Human Right Laws

[shorty64]

can a wife of a farang stay inthe uk if they have a baby born in the uk on human rights if her visa has run out..

[Mario2008]

Your question is about UK-immigration. I move your topic to the section for visas for other countries, where you can get a better answer to your question.

[7by7]

Simple answer: probably not. A signatory country's immigration law usually takes precedence over Article 8 of the ECHR.

For a relevant answer; more details of their circumstances are required.

One thing is for sure; if her visa has run out she must do something about it!

[shorty64]

My wifes visa expired 16/9/2011 and we have a meeting in london next week with a human rights specialist visa agency. the only info they gave me was that the human rights channel that they go through for cases like ours do not include normal immigration rules.because our child has a british passport and we are married they seemed quite confident of the outcome. our case will go to the secatary of state and not the home office immigration dept.

Simple answer: probably not. A signatory country's immigration law usually takes precedence over Article 8 of the ECHR.

For a relevant answer; more details of their circumstances are required.

One thing is for sure; if her visa has run out she must do something about it!

[VisasPlus]

My wifes visa expired 16/9/2011 and we have a meeting in london next week with a human rights specialist visa agency. the only info they gave me was that the human rights channel that they go through for cases like ours do not include normal immigration rules.because our child has a british passport and we are married they seemed quite confident of the outcome. our case will go to the secatary of state and not the home office immigration dept.

Simple answer: probably not. A signatory country's immigration law usually takes precedence over Article 8 of the ECHR.

For a relevant answer; more details of their circumstances are required.

One thing is for sure; if her visa has run out she must do something about it!

I think there is probably more involved her than you have told us. The obvious first question is why, if her visa expired yesterday, didn't she seek an extension ? She is your wife, after all, and would probably qualify for an extension, unless there are reasons why she cannot ?

It may well be that you have taken advice from a "specialist company" that has advised your wife to let her permission to stay in the UK expire, in order to try to remain under "the human rights " channel. If so, then they may or may not be giving you good advice. I suspect that the humnan rights channel they are talking about is the recent Zambrano European Court of Justive ruling that says parents of UK born children should not be removed from the UK, thus depriving the British born child of their presence, etc. If so, then Home Office has not yet accepted that ruling, and will probably be appealing it in the European courts,

[shorty64]

Its a genuine mistake on my behalf because her visa was stamped on the 7 july 2009 so i imagined that the visa would run out on the 7 oct 2011, she had a visa for 27 months but the date it was issued in bangkok was the 16 june 2009 thus running out on the 16 9 2011 they are appling for a human rights visa because she has not been able to go to college because of the baby and she has failed the life in the uk test twice so she cannot apply to an extension to her spouse visa. the agency are appying through the human rights channel because of the right to respect private and family life

My wifes visa expired 16/9/2011 and we have a meeting in london next week with a human rights specialist visa agency. the only info they gave me was that the human rights channel that they go through for cases like ours do not include normal immigration rules.because our child has a british passport and we are married they seemed quite confident of the outcome. our case will go to the secatary of state and not the home office immigration dept.

Simple answer: probably not. A signatory country's immigration law usually takes precedence over Article 8 of the ECHR.

For a relevant answer; more details of their circumstances are required.

One thing is for sure; if her visa has run out she must do something about it!

I think there is probably more involved her than you have told us. The obvious first question is why, if her visa expired yesterday, didn't she seek an extension ? She is your wife, after all, and would probably qualify for an extension, unless there are reasons why she cannot ?

It may well be that you have taken advice from a "specialist company" that has advised your wife to let her permission to stay in the UK expire, in order to try to remain under "the human rights " channel. If so, then they may or may not be giving you good advice. I suspect that the humnan rights channel they are talking about is the recent Zambrano European Court of Justive ruling that says parents of UK born children should not be removed from the UK, thus depriving the British born child of their presence, etc. If so, then Home Office has not yet accepted that ruling, and will probably be appealing it in the European courts,

[VisasPlus]

Its a genuine mistake on my behalf because her visa was stamped on the 7 july 2009 so i imagined that the visa would run out on the 7 oct 2011, she had a visa for 27 months but the date it was issued in bangkok was the 16 june 2009 thus running out on the 16 9 2011 they are appling for a human rights visa because she has not been able to go to college because of the baby and she has failed the life in the uk test twice so she cannot apply to an extension to her spouse visa. the agency are appying through the human rights channel because of the right to respect private and family life

My wifes visa expired 16/9/2011 and we have a meeting in london next week with a human rights specialist visa agency. the only info they gave me was that the human rights channel that they go through for cases like ours do not include normal immigration rules.because our child has a british passport and we are married they seemed quite confident of the outcome. our case will go to the secatary of state and not the home office immigration dept.

