the scouser
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...Who's going to assess this? ...there may be some business opportunities here and potentially open avenues for 'corrupt agents' too. And what would be the all important fee for this..
You're quite correct in your views. If one casts one's mind back to the introduction of the ESOL with citizenship/Life in the UK test requirement, this spawned a whole new business opportunity for shonky colleges which offered passes in a week for an agreed fee. Only recently has the government sought to address this issue by requiring that colleges be accredited.
It is likely that the new rules will require that a qualification be "accredited", but which UK-based quango is going to enforce such a requirement? None that I can see. It might be the case that a candidate sits an exam with a prescribed invigilator in Thailand and that the paper is then electronically remitted to the UK for marking by a recognised body, but there is then no safeguard that the person who is being awarded the qualification is the one who sat the test.
Personally, and bearing in mind that immigration law has to allow for all of the indigenous tongues of the UK, I'm setting up my Welsh and Gaelic colleges in Bangkok, Islamabad, Delhi, Dhaka etc., not to mention Buenos Aires, to cater for the Patagonian contingent.
Scouse.
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Domestic violence can be of a psychological nature as well as physical, but the facts and case would need proper preparation. Your sister-in-law could also seek permission to stay in the UK on the basis of access to the 2-year-old child. That the child's British passport has gone astray does not remove her "Britishness".
If things are as you describe, then your sister-in-law and her husband could separate, she could initiate a county court action for a residence/contact order in relation to their daughter and seek permission to stay on that basis. Her elder daughter should then be given leave in line with the mother.
Scouse.
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Sole responsibility is to be decided upon who, in fact, provides the direction and control in a child's life. It's not a matter to be decided only between the parents, but perhaps, the parent and the child's carer. If more than one person (or entity, e.g. a boarding school) is providing the direction and control, then responsibility is shared and not sole, and the visa application could fall to be refused.
However, if a child and the sponsoring parent both appear on the same tabien bahn to the exclusion of the other parent, then sole responsibility is effectively a given: the parent and child live at the same house and, of course, the former would look after the latter. But, this only applies where the sponsoring parent and child are applying for visas at the same time. Where the sponsoring parent has already spent a period of time in the UK whilst the child has continued to be in the indigenous country, the child must have, by definition, been cared for by another person, and it is in such instances that sole responsibility might be questioned.
Scouse.
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On the assumption that it is the UK in which you intend to study, I'm afraid I'm of the opinion that it's not worth wasting your time and money on either an admin review or a re-application.
Tier 4 visa refusals do not carry a statutory right of appeal, only, as you say, an administrative review, which means that the decision is looked at again by a different Entry Clearance Manager. As, by your own admission, counterfeit documentation was submitted in support of your application, the reviewing ECM cannot possibly come to a different conclusion. Indeed, one would think that as you will have had to have made the application at the visa application centre in-person, you would have looked at the papers the agent had prepared on your behalf and have identified the bank certificate as bent; i.e. you had the opportunity to not submit the application and obtain a genuine bank certificate that properly reflects your financial position, but chose to proceed regardless.
Paragraph 320 of the Immigration Rules states, insofar as it is relevant:-
Grounds on which entry clearance or leave to enter the United Kingdom is to be refused....(7B) ...where the applicant has previously breached the UK's immigration laws by:
...(d) using Deception in an application for entry clearance, leave to enter or remain (whether successful or not);
unless the applicant:
...(ii) used Deception in an application for entry clearance more than 10 years ago...
You will note the imperative in the opening sentence; i.e. grounds upon which entry clearance is to be refused. In other words, the ECO is obliged by law to refuse any subsequent application you make within ten years on the basis of this deception that has been perpetrated. It is feasible to have accusations of deception withdrawn, thereby facilitating a subsequent re-application without threat of refusal under 320(7B), but in such a cut-and-dried instance as this, the chances are highly unlikely.
You're not the first to have had their life ruined by a soi-disant, unregulated adviser with no real knowledge of UK immigration law, and whilst some people persist in the belief that such companies' guarantees of 100% per cent success are genuine, you won't be the last.
Scouse.
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What is required by the rules is that the applicant demonstrates to the balance of probabilities that there will be adequate accommodation without recourse to public funds. The law does not require that a tenancy agreement of particular length of time is held, and that the UKBA in Bangkok may ask for such is of their own invention.
Ultimately, a rolling contract is as reliable evidentially as one which is valid for ten years. Although the latter may superficially be valid for longer, it could still be cancelled with a month's notice from either side. Additionally, the criterion is not to show that there is adequate accommodation, but that there will be. Consequently, there is no requirement even to have exisiting accommodation, but rather, that the applicant has sufficient financial resources to find it without having to rely upon public funds. One would presume that if Caledonia were to unceremoniously turf out her tenant with a month's notice, he would simply rent another property using his own income. It's a quantum leap to say that as a consequence of such an eventuality he would have to rely upon public funds.
