A Hypothetical Scenario

[nis999]

A hypothetical scenario, although it could happen to us…

To set the scene, my wife, 42, was refused a Fiancé visa, she was pregnant and our appeal was heard at the Manchester Tribunal. In his written determination the Judge said and I quote:

“I note that the Appellant is pregnant. The child of Mr xxxx and her will, if the application is refused be forced to live in Thailand, separated from its father and half siblings in this country. Thus the appeal would have been allowed almost certainly on Human Rights grounds, but I do not need to go on to consider the position there, as it must be allowed under the Immigration Rules.”

More than one year on, baby is one, my wife has another 15 months on her current visa and is taking an ESOL course. I have to say that her English is, at best pretty poor, but we manage. (We got her 2-year visa extension 3 days before the rules changed; If I had not seen the headline on the UKBA website in November “Theresa May moves the Goalposts”, who knows where we would be now…).

Given what the Judge said about the Human Rights act, what would happen if my wife failed to get her ESOL certificate? Should I start saving to pay for another Barrister?

[bobrussell]

Possibly you might need to save up. However your wife will be able to get further leave to remain (two year renewal) but she will still need to pass the very basic English A1 test for this. It is very basic and if you can have a basic conversation in English she will be able to pass it!

A bit of me questions why her English is still basic. Do you speak Thai in the house? If you do you are probably not doing her any favours in the long run. My wife knows a number of Thais that live in a little Thai world in the UK and have done for years. An ESOL course will support her at whatever level she is at and help her to improve!

Using FLR rather than indefinite leave to remain works out pretty pricey in the long run. My advice is to support her in improving her English however long this may take!

Another route to allow her to remain in the UK would be to invoke the childs right to 'enjoy the rights of an EU citizen' under a recent legal case in the European Court (Google Zambrano). This is far from being clear cut but does not directly involve the Human Rights Act. Go down this route only if you have more money than sense!!! I am also not sure there would be exemption from the English requirement.

If you try to by-pass the standard settlement routes be prepared for an expensive and potentially difficult fight. The human rights act is often seen as a last resort route to settlement.

My (non-legally qualified) advice is to help your wife to improve her ESOL with citizenship materials by one level and do things the 'ordinary' way! From what you say this is likely to be the only barrier to ILR and ultimately citizenship. ESOL courses can be fun and build confidence! Make sure you only speak English at home. As the baby grows encourage both Thai and English, they are both very rich cultures.

Sorry did not read your post properly. It seems you are already doing most of the things I have suggested. Keep working on her English. She will get there!!

[nis999]

Thanks Bob, we only speak English at home, sometimes with misunderstandings. To be fair she only started the ESOL course in May, and its suspended as per school holidays, so she will return in Sept and she and teacher both know she will have a little over a year to improve. I keep telling her she must speak Thai to the baby, as everyone else around her will be speaking English. (The baby has a Thai birth certificate, with my Surname (which was difficult because we weren’t married then) and I got her a British cert and passport at the Embassy, so she will be able to take dual nationality, and I will make sure she is fluent in both languages for the future. As you will remember from my post last week, we are trying to get my wife’s 11-year old daughter over here too, and her English is much better, which will help.

I am sure we will get her though the ESOL, but in the back of my mind I keep remembering what the Judge said. As you say, last resort.

[Thongkorn]

I hope the College that you wife is taking her Esol course with is as helpfully as the one my wife went to, They will assist her in every way , they will help her through the test , they are not draconian or stupid they know the ones who are trying , don't worry , i am certain that she Will pass.

[7by7]

You need to remember that the judges comments were that the appeal would "almost certainly" be allowed on human rights grounds; not definitely. This is also the opinion of that particular judge; another may take a different view.

Pursuing a human rights route is going to be expensive, with no guarantee of success. Remember that Article 8 (the right to family life) is a qualified right, and that an individual signatory's national law takes precedent; and that includes immigration law.

To follow the human rights route your wife would first have to apply (and pay) for ILR and be refused. She would then need to appeal; bearing in mind that the government will almost certainly have made the proposal to charge appellants the cost of the appeal fact by then. A complex case, she's going to need representation.

The case could go all the way to the European court; more expense.

As bobrussell says, although the Zambrano ruling may be relevant, this is a course I would only follow if I wanted to see a bunch of lawyers considerably richer and myself considerably poorer!

Your wife still has plenty of time to satisfy the KOL requirement before she has to apply for ILR, so I'd recommend following that course of action.