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Tobias
19th Sep 2007, 06:08
I have recently received a PM from a forum member who believes they may have a potential problem with a marriage visa application.

The circumstances of this particular case are somewhat unusual. I have offered some advice privately but suggested I post a brief outline of the circumstances in the public forum so that others may offer an opinion. Given the nature of the dilemma this member and their partner face, you will appreciate why it is necessary to protect the identity of the member concerned.

Any constructive opinions are welcome.

The circumstances are paraphrased here:

"My partner worked for a visa agency in Bangkok. This agency, amongst other things, obtained visas for Thai citizens who wanted to visit, settle or work abroad, mainly in Asia and Europe. My partner was encouraged to apply for a passport by the agency's owner. When the passport was granted, the agency said they would look after the passport.

It was subsequently discovered that my partner's passport was used to obtain a visa for Germany. The visa and passport was then used for another's illegal entry into Germany and someone's subsequent return. All this, apparently, went according to plan. However, a further visa application for Germany was made but this application was refused. My partner had some knowledge of what happened so I suppose is not entirely without blame.

All this took place about five years ago. My partner changed their name shortly after this from their father's family name to their mother's maiden name and obtained another passport in that name. This second passport has only been used for a short stay in Laos.

There are clearly implications here regarding a spouse visa application. Any pointers would be gratefully received."

If anyone has anything constructive to offer on how to move forward, please do. The member concerned realises that what happened five years ago was wrong and foolish and that their partner is not without blame - they don't need to be reminded of that, that is taken as read.

Tobias
19th Sep 2007, 06:08
I have recently received a PM from a forum member who believes they may have a potential problem with a marriage visa application.

The circumstances of this particular case are somewhat unusual. I have offered some advice privately but suggested I post a brief outline of the circumstances in the public forum so that others may offer an opinion. Given the nature of the dilemma this member and their partner face, you will appreciate why it is necessary to protect the identity of the member concerned.

Any constructive opinions are welcome.

The circumstances are paraphrased here:

"My partner worked for a visa agency in Bangkok. This agency, amongst other things, obtained visas for Thai citizens who wanted to visit, settle or work abroad, mainly in Asia and Europe. My partner was encouraged to apply for a passport by the agency's owner. When the passport was granted, the agency said they would look after the passport.

It was subsequently discovered that my partner's passport was used to obtain a visa for Germany. The visa and passport was then used for another's illegal entry into Germany and someone's subsequent return. All this, apparently, went according to plan. However, a further visa application for Germany was made but this application was refused. My partner had some knowledge of what happened so I suppose is not entirely without blame.

All this took place about five years ago. My partner changed their name shortly after this from their father's family name to their mother's maiden name and obtained another passport in that name. This second passport has only been used for a short stay in Laos.

There are clearly implications here regarding a spouse visa application. Any pointers would be gratefully received."

If anyone has anything constructive to offer on how to move forward, please do. The member concerned realises that what happened five years ago was wrong and foolish and that their partner is not without blame - they don't need to be reminded of that, that is taken as read.

jvc600
19th Sep 2007, 08:57
i dont know the reasons for refusal but i would try and clear my name with the german visa authorities if possible.get in touch with the germany embassy in thailand.
i would also be informing the thai authorites about the passport use to see what they could advise, as the passport will have still the same number.
i would persume they would be contacted by the uk embassy with regards to why the germany visa was refused.

mellowsailor
19th Sep 2007, 09:13
Let us assume that the lady has told her sponsor the whole truth, and she was not complicit in the facilitations to Germany, or was herself refused a visa there.
I think my advice is to play the long game. If the proposed application is sound in all other respects - if the couple have known each other a long time, have bags of evidence of contact, support and accommodation no problem, then go ahead and apply, and declare the previous name on Q2 of the form. If asked, she's entitled to say that she changed because she has been a victim of identity fraud and leave it at that. If the worst comes to the worst and she is obliged to reveal the whole story and gets refused, I don't see why that should be fatal to a successful appeal, because they can point to a genuine relationship and the previous episode is effectively irrelevant.
If the relationship is relatively new, then perhaps wait a while until it's demonstrably rock solid, then apply and be prepared to go to appeal.
The essential point is not to be caught out in a lie, and I can't believe that the OP would have advised otherwise. If the Schengen countries do not share all their databases with the non-Schengen UK, then the risk of being caught out is perhaps small, but you can't rely on this, and if it came to light in who knows what circumstances after the lady had arrived in the UK, it might be construed as "gaining entry by deception", which is a criminal offence.
Just take time, tell the truth, and you'll get there.

richardb
19th Sep 2007, 09:26
just deleted my post. It had a fatal flaw. I will rethink

mellowsailor
19th Sep 2007, 09:39
I made my comments having looked at the UK Visas form VAF2 - Settlement, Section 2 - 2,2 "Any other name you have been known by"
If a practising lawyer says that doesn't need to be answered as I have suggested, I bow to superior knowledge.

Noi & Nick
19th Sep 2007, 12:44
Originally posted by mellowsailor:
If the Schengen countries do not share all their databases with the non-Schengen UK, then the risk of being caught out is perhaps small, but you can't rely on this Exactly.

From Schengen Agreement (http://en.wikipedia.org/wiki/Schengen_treaty#Information_sharing_:_Pr.C3.BCm_Convention)
United Kingdom and Ireland are signatories of the Council Decision (covering police co-operation) but not the Council Regulations (covering asylum, visas and border controls). So, does this mean that the embassy wont/cant check and discover the previous German visas? Possibly, but equally possibly not.

