Applying for a Visit Visa whilst awaiting Appeal on Spouse Visa

[ukguy51]

Hi, Just asking if anyone has or knows if I it is possible to apply for a Visit Visa whilst awaiting the outcome of an appeal for a spouse visa refused.

The reason is the affect this is having on my disabled son he was born with Down's Syndrome and is 6 he attends a special needs school in the UK and has mental and physical impairments and his understanding of my wife not with us is heart breaking at the least. We have taken time on building our relationship over the years and this has always been stated on Visa application in the past about making sure our son grows to love and feel secure and safe with my wife and now he has built a strong bond with her and visa versa she loves him as her own even learning Sign as well as English for his learning.

The reason on our spouse refusal was based solely on not producing enough bank statements, A document my local planning department gave me which was wrong ( we had no idea until we was refused) even though I showed them the relevant part in Appendix FM-SE. An a complete balls up from DWP over my class 2 NI, this again not my fault DWP said they would explain the issue they caused if the ECO contacted them. I did put all contact details in with the application in case the ECO wanted to contact the Council or DWP but no refused instead.

I have with help from my MP's office now got all three areas covered we was refused on and was advised to appeal which we have done. Obviously if this goes the full course then it could take up to a year from what I have read on the internet. This could have a serious impact on our son with his special needs and learning ability.

Obviously the ECO is going to look at my wife not returning after the visit however this is in fact very far from it and I will of course explain this in the application. We now have all the relevant documents originally refused on so we would be excepted on a complete new application. The reason for not just putting a new spouse app in is cost I have already laid out £1600 the health charge will not be refunded for some time to come you have to pay this again as now it is attached to the visa on line application, so another £1600 to pay for the sake of a few documents. The time a spouse visa takes is approx. 2.5 months I am in Thailand at present purely because the strain this has put on our family. I wanted to apply for a fast track Visit visa as a stop gap in the hope the ECM now having the three documents missing over turns the refusal. If he does not then I will submit a new spouse visa in April with a new financial years documents as this has to be after April 5th 2016.

The fact that we do have all the documents to qualify now hopes to throw weight on we would never break immigration rules by not returning when we know we would qualify for the spouse visa. This is purely a stop gap till either the ECM overturns the original refusal, the appeal winning in court, or a brand new application in April 2016. My wife has been to the UK for 6 months at a time for the last 4 years with very small gaps in between due to our son it would seem the ECO's took this into account and over looked the frequency so much. We have nothing further from our minds than to break any immigration rules.

[bobrussell]

I would say it is worth a go. If you provide a full explanation for the purpose of the visa and are totally honest then it has to be worth the cost of a visit visa.

The risk of refusal obviously relates to reasons to return and I cannot see a way round that beyond being open with the ECO and make it clear that your wife will return to complete a new settlement application should the refusal be upheld on appeal.

Perhaps provide the missing documentation to allow the ECO/ECM to be confident that a settlement visa is likely to be issued if applied for.

Lots of sweet talking and asking for a sympathetic hearing and make it clear that you understand a settlement application cannot be made in the UK and you have no intention of trying to make such an application.

Despite my rants about the quality of service of UKVI and the Home Office, I believe it is the system that lets people down and not the individuals!

You only have to convince the ECO that on the balance of probabilities the applicant will comply with the visa requirements and will return to Thailand. Not sure I would be willing to gamble much more than the cost of a visit visa though!!

[ukguy51]

Thanks Bobrussell, yes was intending to put the missing evidence in and the refusal notice to show we would now qualify and that we in no way would jeopardise any future application if the appeal failed. The last fast track visa my wife was granted only took 3 working days and the cost like you say is worth the gamble then we could wait the answer on either the ECM overturning the visa refusal when he receives the appeal bundle or the appeal judge. Not sure how long it takes to get from UK appeal court office to the ECM in Bangkok but I do hold up hope it will get overturned now the correct evidence is there and the reasons on 2 items not even being our fault.

I was going to ask UKVI after the visit visa application not in it of course, if the ECM overturns and if granted a visit visa would my wife have to return to Thailand purely to get a temporary 30 day visa come all the way back to the UK to then go to the post office to get the biometric card. I know it is the home office here but do hope they see sense and say she can just collect the biometric card whilst on the visit visa but expect it will cost another return flight and being apart for a short while again. Can only hope common sense prevails over thinking we all have bottomless pockets to hop on flights for the sake of it.

[Bulldozer Dawn]

The best of luck to you and your family. May you all be together as soon as possible.

[7by7]

As Bob says, there is no reason why she cannot apply for a visit visa whilst awaiting the outcome of her appeal.

But you will need to convince the ECO that she will leave the UK when her visit visa expires regardless of the outcome of the appeal, or if the appeal hasn't been heard by that time.

Daft as it seems, I think that if her appeal is successful she will have to return to Thailand to collect her settlement visa; but will be happy to be proven wrong on that point.

You presumably have an advisor helping you with the appeal; what do they say?

[Tony M]

A good application should be successful. There are human rights considerations here, of course, and that could also give appeal rights is a visit application is refused.