Simple answer: probably not. A signatory country's immigration law usually takes precedence over Article 8 of the ECHR.

For a relevant answer; more details of their circumstances are required.

One thing is for sure; if her visa has run out she must do something about it!

I think there is probably more involved her than you have told us. The obvious first question is why, if her visa expired yesterday, didn't she seek an extension ? She is your wife, after all, and would probably qualify for an extension, unless there are reasons why she cannot ?

It may well be that you have taken advice from a "specialist company" that has advised your wife to let her permission to stay in the UK expire, in order to try to remain under "the human rights " channel. If so, then they may or may not be giving you good advice. I suspect that the humnan rights channel they are talking about is the recent Zambrano European Court of Justive ruling that says parents of UK born children should not be removed from the UK, thus depriving the British born child of their presence, etc. If so, then Home Office has not yet accepted that ruling, and will probably be appealing it in the European courts,

I don't deal with UK applications for extension of stay, but are you sure that she could not apply for an extension ? The guidance for settlement applicants states:

If you have not yet met the KOL requirement and your current permission to stay will expire soon, you will need to apply using the appropriate form to extend your temporary permission to stay (also known as 'further leave to remain') in the UK.

If you do meet the KOL requirement but your dependent partner has not yet obtained a relevant qualification, they will need to apply separately to extend their temporary permission to stay. They should apply using an FLR(O) application form, or using an FLR(M) form if you have applied or are applying under the points-based system.

Who advised you that she could not apply for further leave to remain ? You obviously took advice on this as her leave to remain only expired yesterday. If I was you, I would submit a late application on Monday explaining why you did not submit yesterday ( ie. you received bad advice ). You are putting your wife in a very difficult position if you are relying on human rights grounds when you had the legal opportunity to apply for an extension. I apologise if I am missing something here, but on the information you have given, I think you and your wife may have been badly advised.

[7by7]

I agree with VisaPlus; it seems from what you say that you and your wife have received some very poor advice from this agent. You may want to consider making a complaint to the OISC. Doing so wont help her case or result in any compensation; but if the OISC do find in your favour this would help you were you to consider legal action against the agent.

If her spouse visa was expiring but she did not yet qualify for Indefinite Leave to Remain then, as VisaPlus says, she could have applied for Further Leave to Remain which would have extended her permission to stay for another two years. See Applying from inside the UK , Service FLR (M) and FLR(M) Guidance Notes.

However, to do this she will have to satisfy the English language requirement for partners, unless she did so when applying for her initial 27 month visa. Unlikely as this requirement only came into force last November.

The test is a simple speaking and listening one, a lot easier than the LitUK test or equivalent course. Any test on this list is acceptable, so you will need to find a college or similar offering one of these tests who can fit your wife in ASAP.

Whether the UKBA would accept a late application on the basis of you and your wife not knowing when her visa expired and then receiving bad advice. I don't know. But I do know that if she submits a FLR application on Monday without an appropriate English certificate that application will be refused.

I also know that doing nothing is not an option.

So, you can either go with the advice you have received from your agent or get her to take the English test and submit an FLR(M) application PDQ; explaining in the application why it is late.

[potter09]

I agree with VisaPlus; it seems from what you say that you and your wife have received some very poor advice from this agent. You may want to consider making a complaint to the OISC. Doing so wont help her case or result in any compensation; but if the OISC do find in your favour this would help you were you to consider legal action against the agent.

If her spouse visa was expiring but she did not yet qualify for Indefinite Leave to Remain then, as VisaPlus says, she could have applied for Further Leave to Remain which would have extended her permission to stay for another two years. See Applying from inside the UK , Service FLR (M) and FLR(M) Guidance Notes.

However, to do this she will have to satisfy the English language requirement for partners, unless she did so when applying for her initial 27 month visa. Unlikely as this requirement only came into force last November.