If she doesn't mention these German visas and the visa section do check then she can, IMHO, forget about ever getting a visa for the UK.

My advice, for what it's worth, is to make a complete and honest account of the matter in her application. Obviously she would have a much stronger case if she had reported the matter to the police as soon as she discovered it, but I think that if she comes over as genuine in the rest of the application then the ECO may very well give her the benefit of the doubt.
I made my comments having looked at the UK Visas form VAF2 - Settlement, Section 2 - 2,2 "Any other name you have been known by"
If a practising lawyer says that doesn't need to be answered as I have suggested, I bow to superior knowledge. I think that may be the 'fatal flaw' Richard refers to in his edit!
Originally posted by Tobias:
My partner changed their name shortly after this from their father's family name to their mother's maiden name and obtained another passport in that name. I think it is essential that she provides an explanation for this change of name. I know many Thais do change their names, as do the ECOs. However, she does not want to give the ECO cause to think that she changed her name in an effort to hide the German problem.

rolyshark
19th Sep 2007, 14:06
I'm thinking along the full and frank disclosure and then mitigate like hell lines.
Non-disclosure in my view carries too many risks in the event of discovery,even post-admission to UK.

If that is the case,this is certainly an example of where a well prepared and expertly drafted application should be made.

More information concerning the mitigation would be neccessary.
How long did she work at the agency?
Does she still work there?
Does the agency still exist?
Exactly what knowledge did she have and what did she do?
Has she advised the German embassy?
etc.

Not an easy one.

richardb
19th Sep 2007, 15:36
Originally posted by rolyshark:
I'm thinking along the full and frank disclosure and then mitigate like hell lines.
Non-disclosure in my view carries too many risks in the event of discovery,even post-admission to UK.

If that is the case,this is certainly an example of where a well prepared and expertly drafted application should be made.

More information concerning the mitigation would be neccessary.
How long did she work at the agency?
Does she still work there?
Does the agency still exist?
Exactly what knowledge did she have and what did she do?
Has she advised the German embassy?
etc.

Not an easy one.


Having given this some serious thought ( and I am a practicing lawyer in this field ) I am thinking through the permutations. As essentially what an american would call a "trial lawyer " my instinct is to focus on likely end games.

Rolysharks questions ( and I fear analysis ) are spot on . When did she leave the agency?

What is not legally wrong is not always what is moral. And of course your goal is a visa.

I suspect that if Rolysharks questions are answered you will be presented with a series of choices and consequences. The choice of course will always have to be yours. Neither myself nor any one with any sense ( or ethics ) will ever advise lying. Silence on issues one might not wish to become relevant and indeed may not be relevant and lying are uneasy bedfellows but entirely different things. Take your time on this one and if you are able via Tobias or by pm to answer Rolys very pertinent questions I think you may receive some sound advice.

Richard

rolyshark
19th Sep 2007, 17:27
Richard,I suspect both you and Tobias will see where I'm coming from on this one...

Vinny
19th Sep 2007, 19:41
Originally posted by Noi & Nick:
I know many Thais do change their names, as do the ECOs. However, she does not want to give the ECO cause to think that she changed her name in an effort to hide the German problem.

Many Thais do change their names on the advice of their astrologer (http://en.wikipedia.org/wiki/Astrologer)! Changing her name because of identity thief may not necessarily be an effort to hide the German problem. Couldn't it also be regarded as a reason to prevent future problems?

Tobias
20th Sep 2007, 02:06
Roly and Richard, absolutely correct. You echo my position. I am seeking further input from the member who in turn will need clarification from their partner (who may not necessarily be female ;))

My biggest concern is the risk of criminal prosecution, and it is that context I am seeking clarification as the response to that will also clarify the immigration issues.

rolyshark
20th Sep 2007, 05:33
My biggest concern is the risk of criminal prosecution, and it is that context I am seeking clarification as the response to that will also clarify the immigration issues.
Indeed.
There were a number of inchoate offences that sprang to mind.
Given your additional comments,there may be other reasons for the name change.

Roberrrt
20th Sep 2007, 11:11
I dont want to appear arrogant joining this topic, but if you consider all the less serious reasons that people are refused visas, then surely any sniff the embassy get that this person has been involved in immigration fraud will stop them getting the visa.
The only place where any mitigation will have any possible effect would be in an appeal, I think - based on some peoples reported experiences of dealing with embassy.
Its a very solid reason to refuse from the Home Office point of view.

Rob

Tobias
20th Sep 2007, 12:22
Roberrrt, each case is considered on its own merits. As we have seen in this forum, far too often visa refusals are often because of an insufficient application due to the applicant leaving far too much for the ECO to guess. Often the applicant has been under the mistaken belief that some evidence in the application is "obvious". It may be obvious to the applicant who knows all the circumstances of the application, but to an ECO s/he just sees an incomplete set of events and evidence.

I applaud the member here who is making sure that this prospective application is fully dealt with, with all the relevant issues fully explained.

I have an update on this, but unfortunately I am a little busy at the moment, I hope to post again in the morning.

This is not an application that is doomed, there is every chance the visa will be granted if the application is presented properly.

Roberrrt
21st Sep 2007, 07:51
OK Tobias, you're a good judge of these things.
Best of luck to the member and partner.

