UK visa "6 in 12" rule. Have the goalposts moved ?

[wooloomooloo]

My point is that someone settling in the UK would not be expected to spend 18 months of the probationary 3 year period outside the UK and I suspect would struggle to impress the ECO that this was permanently living in the UK.

I took you at your word. A settlement would be in order but not as a alternative to a visit visa. It never has been. There's no middle ground and that we can agree.

Sent from my iPhone using Thaivisa Connect Thailand

[wooloomooloo]

“ I am not satisfied that you intend to leave the UK at the end of the period of the visit and that you do not intend to live for extended periods in the UK through frequent or successive visits.”[/] 

This is pure bumph. Doesn't make sense, but, is unchallengeable.

Sent from my iPhone using Thaivisa Connect Thailand

[7by7]

It means the ECO believes the applicant intends to use her visit visa(s) to by pass the settlement rules; despite her abiding by the rules on previous occasions.

As the right of appeal for family visits has been removed, then you are right on one point; it is unchallengeable. Unless they wish, and can afford, to go to judicial review.

BTW, one of the reasons given by the government for abolishing this right of appeal was that too many appeals were being granted!

[Jay Sata]

Mr Sata,

I'm not sure what point you are trying to make, but would like to point something out to you.

In previous posts you have claimed that your wife is a dual Thai/American and that you and she spend roughly 6 months in the UK and 6 months elsewhere.

Even though as an American she does not need to obtain a visa in advance to visit the UK, the immigration rules do apply to her. So, if this strict interpretation of '6 out of 12' extends to IOs at ports of entry she could find that on her next attempt to enter the UK as a visitor she is denied entry!

Something for you to consider.

That's not the point I'm making.

In my case I have three passports (UK,Eire and Australia) and my wife also has three. (Thai,Eire,USA)

Entering and leaving those countries is not a problem as we have the rights as citizens to reside in them.

However we are UK based for tax. That mean if we do not want to pay UK tax we are only allowed 90 days in the UK. In fact we're heading back to Dublin this weekend and I doubt for a minute we'll have a problem. As an extra challenge we fly Ryanair!

The general thrust of this thread appears to be that a visitor to the UK can exploit the whole six months of the visa,leave for 180 days and then return for another six months. That is pushing the limits and the ECO has the right to say no.

The UK is quite generous in the way it allows six month visitor visa's but in my opinion anyone challenging the rules via the courts may find the barriers are lowered for everyone.

It means the ECO believes the applicant intends to use her visit visa(s) to by pass the settlement rules; despite her abiding by the rules on previous occasions.

As the right of appeal for family visits has been removed, then you are right on one point; it is unchallengeable. Unless they wish, and can afford, to go to judicial review.

That is the point I'm making.

A judicial review would be difficult as the appellant would not be a UK resident so would face considerable hurdles not least the costs.

Just remember 90 days is the magic number in Thailand.

Edited November 29, 2013 by Jay Sata

[bobrussell]

The whole point is that the ECO does NOT have a right to say No! in this case (assuming the case is as described with no complicating factors of course).

The visit visa rules and guidance notes are very clear and this applicant has followed them to the letter. This ECO has made a decision way above his or her pay grade and well into political territory.

The courts interpret the law so barriers will only be lowered with a change in legislation.

In the same circumstances I would apply again (as there is no appeal process)making it very clear that the applicant has and will comply with the visa legalities. I would also send copies of the relevant guidance notes highlighting a full history of compliance. Why the ECO has decided that the applicant is not likely to return home at the end of the visa escapes me. There would appear to be no evidence that this is going to happen.

The UK partner should try to get his MP to get an explanation from VKV&I for this refusal.

Edited November 30, 2013 by theoldgit

[Jay Sata]

You appear to suggest there should be latitude for someone to come to the UK on a visitor visa on a regular basis for six months in every twelve?

In other words a person who does not qualify to enter the UK via normal channels can live here for 180 days consecutively on a visit visa, leave and return 180 days later ad infinitum ?

Edited November 29, 2013 by Jay Sata

[7by7]

There is nothing in the rules to say that they cannot do so; no latitude is required.

If the government don't want people to do this then they should change the law; not rely on ECO's misinterpreting the existing rules and guidance.

[Jay Sata]

I admire your tenacity in trying to help people but the duty chief immigration officer has the last say.

Those with a visitor visa have no right to appeal.

Edited November 29, 2013 by Jay Sata

[Seekingasylum]

Nonsense.

Administrative decisions which attract no right of appeal can all be challenged on an application for a judicial review. In truth, it is a far better method of obtaining justice, quicker and if successful one can be awarded costs. Eventually, the appeal right will be reinstated when the courts are swamped with such applications which will invariably find for the applicant.