A couple of things occur to me. Did you bring your son with you to Thailand ? If not, then you possibly have good grounds for a visit application as there is the right to family life involved here. If you cannot afford ( at the moment) to go ahead with a settlement application, and your son cannot travel to Thailand, then your wife should have the right to be with him, as a close family member, while you qualify under the financial requirements of the rules. Any reasonable ECO would accept such an argument. If you did bring your son with you, then the human rights grounds become slightly more difficult as the ECO will argue that the family is not separated since you have demonstrated that you can both travel to Thailand to see your wife. You could, of course, argue that this will not be possible again for some time, as you must stay in the UK to work to meet the financial threshold, and you want your family to be able to enjoy family life while you do so.

I may be totally wrong about the above, as this is really new ground, but it might work !

[bobrussell]

Actually a very recent and binding decision by the upper tribunal might get you out of trouble if you have a visit visa refused.

https://tribunalsdecisions.service.gov.uk/utiac/2015-ukut-112

The gist of this is that an Egyptian husband had a family visit visa refused on the grounds that there was insufficient grounds shown that he would return home. It resulted in a successful Article 8 ECHR challenge to the ECO's refusal. Hopefully this will make visits by a spouse more straight forward in future.

Bet they issue the visa!

[Tony M]

Actually a very recent and binding decision by the upper tribunal might get you out of trouble if you have a visit visa refused.

https://tribunalsdecisions.service.gov.uk/utiac/2015-ukut-112

The gist of this is that an Egyptian husband had a family visit visa refused on the grounds that there was insufficient grounds shown that he would return home. It resulted in a successful Article 8 ECHR challenge to the ECO's refusal. Hopefully this will make visits by a spouse more straight forward in future.

Bet they issue the visa!

Thanks for posting the determination. I hadn't seen it. It looks like my own thoughts were on the right track.

It is important, in making a visit visa application, in similar circumstances, that the matter of "family life" and "human rights" are specifically mentioned in the application. Otherwise the ECO will use a stock phrase in the refusal notice, along the lines of "I do not consider that there are any exceptional circumstances which, consistent with the right to respect for family life contained in Article 8 of the European convention on Human Rights, might warrant a grant of entry clearance outside the Immigration Rules. I remind myself this is a qualified right, proportionate with the need to maintain an effective immigration and border control, and that decisions under the Immigration Rules, are deemed to be compliant with human rights legislation"

[ukguy51]

Thanks guys for all the info. To answer a few questions

7by7 No not got proffesional help as on a tight budget but was advised by my MP's office and the home office through them that the appeal was the correct route to take. I only really went for the appeal to get the review by the ECM in the hope he sees the compassionate side and that now all documents missing are in the bundle and the solid evidence that the local council and DW screwed up (this is backed up by MP who contacted both departments) that it may get overturned at this point. If not I think a complete new application in April 2016 will be the best option with complete new bank statements for 2015/16.

The idea of the visit visa is a stop gap between the review and or a new application a year for appeal court is just to long seeing we do pass all the FM-SE now the 3 missing parts have been supplied.

Tony M No I cant bring my son to Thailand for many reasons, he has related health issues associated with Down's Syndrome open heart surgery, low immune deficiency, and suffers a lot with bad chests to name a few. That with his learning ability behind his peers I really do not think he could cope with a 12 hour flight the heat and culture difference, he is not totally mobile and uses a wheel chair at times so I just could not bring him here. That tied up with he attends a special needs school in the UK means our home has to be in the UK he just would not get that here in Thailand.

I am going to fill the Visit visa app in today as some of you said it is a cheap app to try at least with.

[ukguy51]

Just read https://tribunalsdec...c/2015-ukut-112

I actually think this pulls weight in our appeal all be it a spouse visa refusal and I did state in the apeal bundle I wish to appeal under Article 8 The right to a family life. I could not appeal against the refusal being legally wrong as the ECO refused on 3 documents missing/incorrect. These simply were not in my control and full explinations with relivent contact details were supplied.

The ECO did not weigh up against our family life more so the effect on our son with his relivent learning and physical difficulties although this was well documented in the application.

Anyway we will have to see on that one.

Question on this appeal https://tribunalsdec...c/2015-ukut-112

Do you think it wise I mention this case in the Visit visa application maybe something like........

" I would kindly like to bring https://tribunalsdec...c/2015-ukut-112 to the attention of the ECO and ask that you consider this along side of my application in light of our son"

Or do you think that is being cocky and likely to cause friction ? thoughts would be helpful guys thanks...

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[bobrussell]

The circumstances relating to 'Mostafa' (my link above) are fairly specific in some ways. The spouse had a settled life in Egypt and no intention of settling in the UK. The refusal was on the grounds that the ECO did not believe the applicant would return despite owning property etc there. The original Judge considered the ECO had refused incorrectly under immigration law. The higher tribunal decided it was right under immigration law but wrong under human rights!

It may not be a clear cut ruling that necessarily reduces the need to provide good information to suggest someone is likely to return within the terms of the visa. It is a shot across the bows though!