Rob

mick j.
21st Sep 2007, 08:31
One thing everyone has always agreed on in this forum is that honesty is the best policy.
Just a thought as they are now married could she apply for a new passport in her married name and then on the form put her mothers maiden name as previous name known by.
Oh just realised that wont work as my wifes passport is still in her maiden name with an ammendment on page 2.Inj fact my wifes spouse visa is in her maiden name and I have been told to put her set m (ILR) form in her maiden name.
EDIT
Sorry they are not yet married but are wanting to wed in the uk. Maybe they should consider getting wed in LOS then applying for a spouse visa.

Tobias
23rd Sep 2007, 03:19
Originally posted by mick j.:
One thing everyone has always agreed on in this forum is that honesty is the best policy ... Indeed Mick :thumb: And I know for certain that neither Roly, Richard nor myself will be encouraging this member (or the applicant) to be dishonest with the application. They are seeking advice on how to proceed and how to deal with these somewhat unusual circumstances.


Originally posted by mick j.:
... EDIT
Sorry they are not yet married but are wanting to wed in the uk. Maybe they should consider getting wed in LOS then applying for a spouse visa. Actually Mick, this is an application for a marriage visa so it is safe to assume the parties are married for the purposes of the help being sought.

Sorry for the delay in updating the information here, all down to me being particularly busy work-wise at the moment.

As you will appreciate much of this information is coming piecemeal from the member and their partner. It should be borne in mind that given what has occurred both the Thai and British partner are exercising caution and have been a little reticent with the information being offered, for obvious reasons. Also bear in mind that this all happened 6/7 years ago so the memory will be tainted. All that being said, I now have more information from the member to pass on:

The Thai partner worked for the agency for between 6 months and a year during 2000/1. Shortly after the Thai partner left the agency it folded, apparently for financial reasons.

The two visas applied for Germany [Edit from Tobias - this (obviously) may not be the actual country. Save that the application was to an EU embassy, the actual country concerned is irrelevant] were visit visas. They were applied for by the Thai partner in full knowledge of what was happening, indeed a not insignificant sum was paid to the partner for agreeing to do this – a little over a couple of hundred pounds.

The first ‘German’ visit visa was issued and the passport was used by the agency’s customer to visit Germany. Other than the visa and passport being used by the wrong person, the visa conditions were met with the individual concerned returning to Thailand within the terms of the visit visa. In fact the individual returned within a couple of weeks.

A further visit visa application was made several weeks/months later to the same Embassy. On instruction from the agency boss, the 2nd visit visa application was made in person (as it had to be done then). It appears there were some ‘communication problems’ with the Embassy official and was asked to return three days later. On the return, the applicant was told that the application was refused, but does not recall the reason being given for the refusal. Apart from the true identity of the actual (proposed) traveller being known, no lies were told to the Embassy, although there was clearly some deception. All the facts stated were true – the identity and documentation of the Thai partner were all true and complete, and the circumstances of the trip were accurate – just that it was someone else’s circumstances.

After the visa rejection , the agency boss asked for the partner’s passport – that request was refused and it was shortly after this that the partner left the employment of the agency. No report was made of the activity to any law enforcement agency, public authority or embassy. Indeed, there is nothing known that would suggest that anyone (apart from those involved) have any knowledge of what went on.

I am instructed the reason for changing the name in the passport has nothing to do with the agency deception. It appears this was done not because the passport (and name) was dirty, but for luck. No mention was made of the passport’s misuse.

SteveR
23rd Sep 2007, 03:29
It is very common practice for this to occur in Thailand (and probably numerous other countries I imagine). In fact it was a particularly thorny issue for NZ immigration because deported Thais would simply return to home, apply for a passport in a new name and return to NZ (this was back when they had visa on arrival for Thais) The only thing the NZ authorities could do was rely on their immigration officers to recognise the girls as they arrived back.

I would be surprised if many of the illegal Thais in the UK are actually traveling on their own passports.

What I'm trying to say is if she changed her name and got a new passport would there even be a record of her going to Germany? Is being honest in this case going to bring a load more trouble?

Noi & Nick
23rd Sep 2007, 04:36
Originally posted by SteveR:
What I'm trying to say is if she changed her name and got a new passport would there even be a record of her going to Germany? Is being honest in this case going to bring a load more trouble? There is, I am sure, a trail that leads from the current passport back to the previous one and thus to the German visa and application. Whether anyone at the British embassy would follow it is uncertain. Probably not. But if she lied and was caught, no visa. Not now, not ever.

Even if she wasn't found out at the application stage but after she had got a sv or even ILR, possible if she ever wanted a Schengen visa, then the consequences could be disastrous. Imprisonment followed by deportation?

IMHO, even if she were to get British citizenship, she would never be safe.

IMHO she has to fully explain this, and express her deep regret at being so foolish. Maybe saying that her circumstances at the time meant the offer of a large sum was to great a temptation to resist.

SteveR
26th Sep 2007, 08:14
Well I think it's a hard decision. In todays climate being honest could essentially mean she could get branded for life.

She has already shown weakness and a hard-nosed immigration official, or whoever manages the risk-assessment of immigrants may very well be of the opinion that she has committed a very serious action already and that she is not really wanted in this country.

In an extreme case we don't know what that person did in Germany and it could be criminal or even terrorist related.

I don't want to sound negative, but I work with people in the security industry involved in things like government clearances and they just don't forgive indiscretions that easily. In fact they often rely more on peoples honesty than doing comprehensive background checks.

Lucky
26th Sep 2007, 11:45
Why not simply apply for a marriage visa? In answering the question 'have you ever been refused a visa' the say yes but you are unsure of the reasons and as it was only for a holiday you did not pursue it?
If it is linked back then unless it is known that fraud was committed I doubt anything much will be made of it, we all know of many knocked back applications subsequently being granted.
In any case I think a straight forward application is required and any problems addressed then.
What do I know? Only that it is pointless to jump a fence 'till you get to it!