You obviously know little of the subject but doubtless this has not hampered you in pontificating your uninformed opinion.

[Tony M]

Some good responses here, and good to see a healthy debate !

I believe that the sponsor is going to, or has already, contacted his MP. Also, I think the Pre-Protocol letter is an excellent idea, but I don't know if the applicant and sponsor feel able to go down that route, confidently, on their own. I see one agency in the UK charges 500 + VAT GBP to write the letter !

[wooloomooloo]

“ I am not satisfied that you intend to leave the UK at the end of the period of the visit...”

It means the ECO believes the applicant intends to use her visit visa(s) to by pass the settlement rules; despite her abiding by the rules on previous occasions.

Indeed, but not satisfied that you intend to leave the UK at the end of the period appears to be totally unjustified.

[7by7]

Based upon the information we have, the whole refusal is unjustified.

[wooloomooloo]

Also, I think the Pre-Protocol letter is an excellent idea, but I don't know if the applicant and sponsor feel able to go down that route, confidently, on their own. I seeone agency in the UK charges 500 + VAT GBP to write the letter !

For anyone interested the relevant part commences at paragraph 8.

Certainly a tall order to follow through.

http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv

[Seekingasylum]

As the process becomes more publicised I should imagine the cost of drafting PAP letters will decrease among the legal fraternity. Certainly, anyone is permitted to do it and it is quite likely competition in the market place will drive prices down.

Still, £500 for righting a wrong preventing one's spouse from visiting strikes me as a reasonable price.

This time, next year, I shouldn't be surprised if it is all the rage. Those with time on their hands and who have a degree of skill in the field of immigration practice could well do worse..........

[bobrussell]

I admire your tenacity in trying to help people but the duty chief immigration officer has the last say.

Those with a visitor visa have no right to appeal.

The Chief Immigration Officer does not have the last say at all. He or she does nothing more than recheck the interpretation of the rules to try to ensure compliance with the law. They do not have the power to change the rules but may provide a more experienced opinion before granting or refusing a visa.

Clearly this process has not worked in this case. It may be that lack of appeal has led to overconfidence because of thereduced likelihood of further challenge. The Chief Immigration Officer should be a safety net to ensure quality of judgement.

From the information available this has failed. Unless there are other factors we are unaware of this decision is completely wrong!

If there is political pressure to reject visa applications this is an even more disgraceful situation that would have to be challenged via the legal system.

Edited November 30, 2013 by bobrussell

[Jay Sata]

There is nothing in the rules to say that they cannot do so; no latitude is required.

If the government don't want people to do this then they should change the law; not rely on ECO's misinterpreting the existing rules and guidance.

The rule appears quite clear to me.

intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits

Surely successive visits of just under six months duration breach the above?

Edited November 30, 2013 by Jay Sata

[Tony M]

There is nothing in the rules to say that they cannot do so; no latitude is required.

If the government don't want people to do this then they should change the law; not rely on ECO's misinterpreting the existing rules and guidance.

The rule appears quite clear to me.

intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits

Surely successive visits of just under six months duration breach the above?

I think you might need to find out the definition of "successive " first ? It is something along these lines :

"following one after the other in a series : following each other without interruption."

This lady's visits to the UK were not uninterrupted ( she was back in Thailand for 6 months each time ), nor were they following on from each other , as in "3 successive days", for instance.

[bobrussell]

There is nothing in the rules to say that they cannot do so; no latitude is required.

If the government don't want people to do this then they should change the law; not rely on ECO's misinterpreting the existing rules and guidance.

The rule appears quite clear to me.

intends to leave the United Kingdom at the end of the period of the visit as stated by him; and does not intend to live for extended periods in the United Kingdom through frequent or successive visits

Surely successive visits of just under six months duration breach the above?

If you check the original post the guidance notes for ECO's are quoted clearly. These are not successive visits. They are long visits followed by long periods back in the applicants home country.

Six months stays, a month back home to apply for a fresh visa before returning to the UK are successive visits. One visit a year is not and the guidance notes make that very clear.

Unless the law changes to limit visits to less than six months duration the applicant is fully compliant with the rules as they stand at the moment. The ECO guidance notes clearly specify normally no more than 6 in 12 months.

Until someone changes the law and guidance the ECO is not entitled to move the goal posts.

Edited November 30, 2013 by bobrussell

[Jay Sata]

Surely the simple route is to just submit another application?

A Judicial Review would be long winded and expensive and would face problems with the applicant not being UK resident.

[wooloomooloo]

We can beat around the bush, but the rules are the rules:

...does not intend to live for extended periods in the United Kingdom through frequent or successive visits

There was, surely, no extended periods [visit visas granted] and terms of visit visas adhered to.

