DECEPTION and thats a position you don't want to get into.

Yes, but not if you changed your mind having already arrived in the UK.

If someone is accused of lying/deception it has to have been instrumental to the grant of the visa/leave to enter. If either a person changes their mind or their circumstances change post-arrival in the UK, then their leave to enter can't possibly have been obtained by deception.

Scouse.

Posted
You cannot go to the UK on a visitors visa and then apply for the unmarried partners visa when you qualify because they will refuse it by saying

1) by entering the UK on a visitors visa you must have lied about your intention to return to Thailand - it is after all a VISITORS visa !!

2) even worse for your future applications, YOU WILL HAVE OBTAINED A VISA (the visitors one in this case) BY DECEPTION and thats a position you don't want to get into.

Yes, but not if you changed your mind having already arrived in the UK.

If someone is accused of lying/deception it has to have been instrumental to the grant of the visa/leave to enter. If either a person changes their mind or their circumstances change post-arrival in the UK, then their leave to enter can't possibly have been obtained by deception.

Scouse.

Hi Scouse,

Of course you are right , but you are thinking as a reasonable man or woman would . We are not dealing with reasonable people here we are dealing with the British Embassy Bangkok. As it happens, i had a long chat with my solicitor today about this very subject as i received a letter today from the Bangkok Embassy . In it the Embassy says that if you enter the country under one kind of visa and then change your mind you should "immediately" return to Thailand and obtain the correct visa , and in doing so they would view this as extremely suspicious !! Also you must remember that its easy and natural to say that your circumstances changed or you changed your mind , but the Embassy can and do say that therefore you obtained the visa by deception. Its up to you to prove them wrong not up to them to prove they are right.

They simply have to say they think you obtained it by deception , thats enough. Nothing you can do except appeal , and that takes months and months

READ THIS BIT BELOW

My partner came to the UK on a student visa and then applied for the unmarried partners visa. It was refused by the Home Office here in the UK although they were fairly pleasant about it .No talk of deception. But when he returned to Thailand as suggested to re-apply for the unmarried partners visa there suddenly they say the student visa was obtained by deception !! so you see you are not free to change your mind as you would think . Sobering thought isn't it ??

SILOMFAN

Posted

Hi Silomfan,

All leave to enter/remain immigration decisions are based on the balance of probability. Therefore, in order to justify refusing an application under paragraph 320, specifically:-

(12) the obtaining of a previous leave to enter or remain by deception

the, in this case, visa officer has to be able to manifest that it is more likely than not that the applicant lied in order to get the previous leave. This does not require an admission, and can be based upon the prevailing circumstances, but, the visa officer is ultimately accountable for his decision. If this is so flawed as to have no basis in law, then there are various ways of challenging it prior to any appeal. The aggrieved party can make representations to the head of the visa section, UK Visas and/or their MP. I have known instances where refusals have been overturned on the basis of representations, so it is possible to get somewhere without having to wait for the appeal, it just depends upon the circumstances of the individual case. Should the decision be absolutely outrageous, then there also exists the possibility of taking the case to a judicial review, although, that can be when the legal fees start to get a bit expensive.

Obviously, I don't know the circumstances of your partner's visa refusal, and I wouldn't expect you to reveal them here for the world to read, but if you have solid reasons for thinking that visa officer has wrongly interpreted the balance of probabilities, then you don't need to wait for the appeal, you should strike whilst the iron's hot.

Best of luck,

Scouse.

  • 5 months later...

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