Tobias
26th Sep 2007, 12:36
Lucky, this is an application for a marriage visa.

Noi & Nick
26th Sep 2007, 12:52
Originally posted by Lucky:
If it is linked back then unless it is known that fraud was committed I doubt anything much will be made of it, we all know of many knocked back applications subsequently being granted. Tobias has already said
The first ‘German’ visit visa was issued.....Other than the visa and passport being used by the wrong person, the visa conditions were met with the individual concerned returning to Thailand within the terms of the visit visa. In fact the individual returned within a couple of weeks.....A further visit visa application was made several weeks/months later to the same Embassy.....It appears there were some ‘communication problems’ with the Embassy official and was asked to return three days later. On the return, the applicant was told that the application was refused If the conditions of a first visit visa are complied with then it is very unusual for a second or subsequent application to be anything other than a mere formality. At least as far as the UK is concerned and I cannot see why any other EU state would be different.

It seems to me that the 'Germans' were suspicious in some way, and these suspicions are probably on file somewhere.

If she is upfront, confesses her sins and pleads mitigation then there is a chance she will be refused. There is also a chance she will be successful.

If she tries to hide this and is discovered, at the application stage or, if successful, at a later date, then she is right in the effluent.

richardb
26th Sep 2007, 14:44
Just to say to the op I have not forgotten this post its just a bit tricky perhaps you could pm me.

Confidentially always.

Richard

duster
26th Sep 2007, 15:19
What are the legal implications of helping someone evade the consequences of a criminal act. You're all going to look very stupid if it turns out to involve something extremely serious like heavy duty crime or terrorism or human trafficking. If you know a crime has been committed does it matter that it's in another jurisdiction. Germany is a our neighbour and like us fighting terrorism. Dont you have a duty to play it with a straight bat and stop looking for the 'wriggle factor' If you help cover up a crime of which you have knowledge aren't you as bad as the perpetrator. I'd tell the german authorities because you can bet sure as hell it wasnt the first and only offence and to turn a blind eye to it only ensures its still happening. All you lawyers remind me of the George raft movie where they want him to talk and say..."If you tell us the truth I'll get you a fair trial" To which George replies "If I get a fair triel they will hang me." Then he asks for a crooked lawyer not an honest one. I also thought any barrister having knowledge of a crime and not doing anything about it was in danger of going up before their own standards body. Its not as though its privelaged information is it, given that it's posted on a public forum. You should shop the girl, shop the company and shop the crime and stop shilly shallying.

rolyshark
26th Sep 2007, 19:36
Duster-have you actually read the posts by myself Tobias and Richard?

I suggest you read my first post.

Then I point out the following by Tobias and myself-
"Tobias

Posted 20 September 2007 10:06 Hide Post
Roly and Richard, absolutely correct. You echo my position. I am seeking further input from the member who in turn will need clarification from their partner (who may not necessarily be female )

My biggest concern is the risk of criminal prosecution, and it is that context I am seeking clarification as the response to that will also clarify the immigration issues.


--------------------------------------------------------------------------------
Tobias - โทบี
Posts: 5532 | Location: London/St Helens | Registered: 21 June 2003

Ignored post by Tobias posted 20 September 2007 10:06 Show Post

rolyshark

Posted 20 September 2007 13:33 Hide Post
quote:
My biggest concern is the risk of criminal prosecution, and it is that context I am seeking clarification as the response to that will also clarify the immigration issues.

Indeed.
There were a number of inchoate offences that sprang to mind.
Given your additional comments,there may be other reasons for the name change.

Steve aka Rolyshark "

and then this by Tobias-
"I applaud the member here who is making sure that this prospective application is fully dealt with, with all the relevant issues fully explained."

and again this-
"quote:
Originally posted by mick j.:
One thing everyone has always agreed on in this forum is that honesty is the best policy ...
Indeed Mick And I know for certain that neither Roly, Richard nor myself will be encouraging this member (or the applicant) to be dishonest with the application. They are seeking advice on how to proceed and how to deal with these somewhat unusual circumstances."

You are of course entitled to your opinion about lawyers,except the posted facts here don't fit your scenario.
Perhaps you're just a writer of fiction?

ash
26th Sep 2007, 21:41
If the European embassy refused the visa because of the previous misuse and recorded this refusal and still has the data on file. Then a full and frank disclosure may be in order however as the said agency is no more maybe an emphasis on being pressured by the employer and not fully understanding the consequences together with the elapsed time would be sufficient to get over the problem i.e. Young and stupid

Maybe a direct enquiry to the embassy concerned using the name in the previous passport indicating a desire to visit that country and requesting a reason why the previous visas was refused would determine if the misuse was detected. Its more likely a Schengen visa back then was refused because of a tightening of the sponsorship rules as second Schengen visas were not just rubber stamped.

For the record I am NOT advocating a lie but no UK law was broken in the first instance, assuming it was not the UK visited, and a vague reference to the refusal i.e. I was refused a visit visa to xxx in 2001 because of no reason to return or suchlike , given the time lapse is unlikely to be followed up in detail.

