news

Immigration Appeals gone for most applications
Immigration Appeals severely restrictedFrom 6 April 2015, legislative changes have restricted the ri ...
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Evidential flexibility now in Immigration Rules!
Good news for people applying under the Points Based System (including Tier 1 General, Tier 1 entrep ...
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Entry Clearance appeal successes

Spousal entry clearance refusals on maintenance grounds

Over the last 6-12 months we have seen a significant rise in the number of spouse visa refusals on maintenance grounds. The changes to the maintenance requirements and in particular the requirement for a couple with no children to show income of at least £18,600 have made it very difficult for many people to successfully sponsor their spouses to join them in the UK. This matter has been heavily litigated in the Courts and it has been argued that the requirement is unfair in many cases. We are awaiting two decisions from the Supreme Court in the hope that the rules might be overturned.

In the meantime, quite apart from the injustice that the financial threshold can cause in individual cases, we have seen many applicants being refused on the basis that, despite the fact that they do have sufficient earnings, their documents or at least those submitted do not meet the strict documentary criteria. There has been a reluctance on the part of Embassies to apply the documentary flexiblity rules. These rules require decision makers to contact applicants and give them a chance to provide further documents in cases where a document is in the wrong format, or where information is missing from a document or where a copy is submitted instead of an original document. We have also seen several decisions where the very complexity of the Rules has caused decision makers themselves to make errors when applying them (particularly when considering combinations of income sources such as savings).

If you have been refused a spouse visa on maintenance grounds or if you are preparing an application and concerned to ensure that you meet the requirements, please contact us and we will be happy to discuss your case with you.
 
January 2016



Entry clearance Judicial Review – previous criminal convictions not disclosed

One of the most common reason for refusing an entry clearance application under the general grounds for refusal is for the failure of the applicant to disclose prior criminal convictions. Where an applicant does not provide details of a previous conviction on an application form then their application will usually be refused under Paragraph 320(7A) of the Immigration Rules. They will also be told that any future applications will be refused under 320(7B) which is applied against someone who has used deception in an immigration application made in the last 10 years.

We have had some success in overturning these cases, usually through the Judicial Review process as in many of these cases there is no right of appeal. There is often scope for challenging refusals on these grounds due to a disparity in some cases between how the law says paragraph 320(7A) and 320(7B) should be applied and how it is applied in practice. The Court of Appeal considered the general grounds provisions in the case of AA Nigeria [2010] EWCA Civ 773 and found that both paragraphs of the rules required the decision maker to prove that the applicant had been dishonest. It is not enough in such cases for there to merely be a misrepresentation. It has to be shown to have been made dishonestly.

In cases where a serious criminal offence has not been disclosed, it is going to be difficult for an applicant to argue that he forgot about this prior offence or did not realise it was a criminal offence. For more minor offences, however, such as traffic offences, applicants do often forget to declare these or to fail to realise that they have received a criminal conviction. In such cases, there is little reason for applicants to fail to declare these matters intentionally as the offences themselves are unlikely to be sufficiently grave to justify a refusal.

In one recent case, a client of ours was refused a visit visa for failing to declare a minor offence from over 7 years prior to the date of the application. We challenged the decision by threatening to lodge a Judicial Review and the Embassy concerned reviewed their decision and then issued the visa.

December 2014


Entry clearance judicial review – failing to disclose prior breaches of the immigration rules

It is common for Embassies to refuse entry clearance applications due to previous breaches of the immigration rules, such as overstaying. It is perhaps more common, however, for an application to be refused due to an applicant failing to disclose a prior breach of the rules. This kind of refusal is what is known as a refusal under the general grounds of the immigration rules. Such a refusal can have an extremely detrimental affect on an individual’s record. Their current application will be refused under paragraph 320(7A) of the Immigration Rules and any future applications likely to be refused under 320(7B) of the Immigration Rules for reason of the use of deception in a previous immigration application.

Applicants, however, are sometimes confused about whether they have previously breached the rules and how to explain this on their application forms. A common problem is the question in the form which ask “have you previously been required to leave the UK?”. We have had a number of clients who were confused by this question and despite explaining elsewhere on their application that they had previously overstayed, did not appreciate that they should provide details of an overstay here.

In each of these cases, we were able to get the refusal overturned as it was clear that the applicant had not used deception.

September 2014


...More spouse entry clearance successes


We have recently had a number of spousal / PBS family member entry clearance appeals which have been successful. In four of the appeals, the overseas applicant had previously overstayed in the UK and was considered as having a bad immigration history, resulting in refusal under para 320(11) of the Rules. In another appeal, the Sponsor was receiving Child Benefit and Tax Credits and the ECO concluded that her earnings were not sufficient to maintain herself, her dependents and her spouse, plus the ECO found that the Sponsor could easily join her husband in their country of origin.