It does suggest that the default position should be that a spouse can visit his or her partner unless there are good grounds for an ECO to believe that the applicant will not return. I doubt the ECO's will take that course of action automatically! It should help many requesting reconsideration of a refusal.

I was going to ask Tony M if he thought it would be too pushy for applicants to mention human rights in visit visa applications or only if refused! Deleted the sentence because it is a difficult one to answer as a generality.

I, for one would include it in the covering letter in the specific circumstances where the OP has a disabled child. I would suggest these are the types of situation where human rights interference is unacceptable!

[Tony M]

The circumstances relating to 'Mostafa' (my link above) are fairly specific in some ways. The spouse had a settled life in Egypt and no intention of settling in the UK. The refusal was on the grounds that the ECO did not believe the applicant would return despite owning property etc there. The original Judge considered the ECO had refused incorrectly under immigration law. The higher tribunal decided it was right under immigration law but wrong under human rights!

It may not be a clear cut ruling that necessarily reduces the need to provide good information to suggest someone is likely to return within the terms of the visa. It is a shot across the bows though!

It does suggest that the default position should be that a spouse can visit his or her partner unless there are good grounds for an ECO to believe that the applicant will not return. I doubt the ECO's will take that course of action automatically! It should help many requesting reconsideration of a refusal.

I was going to ask Tony M if he thought it would be too pushy for applicants to mention human rights in visit visa applications or only if refused! Deleted the sentence because it is a difficult one to answer as a generality.

I, for one would include it in the covering letter in the specific circumstances where the OP has a disabled child. I would suggest these are the types of situation where human rights interference is unacceptable!

It has to be mentioned in the application. This is a good guide :

considering_hr_claims_from_visitors_guidance_v1_0_ext.pdf

[bobrussell]

The gist of the guidance notes seems to be that human rights should be quietly ignored unless the applicant specifically requests them to be considered! In a proper world the ECO should be considering these rights as a routine but that might just increase the number of approvals!

It seems every spouse visit visa application should have human rights in the additional information box plus some justification!

Had a good laugh reading:

The standard of proof that the ECO must apply is “on the balance of probabilities”. This means that it is more likely than not that what the applicant claims is true.

How nice it would be if the ECO's followed that advice more of the time!!

[ukguy51]

Hi All, update Visit visa app went in on Monday 21st with the usual rudeness and bossy attitude of VFS in Bangkok, stated to my wife you have been refused before don't expect visa to be done quick even though you paid for fast track, told her to tell them when she went back in it was 3 documents missing which are in this bundle today, women attitude was oh ok you will be ok then and seemed put out.

I was under the impression these people just do the leg work in collecting application not giving out advice. Ten minute appointment they state was nearly hour and half and made wife come out of the office, go to internet shop and print out their own receipt for the fast track fee email as I forgot to do that. Also charged her for a copy of her English test paper which was in the bundle by mistake from her spouse visa app even though this was not required for a visit visa. Oh well we are expected to put up with a **** service because we have no choice in the matter, no competition same as UKVI who's attitude is pay the fee and you takes ya chances you cant go anywhere else haha.

We did get the email two days later saying Visa application complete so now its the waiting game for delivery, optimistic because of the speed as on both previous visa refusals (spouse and visit) they took a lot longer in fact nearly a month on the visit visa even on fast track, how ever on complaint on that occasion they did refund me the fast track fee. Not sleeping well, once you have had refusals makes the few days wait even more stressful as you just never know.

Will update hopefully tomorrow as last time we did fast track in Jan 2015 (issued visit) in took 2 days via post. Fingers crossed. I did as you all kindly suggested laid heavy wait on the human rights side especially for our son, thanks guys for your help what ever the out come.

[ukguy51]

New update from above. Parcel just arrived and Visit visa issued, restored a bit of faith in UKVI. I think given we supplied the 3 missing/incorrect papers from the spouse visa refusal plus heavily weighed up on the Human rights mainly aimed at our son swayed it. We are really happy now just the appeal to deal with but at least we will be all together whilst waiting.

So at least we all know now it is possible to obtain a visit visa whilst waiting an appeal even though my wife only came back from UK on the 30th June 2015, I also stated in immigration rule VAT 1.5 that there is no rule on frequency that in our case if there should be any reason for the amount of visits with short caps in between was not a de facto residence but for Luke our son who needs this more than us. I did put reference in about the case https://tribunalsdecisions.service.gov.uk/utiac/2015-ukut-112. Also put a copy of the leaflet Every Child Matters and asked for the ECO to consider these long side of the application.

Again thanks for all your help on here guys and will keep you posted on the progress of the appeal, I am thinking now they have accepted the 3 docs or they would not have issued the visit visa that they see sense and over turn the spouse visa on review. I will certainly speak to my MP to speak with his contact in the home office (he has been really helpful in our case) and if it overturned that we can collect the Biometric card from our post office whilst on the visit visa as it seems absolute ludicrous to fly back to Thailand to collect a 30 day temporary visa fly all way back to UK to pick it up.

I will update you on that 7by7 I know common sense does not seem to be in UKVI's scope but we live in hope lol.