Interestingly in this instance the Thais issued a new passport so they clearly were unaware or not bothered by the previous refusal.

ash

duster
27th Sep 2007, 09:02
I repeat, If you have knowledge of an offence aren't you bound to report it? It seems pretty clear that doesn't it? Why not just say "fess up and get it over with." You cant given the present climate with international terrorism and human trafficking and money laundering be trying to find the "wriggle factor", seems clear to me, I personally dont want people using bogus passports from a country with islamic terrorists entering a fellow earopean state illegally. Also I read only last week that germany was the first prot of call for illegally trafficked woemn from the far east. Why seek to defend the indefensible. You know of a crime...report it.

rolyshark
27th Sep 2007, 09:09
You know of a crime...report it.
Well....have you?
Why not?
What additional duty do you feel any other forum member is under?

duster
27th Sep 2007, 09:21
I studied law at the LSE though what I know now you could write on a postage stamp. I also have a low opinion of lawyers, though to be fair I have met one competent one recently. The ones on this site seem knowledgeable and helpful. My opinion on this thread is informed by the fact that I hate all the petty restrictions we daily struggle against in the name of the fight on terrorism. I stood in a queue railing about having to hand in ice packs and instead carry a sack of ice cubes in an overhead locker on a recent flight and the guy behind me kept telling me what a wonderful thing our fight for fredom was and how he wouldn't mind queueing for an extra hour or three. NOT ME, but it seems to me the corollary of this acquiescence in the "global fight" is that you take terrorism seriously and if you know of someone from a country with a terrorist problem who has been involved in a passport scam to enable someone else to travel to europe then you have a duty to report it otherwise we might as well scrap all of the rest of the measures and take our chances. Now I am ready to do that because I prefer my liberty to curtailment in the name of the "global fight" against terrorism. Do you? Because if you dont then you dont have to post on this thread to know what must be done, I repeat shop the crime and the criminal.

<span class="ev_code_red">[MODERATOR EDIT (Tobias): There is no hint of a suggestion that the individual seeking help in this topic has any terrorist connection - if there was I would have no hesitation in reporting my concerns to the appropriate authorities. The suggestion made by this poster is preposterous and is without any foundation whatsoever. Please do not be put off replying to this topic because of the overreaction of this particular poster.][/color]

duster
27th Sep 2007, 09:25
Just giving you a chance to do the right thing

Tobias
27th Sep 2007, 09:27
This is a topic about a marriage visa application - any further off topic posts will be deleted.

Roberrrt
27th Sep 2007, 11:20
Isn't there an accepted period of time where this persons actions would be thought irrelevant ? Like a spent conviction. If you are going to advise them to be honest maybe the time factor will do more good than aload of excuses.
Do you think an eco will deal with this or will it go to the Home Office ?

Rob

Tobias
27th Sep 2007, 11:35
I expect this application will be dealt with by an ECO. The individual in question realises they have been foolish and simply wants to be with their British partner. There was no prosecution and no conviction, indeed barring this particular indiscretion the individual is of good character.

They both want to make sure their application is properly presented with all the relevant information clearly set out.

Noi & Nick
27th Sep 2007, 12:43
Originally posted by ash:
Interestingly in this instance the Thais issued a new passport so they clearly were unaware or not bothered by the previous refusal. Maybe they simply placed a name change stamp in the passport (as happened when Noi changed her surname) and said passport has since expired and a new one been issued.

Would the 'German' embassy notify the Thai authorities of a refusal, even if they were suspicious of the circumstances? It's a bit different to the girl a while back who was refused a new Thai passport after she 'lost' her old one because she had been deported from Japan.

I'm not surprised that a country who deports someone notifies the relevant authorities in the home country of that person, but a visa application refusal?

caller
27th Sep 2007, 13:02
I don't think you're going to get anyone posting that can provide the advice needed in the circumstances described, so why don't you close this thread?

In principle, I'm in agreement with Duster, 'though recognise that its unlikely anyone willing to post their tale here is hardly seeking to keep their planned entry on the QT. Hardly the way terrorists operate.

But why don't the "three tenors" sorry, lawyers (that was a joke :)!) sort this out elsewhere? Surely there must be a potential risk to this forum otherwise? I don't neccessarily mean by all the beasties whose eyes are evrywhere, but just by word of mouth and reputation?

I'm not posting this as a dig, just as a concerned regular.

Tobias
27th Sep 2007, 13:54
Originally posted by caller:
... Surely there must be a potential risk to this forum otherwise? ... None whatsoever. Nothing underhanded is being encouraged, nothing illegal or immoral is being suggested, no one is advocating deception, no criminals are being assisted and nothing needs to be hidden. The advice we offer in public is no different to the advice we will offer in private.

Despite the cynical mutterings of some, the integrity of the information provided here is of paramount importance. Why shouldn't this individual receive assistance?

caller
27th Sep 2007, 14:19
but just by word of mouth and reputation?

Tobias, you missed off this bit!

I'm not disputing what you are saying, but question what there is to gain by continuing with this thread in an open forum i.e inviting opinions from all and sundry when in reality, very few are actually able to offer realistic, lawful assistance, and those that can are.....well, you know who.

Just my view, that's all.

Tobias
27th Sep 2007, 14:58
I hadn't missed that caller, and I do appreciate your comments and concerns. I would hope the 'word of mouth and reputation' you mention is one of forthright, honest, unbiased information.

When individuals are in a pickle they often like to hear the differing opinions of what others think about their predicament. This way they can sum up all the issues and make an informed decision on how they may proceed.

There's been some great input in this topic and some helpful suggestions.

The integrity of some members is being challenged in this topic - those of us who are being challenged have absolutely nothing to hide and we stand by the opinions we offer.