Scouse.
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You mentioned that your wife has a Schengen visa, and that you may instead travel to France for some champagne and brie. It is that that could be the legal panacea. If you were to be construed as a "qualified person" whilst in France, your wife could then seek entry to the UK under the terms of the directive you quote above.
My invoice is in the post!
Scouse.
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No accusations on my part. By your own admission, your wife is a criminal.
Taking in to account what you have written, I have provided you with the legal panacea, but you can't see the wood for the trees.
Why one would want free advice that one is then going to contend, whilst being prepared to pay £145.00 per hour for the services of a registered adviser, logically defeats me, but hey-ho!
By the way, there is no firm called Londonvisa (your spelling) that is registered with the OISC.
Scouse.
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The person refused the visa should appeal by the 21 June at the latest. The instructions for doing so are included on the notice.
Also submit representations to the ECM. This can be done by e-mail to the relevant visa section. Simply cite the grounds for disputing the decision in such a way as to make your argument seem to be the logical one; e.g. such a tenancy agreement is standard and that the initial 6 months may have elapsed does not negate its legal validity.
Scouse.
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Whether switched on or not, no adviser can change the law. Additionally, that you posted the question you did on an internet forum belies your claim to have such a trustworthy adviser.
Notwithstanding that, perhaps inadvertently you have provided your own resolution to the problem, and if you live with your wife in France she may qualify for a free "visa" to join you without her criminality being an issue.
Scouse.
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Hi Cale,
Based on what you've written, of course you are quite right. The person refused the visa should definitely appeal. Additionally, it is worth submitting representations to the given Entry Clearance Manager pointing out the fundamental error of their staff's ways.
Unfortunately, ECOs these days don't understand immigration law, let alone other areas that don't normally concern them. Everything has to be spelt out to them in Janet-and-John terms.
Scouse.
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The questions that have to be addressed are:-
1. Was the offence your wife commited in Hong Kong considered to be an offence in the UK? And if so,
2. Had it occurred in the UK, could it have attracted a prison sentence of at least 12 months?
Only if the two conditions above are fulfilled can a visa be refused on grounds of criminal convictions.
Those questions have already been answered by the fact that 3 visa applications have been refused based on those two points, contained in Para 320(18) and I stated that I had no argument with those decisions.
If you are convinced that the ECO is correct in his interpretation, you have little option but to sit out the rehabiltation period.
Scouse.
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The OP hasn't stated what the conviction was for?
I believe it might make a difference to the advice offered.
It doesn't make a difference. The law is quite unequivocal: it is simply whether the "crime" would be construed as such in the UK (after all, you can't be done for something that is not illegal (in the UK)), and whether, had the offence been perpetrated in the UK, it could have attracted a prison sentence of 12 months or more.
...conviction in any country including the United Kingdom of an offence which, if committed in the United Kingdom, is punishable with imprisonment for a term of 12 months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offence had occurred in the United Kingdom.Also, 320(18) of the immigration rules pre-supposes that there is a just and fair charging/court process in the country in which the "offence" has taken place. As we all know, such a transparent process is not ubiquitous.
Scouse.
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The questions that have to be addressed are:-
1. Was the offence your wife commited in Hong Kong considered to be an offence in the UK? And if so,
2. Had it occurred in the UK, could it have attracted a prison sentence of at least 12 months?
Only if the two conditions above are fulfilled can a visa be refused on grounds of criminal convictions.
I've previously assisted in a case where the visa applicant had a conviction in a third country for prostitution and was refused on that basis. However, prostitution, per se, is not a criminal offence in the UK, so the refusal was fundamentally flawed and was ultimately overturned.
Scouse.
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http://www.ukvisas.gov.uk/en/faqs/faqapplyforvisa/2967203
Please note: children under the age of five are not required to provide biometrics as part of the application process.Scouse.
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Apologies for misreading the OP. I now realise that in this case the sponsoring parent and the child are currently living together. Therefore ignore the bits in my post above that relate to the sponsoring parent being apart from the child.
Where the sponsoring parent and child live together, and in the absence of any indication to the contrary, there's a natural presumption that the s/he has responsibility for the child. However, I'd still submit any evidence you have, such as outlined in Sumrit's post, that shows the child to be living with the sponsoring parent.
Scouse.
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As I've commented on various fora, what constitutes sole responsibility in the context of the immigration rules is set out by the Tribunal in TD 2006 UKAIT 00049.