In each of the appeals, we made strong arguments under the Immigration Rules as to why the appeals should be successful. We also raised Article 8 of the ECHR as a back-up, and provided evidence as to why the Sponsor could not be expected to live overseas. However, all of the appeals were allowed under the Rules, without the need to even consider Article 8, which was the best possible outcomes for our clients.

January 2013



Entry Clearance refusals based on para 320 of the Rules


Following on from our post below, we have recently had a number of appeals allowed on the grounds that the ECO/UKBA were not able to substantiate their allegations of deception / previous breaches when refusing an applicant under para 320 of the Rules. It is important to remember that the burden of proof rests with the ECO/UKBA when an allegation such as this is raised against an applicant and it is always advisable to challenge a refusal of these grounds, not least in order to clear your record and prevent any further entry clearance problems in the future.

October 2012


Visit Visa refusals

We continue to see a high number of refusals of visit visa applications. In most cases, the ECO has wrongly concluded that the applicant does not intend to return to their country of origin at the end of their visit. These decisions should be challenged because in the majority of cases, the ECO has no basis upon which to make such an allegation.

If your application has been refused or if your family member's application has been refused, contact us now for a free assessment of the merits of your case.

February 2012


Mandatory bans and the General Grounds for Refusal

Following changes to the general grounds for refusal under Paragraph 320 of the Immigration Rules, Embassies are using these parts of the Rules to refuse entry clearance applications on the basis of applicants having previously overstayed, breached the Immigration Rules, used deception in an application or often for having made a simple mistake in their application.

We have recently had a number of appeals involving these provisions which are often incorrectly interpreted by the Embassy officials. It is also important to understand the difference between false representations/documents, and non disclosure of a material fact as this will affect any fresh application that is submitted and will also affect your decision as to whether or not to appeal.

In many cases we have seen, the ECO has wrongly relied on paragraph 320(7B) to refuse an application and it is worth checking the Entry Clearance Guidance to see if your case was wrongly refused. Also get in contact with us if you would like further advice in relation to your particular situation.

January 2012


Tier 1 dependent entry clearance appeal - alleged misrepresentation

Our client was already in the UK as a Tier 1 (General) Migrant. His wife applied to join him from India but was refused on the basis that she had failed to disclose the fact that she had previously been "otherwise required to leave the UK" following the refusal of a previous student application from within the UK.

This type of refusal is know as refusal under the general grounds for refusal (paragraph 320 of the Immigration Rules) and refusals under these provisions are becoming more common, often involving mandatory bans of 1, 5 or 10 years.

We submitted detailed arguments to the Immigration Judge at the Tribunal. We argued that the misrepresentation was innocent, that when taken against the application form as a whole there was no misrepresentation or deception (on another part of the form the client had provided the details of the previous refusal), and further that the meaning of "otherwise required to leave the UK" was unclear and not properly defined.

The Judge agreed with all of these arguments and allowed the appeal.

March 2011


BHC Pakistan agrees to overturn spouse refusal

Our client's spouse entry clearance appeal was refused on the basis that the marriage was not subsisting and the parties did not intend to live together permanently as husband and wife. We lodged an appeal to protect our client's position but in addition, we submitted detailed legal representations to the ECO, asking him to review the decision. We also quoted a number of cases that supported our arguments and after about 2 months, the ECO backed down and agreed to issue the visa - so it is well worth trying this route as an alternative to waiting 7 months for an appeal hearing.

February 2011


Spousal entry clearance refusal - British Embassy in Bogota change their decision

Our client contacted us after his wife's application to join him in the UK was turned down on the basis that there was insufficient evidence of their relationship.

We lodged an appeal to the Immigration and Asylum Tribunal and at the same time sent detailed arguments to the Entry Clearance Manager (ECM) in Bogota, requesting a review of the decision.

The ECM amended their original decision within 6 weeks and entry clearance was granted without the need for our client to proceed to the full appeal.

January 2010


Spouse appeals


We have seen a high number of spouse entry clearance refusals in recent months but fortunately, we have also successfully appealed all of our cases. Most recently, our client, an Algerian national, married to a British national who was originally from Ethiopia. It was not believed that their marriage was genuine and entry clearance was refused. We wrote to the British Embassy and asked them to review and overturn their decision but they refused to do this, a point which the judge remarked upon at the appeal hearing, just before he went on to allow the appeal on the spot.

In another recent case, the Judge initially dismissed our client's appeal because he agreed with the ECO that the marriage was not genuine. We took the case to the senior Tribunal, where it was agreed that the first Judge had made an error of law. At the remitted hearing last week, the appeal was finally allowed so we had a good outcome in the end.