The test is a simple speaking and listening one, a lot easier than the LitUK test or equivalent course. Any test on this list is acceptable, so you will need to find a college or similar offering one of these tests who can fit your wife in ASAP.

Whether the UKBA would accept a late application on the basis of you and your wife not knowing when her visa expired and then receiving bad advice. I don't know. But I do know that if she submits a FLR application on Monday without an appropriate English certificate that application will be refused.

I also know that doing nothing is not an option.

So, you can either go with the advice you have received from your agent or get her to take the English test and submit an FLR(M) application PDQ; explaining in the application why it is late.

As suggested by 'Visa Plus', I believe the most sensible option in the circumstances is to submit a late FLR application on Monday itself even if you cannot forward an appropriate English certificate straightaway. Of course, a very clear explanation will have to be given for the late application and also confirm a date by which the English certificate will be submitted. Hope, you will be able convince the Home Office that your situation amounts to exceptional circumstances,particularly as you seem to have relied on the advice you received. The fact that a child is involved here and as it is not a deliberate attempt to overstay without a visa, may well work in your favour. However, please do not rely entirely on the Human Rights argument as the fault clearly lies with yourselves and/or your advisor. Best Wishes.

[bangkockney]

I'll echo the sentiments of others. Get the late FLR application in and only consider HR grounds should the application be refused.

A case built on HR grounds following a visa refusal is much more sound than allowing a visa to expire and then claiming an HR breach.

[Thongkorn]

I love my Thai wife and she is here on a settlement visa, 27 months, We are now getting ready to apply for indefinite leave to remain, the point is, I/We know nearly to the hour what date her Visa runs out, How did you get in this position in the first place, and why shout human rights. i think its about time The Human rights was abolished in the UK.its use to many times for wrong reasons. sorry but it had to be said.

[tahaan]

I love my Thai wife and she is here on a settlement visa, 27 months, We are now getting ready to apply for indefinite leave to remain, the point is, I/We know nearly to the hour what date her Visa runs out, How did you get in this position in the first place, and why shout human rights. i think its about time The Human rights was abolished in the UK.its use to many times for wrong reasons. sorry but it had to be said.

Don't be too smug or quick to dismiss. You never know when you might need some legal support.

I sincerely hope your wife's application is successful. My wife and I thought we had a pretty straight forward application to make too. However, her application has failed and been returned because of circumstances beyond our control and intransigence on the part of the authority. Leave to remain has now expired leaving us in a very difficult position. We've been married and lived together in Thailand and UK for 9 years now. I'd like to think that our human rights to remain living together as man and wife are something worth protecting.

[bifftastic]

Don't rely on what your lawyers have told you! Do something about it yourselves, quickly!

They may well relish the prospect of taking a human rights case to court, for their own reasons not yours, but will just be 'very sorry' when the decision is not in your favour. You'll still have to pay them and they won't give your wife a lift to the airport when she has to leave you and your child and go back to Thailand on her own.

Maybe, just maybe, you'll be able to go down the 'Right to Family Life' route, if your application is refused because you didn't read/understand the dates on her visa, but I wouldn't hold your breath!

That particular law is NOT something that anyone can use to circumvent the immigration laws of a country. Just because you 'forgot' or didn't apply in time, doesn't mean that your human rights are being violated, it just means that you forgot, or didn't apply in time.

I'm not saying that you deliberately allowed the visa to expire, but that doesn't really come into it now.

It has expired, and to start down a long, expensive road with absolutely NO GUARANTEE WHATSOEVER of success would, in my opinion, be a huge mistake.

I wish you all the best of luck, and hope that your family can stay together.

Biff

[MikeyIdea]

Sorry but I can't see that this is human rights related at all at this stage, not at all. The wife (or husband rather), apologies for the harsh words, made a stupid mistake and she is therefore in the country illegally. The solution is simple: Either request extension or leave the country and re-apply. If she has to leave the UK and re-apply then the family should jointly decide if the mother should bring her child with her when she goes back to Thailand or if she should go herself

I don't like the attitude - make a stupid mistake and then cry "human rights". This can become a valid human rights case if the extension is turned down or if the authority in question takes a decision that e.g. leaves the child without her father or mother (or breaks up a family)

Edited September 19, 2011 by MikeyIdea