Only should the individual seeking the assistance request the topic be deleted will it be removed from the forum.

rolyshark
27th Sep 2007, 15:22
question what there is to gain by continuing with this thread in an open forum i.e inviting opinions from all and sundry
Must admit I agree with Tobias.
The very strength of the forum is the diversity of opinion,based on the experience and knowledge of others.

The world would be a very dull place if governed by a triumvirate of lawyers.
After all,Tobias never has and never will have to have his partner apply for a visa. Richard's personal experiences are well documented elsewhere and my gf has had two visitors' visas refused!

ash
27th Sep 2007, 21:11
I'm not surprised that a country who deports someone notifies the relevant authorities in the home country of that person, but a visa application refusal?


One would assume that if the embassy concerned had discovered that said passport was being misused that they would definitely have informed the Thai authorities especially had the person travelling been involved in nefarious activities. In this case clearly they did not feel the need which implies that no major offences were committed or that they did not notice.

Either way no offence was committed in the UK and it was a long time ago and from the information published here there does not seem to be any risk to the UK at this point in time.

People should not be penalised for errors of judgement in the past but judged for what and who they are in the present.

In the guidelines for ECO's if the person concerned had committed an offence in another country then they would ignore the offence under the spent convictions guidelines after 5 years had the penalty been less than 6 months jail or a fine. It also states that "where there is reliable evidence that a person has been involved in criminal activities, even though he/she has not been convicted;" and in this case "the burden of proof is on the ECO."

http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMa...ge&cid=1035898747816 (http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1035898747816)

At that time point given that it was in all probability pre 9-11 the penalties were unlikely to over severe although in the UK they were made more so in 2002.

IMO even with full disclosure a refusal is highly unlikely although it more likely that an interview and an adequate explanation would be required.


ash

Noi & Nick
29th Sep 2007, 02:33
Originally posted by ash:
.....it was a long time ago and from the information published here there does not seem to be any risk to the UK at this point in time.....People should not be penalised for errors of judgement in the past but judged for what and who they are in the present.....IMO even with full disclosure a refusal is highly unlikely although it more likely that an interview and an adequate explanation would be required. Agree 100%

With the caveat that, IMHO, full disclosure now is essential. Not just for moral reasons but also to prevent major problems should this be discovered, either at the time of the visa application or at some point in the future.

A sincere expression of regret and contrition now will, I believe, be taken seriously; expressing such only after she has been found out will, IMHO, not.

ash
29th Sep 2007, 04:28
full disclosure now is essential. Not just for moral reasons but also to prevent major problems should this be discovered, either at the time of the visa application or at some point in the future.

Disagree completely even a criminal has the right to remain silent , if they ask the question it should be answered honestly otherwise there is no reason to volunteer the information. As for implications in the future the onus of proof in these cases is on the ECO not the applicant providing they can show that they answered all questions truthfully there is no risk what ever.


ash

Noi & Nick
29th Sep 2007, 12:52
Ash, it is not a matter of hoping the ECO doesn't ask; the questions are on the application form (http://www.fco.gov.uk/Files/kfile/VAF2Oct06,4.pdf)!
2.2 Any other names you have been known by
7.1 Is your current passport your first?
7.8 Have you ever been refused a visa for another country?
If you have answered yes to questions 7.4-7.8, please complete questions 7.9-7.15. Otherwise go to question 7.16.
7.9 Where was your previous application made?
7.10 When was it made?
7.11 What kind of visa were you applying for?
7.12 What was the reference number?
7.13 What happened? Please give the details of any forms which were served on you (e.g. Deportation Order, APP104 or
IS151A)[/ A criminal when questioned may refuse to answer, though this may harm his/her defence, but a visa applicant has to answer all the relevant questions.

duster
29th Sep 2007, 13:15
Dear Tobias, Terrorism is a reason for identity theft, that was my point and I stand by it. Of course its not likely, but sure as hell the passport fraud wasnt to allow a monk to go to a religious convention in Baden Baden

As you are so certain there is no terrorist connection perhaps you could suggest what are the reasons for identity theft. Trafficking, money laundering, prostituion. All pretty nasty aren't they.

On the subject of preposterous, no one is suggesting that it WAS with a terrorist connection just that you should be careful post 9/11 before being so certain that it was not. As for differing opinions, fine and good but when it comes down to it we all have to say full disclosure and tell the truth. Whatever the reason for the fraud if the company get away with it chances are it's still going on. Dont you have a duty to do something about that, after all it compromises everyone's security if we condone identity theft. We cant spend our days worrying about how to offer help and advice to the many ordinary couples who just want a chance of a life in the UK if we help people evade the consequences of criminal actions. It's patronising to Thai women too to assume they do not realise the consequences of their actions. It's a lot easier to say "she did not realise, she did not know" Would we be so forgiving of someone doing it in this country. No a million times no.

Tobias
29th Sep 2007, 13:33
This is a topic about a marriage visa application, not a debate about terrorism or the activities of alleged criminals. If you wish to debate those issues, please start a new topic in the Off Topic Lounge.

Any further off topic posts in here will be deleted.

Roberrrt
29th Sep 2007, 13:45
Duster,
I had similar doubts as you when I first saw this topic, although I wouldnt have quite put things as strongly as yourself.
However I also had some big, unrelated, problems with my wifes application and realise how daunting and worrying this application will seem to the couple concerned. If Tobias et al think these people are worth helping then I think they should be given the benefit of the doubt.
There is a 'human' angle to all this, and I hope the eco's remember this when they look at the application - its too easy to forget that peoples lives and happiness are also at stake.