This establishes that sole responsibility is a factual matter to be decided upon the actual circumstances of the child's upbringing, and not what legal documents may be held. It is also not only to be decided between the child's parents, but, in this instance, between the parent seeking to bring the child to the UK and his current carer; i.e. although the father may have abdicated responsibility for the child, it is possible that the person with whom he lives at the moment may have an element of responsibility, in which case responsibility is shared and not sole. In order to demonstrate sole responsibility, the sponsoring parent must show that it is s/he who, despite not having recently lived with the child, has continued to provide the direction and control in the child's life; i.e. that it is s/he who takes the major decisions about the child's care.
Possession of a Por Kor 14 does not constitute a factual matter and, notwithstanding this, is largely self-serving as it is a statement made before a local government official who makes no attempt to independently verify the contents. Consequently, the PK14 cannot be relied upon to fundamentally demonstrate sole responsibility. Likewise, an actual court order that grants a parent custody of the child shows only that s/he has legal custody, not that s/he has provided the direction and control in the child's life. Consequently, although submission of a PK14 won't undermine an application, the sponsoring parent needs additional evidence that it is s/he who continues to take the major decisions in respect of the child.
What is therefore relevant is, for example, evidence of continued contact and financial support, the length of time the sponsoring parent has been absent from the indigenous country balanced against the number of times s/he has returned to visit, to whom the child turns when in need of emotional/biological support, who chose the school the child attends and, if the sponsoring parent, whether that parent is known to the school, evidence of any letters from the sponsoring parent to the carer that instruct the carer in the manner of the child's care, and who decides when and where the child should have medical treatment.
Scouse.
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By the way, OP, for your own benefit, you may choose to change the title you have given to the attachment of your passport pages. When the thread is viewed as a guest, the attachment is not displayed but the title is:-
K_Txxxxxxxx___Passport_Pages_6___7.JPGScouse.
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The telling point in the refusal notice is the phrase (albeit badly written):-
..because further investigations have revealed from information held within the British embassy does not support this.The ECO is stating that the UKBA's own records indicate that either you or your wife have had earlier immigration dealings with them on a matter unrelated to the current application (or even applicant). Bearing in mind the data protection laws, and that it is your wife's application, they can't precisely disclose to her any information they may have about you, which suggests that it is in relation to you that the perceived information is held. Indeed, if the ECO thought your wife was misrepresenting herself, he would have made a reference to deception in the refusal notice.
Anyway, it'll all come out at the appeal.
Scouse.
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Yes. You might have sufficient savings with which to support your spouse, or you might have a third party who is willing to provide realistic financial support:-
http://www.supremecourt.gov.uk/docs/uksc_2...95_judgment.pdf
Scouse.
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...but the partner if legible...
Moss, I think you've hit the nail on the head. So many problems in a relationship resolve to one party not being able to properly read the other.
Scouse.
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I have stated many times why I think regulation 21 para 4(b ) seems to cover this. It seems to me to be saying that a minor cannot be refused on public policy, public security and public health grounds, except on imperative security grounds, unless it is in his best interests. That is, a child can be refused if the refusal is in the interests of that child.
So, what it means is that where it is in the child's best interests, he can be refused on public policy grounds, yet you accept that public policy is not relevant in this instance. Such a stance does not add up.
Whether this does actually have any legal basis is not for us to decide; it is for the courts. I am assuming that no judgment by any court or tribunal, up to and including the European Court of Justice, has been made on this point; otherwise I am sure that you would have cited it before now.Interpretation of the law should be at face value; i.e. words are given their usual meaning. It is you who are trying to infer a meaning that doesn't exist. There is nothing in the regulation you cite for a court to rule upon: its meaning is clear to all except those who are clutching at straws.
I don't intend to pursue this discussion any further, and indeed, my involvement in this thread has reminded me of why I generally stay away from this forum, but for the benefit of those who are interested, we have heard in this thread from, inter alia, an OISC-registered adviser, a solicitor and another individual whom I know to be a legal professional. They have all presented the same argument; i.e. the ECO has no power in law to refuse the OP's step-child's family permit application on the basis that it is claimed he did. The one dissenting voice is an ex-driving instructor (and I don't mean that pejoratively). Res ipsa loquitur!
It can be unsettling to have deeply seated opinions debunked, but there's no point trying to defend the indefensible.
Scouse.
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The UK ratified the UN convention in 1991; with certain reservations, none of which are relevant to this discussion. Whether the regulation in question is merely the UK paying lip service to the convention or not is moot. The regulation is there and Para EUN2.21 of the ECGs appears to be guidance to ECOs on interpreting and applying it when dealing with EEA applications from children.
