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the scouser

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  1. So is it the intention that breaches the terms of a general visit visa or the act itself? If someone enters the UK with a general visit visa without any intention of marrying; but then decides they do want marry whilst there, can they legally do so and if they do, have they breached the terms of their visa?...

    I refer the honourable gentleman to my earlier response.

    Intention is the key. Once someone enters the UK, intentions, and therefore concommitant actions, might change, but that doesn't per se place them in breach of their immigration conditions. Anyone in the UK who is able to marry, can marry. So, TVE's punter did nowt wrong. She applied for a 'general' visit visa, entered the UK, post-entry decided to get married and did so: nowt wrong with that.

  2. And having a son makes it all a bit different in that we don't want him going in to the national service lottery; the corollary being that we'll have to pay someone off to get him absolved.

    The reality is that our son will eschew his Thai nationality should those authorities make it too difficult for him to stake his claim to it. After all, it's not the be-all-and-end-all: just something that's "nice" to have.


  3. We recently attended the Thai embassy in London to have our son's passport renewed and the embassy employee was most insistent that he should be registered on a tabien baan in Thailand for the new passport to be issued, which he isn't. After a bit of verbal to-ing and fro-ing, the clerk said that he'd relent on this occasion, but in five years' time our son won't be able to renew his passport unless he appears on a tabien baan.

    It's not clear whether this was another instance of a bureaucrat making up rules as they go along, or official policy. He commented that there was concern at the number of "foreign Thai" with no connection to Thailand itself.


  4. It's becoming increasingly common for no explanatory statement and bundle to be submitted, too, leading one to question whether any "review" has even been carried out. The case then proceeds at appeal with nothing from the ECO before the judge other than the refusal notice.

    As you know, Tony, not so long ago failure by an IO/ECO to write an appeal statement in a timely fashion would have got one hauled before the boss to explain one's inaction. That simply no longer seems to be the case and reinforces the belief that once a decision has been made, the visa section perceives its involvement to have ceased, short of issuing the visa once the appeal has been allowed some 7-8 months later.


  5. No, she does not need a visa for entering Germany if you two travel together.

    An EEA family permit is only for the non-EU familymember of an EU-citizen, who is not a citizen of the UK, who wants to enter the UK. Since you are probably a UK citizen plus your wife already has a residence permit (ILR), an EEA permit would be completely wrong.

    Once in Germany, if you want to stay longer (i.e. not just holiday), your wife can apply for a Residence Card of a family member of a Union citizen (Aufenthaltskarte), which is valid for at least five years and would allow her to travel to any EEA country (except for the UK) without a visa and without you accompanying her. The card is purely declaratory, i.e. she has the right independently of applying for the card, the card merely makes it more easy to prove that she does have that right.

    edit: wikipedia says you can apply for a residence card in the UK too, but it takes Her Majesty's gornment nearly six months to deliver.


    Getting a Schengen visa (which should be issued gratis) would probably make life easier, but there is no absolute legal requirement for the OP's missus to have such, providing he is travelling with her.


  6. Oh dear! It sounds like a right SNAFU. I'm not laying any blame here, but the circumstances you've subsequently described do not indicate an easy resolution to your sister-in-law's case.

    A perceived deception does not necessarily have to have been perpetrated by the visa applicant: it only has to be material to the application, which it indisputably is. The employer's denial of the letter is sufficient to constitute 3rd party deception, and legally speaking, justify the refusal in the eyes of both the ECO and immigration judge.

    Consequently, the employer's credibility is shot to such an extent that even a sworn witness statement could be perceived to be self-serving. In other words, the ECO would comment that one minute the employer is saying one thing, and something different the next, leading to the conclusion that someone is telling porkies.

    The matter has already been placed before the courts, and it's been found that a deception has occurred. That is really going to be hard to overcome. In the greater scheme of things, a judge's say-so is "bigger" than an ECO's, so in relation to a future application, the ECO simply needs to comment, "Judge so-and-so found deception to have occurred, so who am I to disagree? 10-year ban!".

    In such a situation, it might be that your sister-in-law's only recourse is to judicial review.

    The "ECM" is the Entry Clearance Manager; i.e. the person immediately responsible for the visa section at the embassy in Bangkok.


  7. The problem the OP's sister-in-law faces is that in dismissing the appeal the immigration judge may well have found as fact that a shonky letter was supplied with the original application. The ECO can then simply rely upon that finding in consideration of all subsequent applications. In other words, she's not now having to address only an ECO's opinion, but the judge's too. In such a situation, I would suggest that it's highly likely that another application will be refused under 320(7B).

    Paully's advice is spot on. Armed with a witness statement from the employer and other evidence of employment, the sister-in-law could submit representations to the ECM seeking an assurance that 320(7B) will not be applied in relation to a fresh application. If given, that then paves the way for the new application to be submitted and considered on the actual facts rather than refused by cursory reference to 320(7B). The alternative is to seek a judicial review of the immigration judge's decision to dismiss the appeal, but that is the more costly route.


  8. And likewise there are some appeals that are bound to be successful as the ECO's refusal is baseless in law. It is in those instances that the appellant's costs should be covered in order to go some way towards recompensing for a 7- to 8-month delay that should not have occurred in the first place.

    Recent examples I've encountered are a child settlement visa application that was refused because no letter from the other parent consenting to the child's travel was adduced (not only is it not required, but if submitted, could be perceived as the other parent having a degree of responsibility for the child), and another child settlement case which was refused on the grounds of sole responsibility where such did not need to be demonstrated as both natural parents are in the UK with indefinite leave. In the first case, the appeal was allowed on the spot by the immigration judge and the second is awaiting a hearing.