Rob

ash
29th Sep 2007, 23:27
7.9 Where was your previous application made?
7.10 When was it made?
7.11 What kind of visa were you applying for?
7.12 What was the reference number?
7.13 What happened? Please give the details of any forms which were served on you (e.g. Deportation Order, APP104 or
IS151A)[/

the embassy in question
2000
visit
can't remember
the visa was refused but I don't remember the reason if you wish I will contact the embassy to find out

Given that they do not know if the visa was refused because of the passport miuse they would&lt; potentially be lieing if they said that was the reason.

ash

Noi & Nick
30th Sep 2007, 01:43
I do not know if the ECOs can, or ever do, check on previous applications, names and passports. I would suggest that it is possible, otherwise why ask these questions on the form?

We don't know what the ECO knows or can find out. We don't know what checks they can and do make with other countries. Obviously, with 30,000+ applicants a year (and that's just Thailand) they can only check a small sample, but what if she is part of that sample?

IMHO, if she answers Q7.13 as you have suggested then she is only digging herself a deeper hole. The ECO could (would?) easily check for him/herself. Remember, when she signs the form she is declaring that
The information I have given is complete and true to the best of my knowledge....I am aware that it is an offence under the Immigration Act 1971, as amended by the Nationality Immigration and Asylum Act 2002, to make to a person acting in execution of the Act a statement or representation
which the maker knows to be false or does not believe to be true, and to obtain or seek to obtain leave to enter in the United Kingdom by means which include deception....I declare that the information given on this form is correct to the best of my knowledge and belief.... How can she possibly hope to convince the ECO that she had 'forgotten' that she had allowed her passport to be used by another person?

If she lies, even by omission, and the ECO discovers the lie; no visa. If the ECO doesn't and issues her visa she will have obtained a visa by deception. How long before she can stop worrying that the Home Office could discover this and so stop fearing the knock on the door from immigration to deport her?

As said before, if she is totally honest there is a chance she will be refused, but also a chance (a better chance, IMHO) that she wont be. If she lies or tries to hide her past and is discovered; no visa, not now, not ever.

Remember what happened to the girl who followed your advice and 'lost' her passport in an attempt to hide something? She never had the chance to apply for her visa because the Thai authorities knew about her past and refused to issue her a new passport!

Anyway, we are merely expressing our opinions, our amateur opinions. The 'legal triumvirate' are on the case and I'm sure that between them they will come up with a course of action which will maximise her chances of success without her misleading the ECO and storing up potential problems for the future.

John
30th Sep 2007, 02:32
I do not know if the ECOs can, or ever do, check on previous applications

They can ... and they do!

ash
30th Sep 2007, 05:31
How can she possibly hope to convince the ECO that she had 'forgotten' that she had allowed her passport to be used by another person?


Your assuming that the embassy actually knew about this , its entirely possible that the visa was refused for another reason and that the misuse of the passport has never come to light. Hence the suggestion that they contact the embassy to establish why the visa was refused in the first place.



If the reason for refusal was the misuse of the passport then as I stated at the start a full disclosure is called for.

As to the previous case re Japan please note that we never heard the full story and that the refusal to issue a new passport was not necessarily a result of the advice given also please note that any further snide insinuations will not be tolerated.

ash

Tobias
30th Sep 2007, 05:35
I think there have been some very good posts in this topic and I am sure the member concerned will have found much of what has been posted very useful as they make their decision on how to proceed with their application.

This is a case that is somewhat unusual and one with many potential problems. There are serious legal connotations here which could expose the applicant to criminal prosecution. The applicant does not deny acting foolishly when acquiescing to the unlawful use of their passport and visit visa. In hindsight the seriousness of what was done 6/7 years ago has now become apparent. Naivety and gullibility certainly played their part at the time this occurred. The realisation as to how foolish this individual has been is certainly plain and a very important lesson has been learned.

My personal view on this case has not changed from the view I expressed to the member originally. Before posting my ten pence worth I would exhort readers that my view should be considered with the same weight as all the others posted in this topic – including the ‘amateur’ posts as Noi and Nick quaintly refers to. It is for the individuals themselves to decide how to proceed. My view is posted as a normal ‘amateur’ member, not as a legal ‘professional’. For the sake of expediency I will try to make this brief.

As I never tire of saying in the forums, an applicant must always answer the questions on the application forms truthfully and honestly to the best of the individual’s knowledge, information and belief. And this case is no exception.

The applicant does not have any criminal record and therefore, in law, can be considered an individual of good character. As there has been no prosecution of any alleged offence, making a full disclosure of all the circumstances of the events which occurred all those years ago the applicant will be exposed to the risk of criminal prosecution (unless prosecution is now time barred under Thai law).

A further difficulty that may arise with full disclosure is to be found in the provisions of the Immigration Rules. Paragraph 320(19) says this:

” where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.”

The wording of the law is purposely vague and is therefore open to broad interpretation. Indeed Chapter 26 of the Diplomatic Service Procedures say:

” Examples of the types of case where refusal on these grounds [Immigration Rules paragraph 320(19)] might be appropriate include ...

... where there is reliable evidence that a person has been involved in criminal activities, even though he/she has not been convicted”

In English common law there is a long established privilege against self-incrimination. Two legal maxims come to mind ’ Nemo Tenetur Seipsum Accusare’ which means ‘no one is compelled to accuse himself’ and ’ Nemo Debet Prodere Seipsum’ which is ‘no one can be required to be his own betrayer’. This common law privilege is regarded as a basic human right which is recognised in the European Convention of Human Rights and The United Nations International Convention on Civil and Political Rights.