I beg to differ. The UK ratified the convention in 1991, but with certain reservations that are very relevant to this discussion. Until 2008 the UK did not accept that the convention applies to migrant children, and it is only since then that the government has amended immigration-related legislation to ensure it is compatible with the convention in its entirety, hence the addition of the phrase in the European regs to which you refer.
http://www.bbc.co.uk/blogs/thereporters/ma...rights_opt.html
Indeed, the revised wording of the regulation is interesting in itself in so far as it phrases the reference to the convention in the negative; i.e. it's in the best interests of the child to be kicked out, rather than in the best interests to be allowed to stay. It is therefore lip service.
Furthermore, you continue to rely upon regulation 21(4)(b ) to justify your assertion that the ECO is able to seek redundant evidence of parental responsibility. However, that section is headed:-
Decisions taken on public policy, public security and public health groundsYou accept that public policy, security and health is not relevant to the decision under discussion, but then seek to substantiate your view by reliance upon exactly such a regulation. Such a stance does appear rather perverse. If you continue to maintain that the ECO was intra vires in refusing the OP's step-child for the stated reasons, please can you direct us to a relevant regulation that permits him to do this?
Scouse.
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I accept that this is not a public policy, health or security concern. What is confusing me is the word 'unless' in the regulation.It seems that your contention is that a child who is undisputably defined as a family member by the regulations can still be refused a family permit on the basis of public policy, security and health. You further add that the lack of evidence of parental responsibility is sufficient cause for the ECO to have public policy concerns. However, the legislation itself makes it clear that the latter is not a public policy consideration, and therefore cannot lead to refusal of a family permit application on public policy grounds.A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:-
(b ) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
You have gone into great detail about what it doesn't mean, but can you please explain what it does mean?
Paully, you say
and, Scouse, you seem to be agreeing with this. Which seems to suggest that it is reasonable for the ECO to check that the sponsoring parent does have responsibility and/or permission from the other parent and/or even legal custody before issuing a permit to a minor. Yet earlier you said that it was no business of the UK who had custody!under law a parent automatically has parental responsibility simply by being a parent, unless this has been specifically taken away by a court.Can you clarify this, please?
Sorry to be a pain, but I am sure you understand why it is important to get this cleared up.
The regulation you cite, and as Paully stated previously, simply gives lip service to the convention to which the UK has now signed up. It essentially says that the UK won't exclude a minor on public policy or public health grounds unless such a decision can be dressed up as being in the child's best interests, which they are bound to consider before making an exclusion order.
I would suggest that where it is established that the sponsoring individual is the parent of a child as claimed, the ECO simply doesn't need to check that s/he has responsibility, as it is a legal given. Custody does not enter in to the equation as, going back to the original point, there is no requirement in law (either the immigrations rules or the European regs) to demonstrate such. Even if one were to think it reasonable for an ECO to make such an enquiry, he has no lawful power to actually do so, and that is where the ECGs diverge from legislation.
Going back to the European regs, it is clear that there is no requirement for a sponsoring parent to demonstrate either responsibility or custody beyond that s/he is actually a parent of the child. Furthermore, you now accept that a perceived lack of evidence of such responsibility is not a public policy issue. I'm therefore at a loss to understand how you think the ECO was intra vires in refusing the OP's step-child's family permit on the grounds that he did. Indeed, again as previously stated, even the more-stringent immigration rules do not require that custody is established in relation to a child, but that sole responsibility is. However, legal minds finer than ours have established that what constitutes "sole responsibility" is not a matter of having a signed letter or court document, but a consideration of the real and actual circumstances of the child's upbringing. To think that obtaining a visa is a simply a matter of providing the "right" documents manifests a certain naivety as it is the circumstances that speak and not how many bits of paper one may have, to which ultimately no weight may be attributed.
Scouse.
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Very succinctly put, Paully, and a very valid point that acceptance by the UKBA of an individual being a child's parent is, in the absence of any indication to the contrary, prima facie evidence of parental responsibility.
It seems that the ECO in this case has sought to apply the sole responsibility requirements of the immigration rules to a European-type application, which is, of course, specifically prohibited as established by Metock.
Scouse.
Foreigners Who Want To Marriage In Uk Must Speak English
in Visas and migration to other countries
Posted
Ah, those were the days: when half the world was pink and Britannia ruled the waves.
It's a shame that times have moved on, and by the way, "Great Britain" is not a nation, but a country of two nation states and a principality.
Bearing in mind these days of European integration, Moss, I award you 10/10 for your use of French, which incidentally means "ar*e of a bag".
Scouse.