Entry Clearance Officers often make wrong and unjustified decisions and it is definitely worth appealing against these decisions.

November 2009


Dependant relatives – 2 recent successful decisions

The first case concerned an elderly dependent lone parent living in Yemen, who was under 65 years of age. The ECO raised a number of spurious issues in their reasons for refusal letter, and concluded that the parent was not living in “the most exceptional compassionate circumstances”. We submitted comprehensive evidence and legal arguments to show that she was living in such circumstances, and the Judge accepted this. The appeal was allowed under the Immigration Rules, meaning that our client will now be granted indefinite leave to enter the UK.

The second case concerned the two young sons of our client who had been refused entry to the UK to join their mother, on the basis that she did not have sole responsibility for them and nor could she adequately accommodate or maintain them. We collected various documents to support the case, including an estate agent’s report on the house, and evidence to prove the sole responsibility issue. All of the evidence was accepted on appeal and our client’s sons will now be reunited with their mother and their new baby brother.

September 2009


Indian family visit appeal allowed

Our client contacted us after he was refused entry clearance to come to the UK from India to visit his sister. The BDHC Chennai did not believe that our client intended to return to India and had questioned whether he had strong family and economic ties in India.

We presented a strong appeal to the Immigration Judge, convincing him that there was substantial evidence of our client's intention to return to India.

The appeal was allowed and the decision of the BDHC was overturned.

September 2009


Brazilian Embassy change their decision

Entry clearance to the UK as the spouse of a British citizen was denied to a Brazilian national by the British Embassy on the basis that her previous immigration history led them to believe that the marriage was not genuine. When we lodged an appeal on her behalf, we also submitted detailed representations to the Embassy and involved our client’s MP. In December, the Embassy reviewed their decision and issued our client with a spouse visa to the UK, so she was able to be here with her husband in time for Christmas.

July 2009


Kuala Lumpur BHC issue dependent partner visa

One of our clients who was in the UK as a work permit holder had previously changed employment in the UK without informing the Home Office. He then left the UK and applied to return here as the dependant of his partner, who was also a work permit holder. The British Embassy in Malaysia refused his application on the basis that he had previously been in breach of the immigration laws and also wrongly imposed a re-entry ban. We submitted detailed representations on behalf of our client, setting out the full facts of his case and explaining that he was a benefit to society and should not be denied a visa to the UK simply because of an honest mistake in the past. We received news in December that the Embassy had reviewed their decision and had issued our client with his visa.

June 09



Refusal from Algiers overturned

Our client had met his British wife on holiday in Tunisia. Since they had met she had visited him many times in Algeria and they had been in constant contact by telephone. The Embassy in Algiers did not accept that the relationship was genuine despite strong evidence of commitment between the couple.

After considering our legal submissions and hearing evidence from the wife the Immigration Judge did not take long to decide that in his opinion the relationship was genuine and that the decision of the Embassy in Algiers should be overturned.

The Judge was also critical of the way that the decision had been taken by the Entry Clearance Officer and ordered the grant of the visa be expedited.

April 2009


Refusal from India overturned

Our client's application to join his wife in the UK as her dependent was refused on the basis that the Entry Clearance Officer did not believe that their relationship was genuine despite having seen evidence of their relationship in the form of photos, phone bills, email and letter from friends.

We assisted our client in drafting strong witness statements and submitted a strong bundle of evidence to the AIT. The immigration Judge heard our submissions and our client's wife's evidence and was satisfied that the relationship was genuine and that the requirements of the Immigration Rules were satisfied.

The Judge allowed the appeal on the day.

September 08



Chinese Marriage Visa Granted

Our client's application was refused on the basis that she and her husband had not provided sufficient evidence of their ability to maintain and accommodate themselves. One reason was that her husband was overdrawn with the bank.

We submitted detailed representations requesting a review of the decision arguing among other things that no proper consideration has been given to our client's prospects of employment considering that she was a young graduate who spoke good English.

The British Consulate indicated that they were prepared to change their decision within 24 hours of us lodging the appeal with them.

July 08

If you have been refused an entry clearance visa or would like help with an application then contact Adam Reid or Lisa Amin at our offices on 0845 3889623 or email adam@advisasolicitors.co.uk.

success stories

Tier 1 and Tier 2 Appeal and Judial Review Victories
The Home Office have been interpreting the Tier 1 and Tier 2 requirements very strictly.

We have had great success in winning many appeals and Judicial Reviews against Tier 1 and Tier 2 refusals.
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Entry Clearance Appeals
Decisions of Embassies and BHCs overseas sometimes fail to fairly consider an individuals case. Refusals over the last few months have often been on maintenance grounds on the basis of minor issues with documents.

We have an excellent record of overturning unfair decisions made by Entry Clearance Posts.

See more details of our recent successes.
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