The visits were also not frequent as guidance infers 6 in 12.

As 7by7 states, if the goalposts have moved then what exactly is the definition of the revised rules. Nothing in law appears to have changed except the definition of the ECO. And, without the right of appeal, the ECO defines their interpretation without recourse to the applicant.

The more sinister aspect is that as the right of appeal is gradually eroded through a gamut of measures to oppress genuine applicants.

The mind boggles.

[Jay Sata]

Reading between the lines it appears this avenue would allow someone who does not qualify for a spouse visa to settle in the UK for six months every year?

[wooloomooloo]

Reading between the lines it appears this avenue would allow someone who does not qualify for a spouse visa to settle in the UK for six months every year?

As I've previously stated, in a roundabout way, a spouse visa is actually the easier of the two to obtain if the criteria is met and certainly no requirement to prove reason to return.

Please also note that the applicant is not settling in the UK under a visit visa.

[Jay Sata]

I was thinking in more general terms. For example someone from India unable to pass a language exam or income criteria could still spend five years out of ten in the UK. Six out of every twelve months rotating.

Or maybe not if it appears there is a regular pattern.

There must be some discretion left to the ECO on deciding whether to grant the visa if he feels there is an attempt to cheat the system.

Re the case under discussion. We don't know if the applicant was previously denied a spouse visa. That could have been a factor in denying

the visit visa.

Edited November 30, 2013 by Jay Sata

[Seekingasylum]

Surely the simple route is to just submit another application?

A Judicial Review would be long winded and expensive and would face problems with the applicant not being UK resident.

You appear to have a tendency to make assertions which simply aren't true. This, in the context of internet boards generally, is of little relevance in the scheme of things but it does have a significance in this particular site where folk do hope to gain some knowledge in their own applications. Therefore, when you spout nonsense it can be quite misleading to those foolish enough to attribute some importance to your comments which are seemingly based on your ignorance rather then anything founded upon the truth.

A judicial review is not a long winded process at all. From the submission of a pre-action letter to the point when papers are submitted before a judge it can be accomplished within two months, a period significantly shorter than a typical immigration appeal currently taking 5 to 8 months to be heard.

However, more often than not, the Home Office will concede a case when it appears to the government lawyers, or to the UKVI's own senior management, there is is little chance of winning or, even worse, a definitive judgement inconvenient to the UKVI might be reached. Thus, challenges are often conceded at the pre-action protocol stage.

Anyone concerned in the adverse decision can lodge an application for a judicial review. In this case that would be the British sponsor. Therefore, there are no " problems" to be faced by virtue of one party to the action being located outside of the UK.

JR applications are not necessarily expensive and most actions, whereby the Home Office concede at an early stage, i.e. the majority, involve costs in the order of £1,000 but if the HO concede at the PAP stage ( a significant number ) the costs are much less and between £300 - £500.

Edited November 30, 2013 by Seekingasylum

[wooloomooloo]

Why the difference, supplanting Indian for Thai, you naughty boy, Jay? I'm going to bend you over my knee and spank you. Just make sure you have a good quality book down your pants.

[Jay Sata]

The nationality of the applicant is not important but if the Judicial Review approach were allowed it would drive a coach and horses through the 'no right of appeal' rules on visitor visas.

Although we are discussing a Thai refusal here I'm sure this happens a lot more with applicants from the subcontinent.

Surely it's cheaper and easier to submit a new application?

Edited November 30, 2013 by Jay Sata

[wooloomooloo]

Although we are discussing a Thai refusal here I'm sure this happens a lot more with applicants from the subcontinent.

Every application on its merits, Jay.

[Jay Sata]

That's the get out clause for every denial.

[Seekingasylum]

The nationality of the applicant is not important but if the Judicial Review approach were allowed it would drive a coach and horses through the 'no right of appeal' rules on visitor visas.

Err, your grasp of English law and how it has developed seems as tenuous as your grip of the essentials is this particular case.

It is not a question of " if the Judicial Review approach were allowed " at all. Where no appeal rights exist, any administrative decison can be challenged in a court of law. The whole world and his wife practising law in the UK today knows full well that adverse immigration decisions will now be challenged through the JR process. The Home Office is well aware of this and it is scheduled for the process to be transferred to the AIT in anticipation of the forthcoming flood of applications.

Apropos your equally asinine comment that the OP applicant should simply lodge another application, you seem to have overlooked the fact that where an application demonstrates no substantive change to the basis of an earlier unsuccessful application it is almost invariably bound to be refused. In this case, the applicant would be throwing away her fee.

[Jay Sata]

We still do not know if the OP had a spouse visa refused in the past.