    To have the UKBA held responsible for costs in such cases would focus ECOs' decision-making, as it would soon become apparent which individual ECOs are costing the UKBA the most money. If a given ECO were to be top of the costs tree, one would hope that a manager would have a word in his ear and tell him to pull his socks up. Essentially, it would add an element of individual accountability that is currently not there.


  9. Likewise, perhaps the notion of the UKBA paying costs for successful first-tier appeals could be introduced. This would perhaps focus some ECOs' decision-making.

    At the moment ECOs are not individually accountable for their actions, and some rely upon the fact that if a given application is refused it can be appealed, and if successful, the visa issued. However, this does not take in to account the 7-8 month wait that the applicant has had to undergo to receive a visa that should have been issued at the time of application.

    If the applicant is to be held responsible for appeal costs, so should the ECO/UKBA.


  10. If the 2 of you have been living together for the 2 years immediately preceding a visa application, she could apply for a settlement visa. Failing that, study is always an option, but you/she would need to be in a position to pay for the intended course and it would have to be shown that there exists an adequacy of maintenance for her whilst in the UK studying.

    If your girlfriend's English is at below B1 standard, she could possibly obtain a student visit visa, but this would proscribe employment. If she can demonstrate that her English is at B1 or above, she could apply under Tier 4, which would allow an element of work, but she'd still have to show 9 months' maintenance in the bank (plus any unpaid course fees) in order to hope to get the visa.


  11. my wife will be applying for her leave to remain initial settlement visa in jan 2011 i believe she does not have to undertake any assesment of her english to take the life in the uk computer test! ....

    Whilst I can see your point that the Life in the UK test is more "difficult" so should be accepted above an A1 assessment, the Immigration Rules don't actually allow for this. The law states (or will state as of 29 Nov):-

    the applicant provides an original English language test certificate in speaking and listening from an English language test provider approved by the Secretary of State for these purposes, which clearly shows the applicant’s name and the qualification obtained (which must meet or exceed level A1 of the Common European Framework of Reference)

    The Life in the UK test is not offered by any of the approved test providers, so cannot conceivably meet the above requirement of the Immigration Rules. Indeed, the Life in the UK test is not a language test, but an assessment of a person's knowledge of life in the UK.

    If your wife's English is of a sufficiently high standard, she will not need any formal tuition before sitting the language assessment, and as with the Life in the UK test, she can simply make an appointment, turn up and take the test. If you're intent on proceeding on the basis of a pass in the Life in the UK test, I wish you the best of luck, but there is a distinct probability that her settlement application would not even be accepted for consideration.


  12. Terry,

    In order to be able to apply for a settlement visa post-29 November 2010, your wife needs to be able to show that she has an English language ability that is at at least A1 level, but only in the speaking and listening elements.

    If it is felt that her English is good enough, she can undertake the test whilst in the UK as a visitor. Simply sitting an assessment does not constitute study. There are various bodies whose certificates are recognised by the UKBA, one of which is EMD.


  13. For the sake of clarification, I wasn't suggesting that ECOs lack "integrity" because they are indulging in corrupt practices, but that, nowadays, as a general thrust, they do not understand the fundamental legal basis of their job and that this gives rise to decisions (both to refuse and grant) that should not have been made.

    I think it was a different matter when I, Eff1n2ret and Visa Plus were ECOs, as we did have an understanding of the legal basis of our job and had the nous to be able to think for ourselves within that framework.

    Essentially, everything has now been dumbed down.


  14. If your wife obtains ILE on arrival in the UK, as opposed to ILE pending meeting KOL requirement, then she could potentially seek naturalisation immediately as you say there have been scores of trips over the last 8 years.

    It all depends upon exactly what visa your wife will enter the UK upon in November and the dates she's previously visited. As stated, in order to qualify for naturalisation, the general thrust is that your wife has to hold indefinite leave, to have been physically present in the UK three years before the date of application, and not to have spent more than 270 days outside the UK in those last 3 years (and no more than 90 in the immediately preceding year).

    Bear in mind that dates of departure/arrival don't count towards the 270 days' absence, but I'm sure you can work the actual figures out for yourself.


  15. Also, if the prospective ECO is to be locally engaged, s/he won't be accredited to (or should that be approved by? :) ) the British embassy as a diplomat, so will have to qualify for a work permit in his/her own right.

    Bearing in mind that the British embassy is not going to support a work permit application, it seems the job is only open to either Thai or those Brits/Commonwealth citizens who have PR.

    "Integrity" in the decision-making process has long ceased to exist. The ECOs are generally of the mindset that if an application is erroneously refused, then the applicant can appeal and an immigration judge will set the record straight; i.e. all responsibility is abdicated. If the application does not attract the right of appeal, then apply again.


  16. And, in this day-and-age, there are many UK IOs who speak only elementary English themselves.

    As I'm sure you'll agree, Tony, an IO is not legally empowered to pass an opinion in relation to a subject in which he is not qualified (e.g. a medical opinion). Therefore, in the absence of a contrary professional opinion, a pass certificate is, as Effin2ret says, a pass certificate.

    Anyway, there are many centres in Thailand that are/will be offering UKBA-accredited A1 tests. I know of two other test centres that have signed up with EMD, and EMD is only one of many accredited providers. The market is already perhaps saturated.


    PS: Perhaps it's as a consequence of Thailand being replete with retired UK IS staff! :lol:

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