So, within the spirit of the abovementioned privileges, my view is that the applicant could answer every question in the application honestly, without volunteering information that is not expressly solicited.

The questions which are relevant for the purposes of this topic are:

2.2 Any other names you have been known by

7.1 Is your current passport your first?

7.8 Have you ever been refused a visa for another country?

If you have answered yes to questions 7.4-7.8, please complete questions 7.9-7.15. Otherwise go to question 7.16.

7.9 Where was your previous application made?

7.10 When was it made?

7.11 What kind of visa were you applying for?

7.12 What was the reference number?

7.13 What happened? Please give the details of any forms which were served on you

There is no reason why you need to hide any answer to the information requested above. Explain the reasons for changing the name (in the covering letter or on the form at ‘Other Information’), state that this is not the first passport and advise where the other passport is, if it is available present it. Mention the grant of the ‘German’ visa and explain what reasons you recall for the refusal. If unsure, then as Ash said, perhaps contact the Embassy concerned and ask. If they say it is because the passport was used by A.N. Other – that’s good news, no prosecution and full disclosure!

By answering the questions honestly you will not be lying, you have answered with the truth. If an interview is called, then the applicant should be prepared to deal with the issues, should they be asked. Do not lie, if the applicant considers the potential risk of prosecution too high then the applicant should exercise the right not to self-incriminate. Bear in mind the British Embassy is not a law enforcement agency, and may have no interest in passing on the information they receive from you in any event.

If the visa is refused on the grounds of Paragraph 320(19) because the Embassy found out that you had not disclosed these facts then I believe you will have grounds for appeal. The grounds for appeal would include the privilege against self-incrimination. The applicant is entitled to assert that they should not be required to answer a question if to do so would tend to incriminate them in the commission of a crime.

This is certainly one of those circumstances where professional advice should be taken in the application process. I believe the application should be made using the services of a UK based Level 2 (or preferably Level 3) Immigration Adviser or a specialist immigration solicitor.

However you decide to proceed, good luck.

Noi & Nick
30th Sep 2007, 05:41
Ash, you have given your opinion; don't mention it and hope no one ever finds out.

I have given mine; come clean and express regret.

Following your advice could have disastrous consequences. The references to the previous occasion when you gave such advice and the consequences of following it are not 'snide comments' but an example of what can happen if one is foolish enough to hope one wont be found out.

If you cannot tolerate the truth, that is your problem.

Tobias
30th Sep 2007, 05:47
Originally posted by Noi & Nick:
... I have given mine; come clean and express regret.

Following your advice could have disastrous consequences. The references to the previous occasion when you gave such advice and the consequences of following it are not 'snide comments' but an example of what can happen if one is foolish enough to hope one wont be found out ... That's all well and good Nick, but you do not appear to have given proper consideration to the potential of a criminal prosecution. I would think it unlikely, but none the less, there is still potential.

P.S. Less of the personal digs, no need for it.

ash
30th Sep 2007, 06:54
Nick
As usual your deliberately misconstruing my advice and implying that I am less honest than your good self, this is simply not the case as at no point have I suggested that they cover up anything.

ash

Noi & Nick
30th Sep 2007, 13:44
Tobias, with respect, I feel that you are overlooking the declaration on the application form
The information I have given is complete and true to the best of my knowledge.....
(My emphasis) If she does not disclose her past, can she say that her answers are complete?

We don't know if the 'German' refusal was due to suspicions about who would be using the visa and passport. But what if it were? What if the British visa section do check and discover this? How would you suggest she should react if the ECO asks her if she has ever allowed her passport to be used by another? Say she forgot? That probably wont happen, but what if it does?

Maybe her best course of action is to confess all to the Thai authorities, accept what punishment, if any, they impose and then apply to the UK.

Ash, if not disclosing a relevant fact isn't, in your opinion, covering something up, perhaps you would be good enough to say what is!

I would be interested to see Richard's comments on this; he is an immigration law specialist, after all.

rolyshark
30th Sep 2007, 14:52
The difficulty is that we do not know exactly what information the Embassy has,or could have.

In my view the applicant's former employer will be well known to the Embassy and applications by employees/former employees may be "flagged". It is unlikely that the "deception" in this case was an isolated incident from that employer. Who knows what information has been given by that employer to the embassy about his employees/former employees...

Whilst I accept nemo debet,non-disclosure is a risk and would be construed against the applicant and might prove fatal. Noi's second visa application was in part refused due to non-disclosure,which was information provided/obtained from a third party.

The applicant will have to weigh up the greater evil.

Certainly specialist advice is required prior to submitting the application.

ash
30th Sep 2007, 21:32
How would you suggest she should react if the ECO asks her if she has ever allowed her passport to be used by another?


If asked that question say yes and explain the circumstances which is what I have said all along.

Steve having changed his/her name its unlikely she would be flagged as an employee of said agency (which I understand is no longer in business) and if allegations were made by the owner about ex employees I suspect that these would be down to sour grapes and as I have suggested contacting the other embassy to check why the second visa was refused would answer the what do they know question.

Nick relevant facts are like beauty in the eye of the beholder, something that happened 7 years ago that as far as can be determined had no serious consequences and in all probability harmed no one, that no one noticed and is never going to be repeated , which if at the time had been discovered and punished would by virtue of any statute of limitations been ignored anyway , I would say is not relevant.

Like accidents that happened more than 5 years ago when applying for motor insurance etc.

In point of fact not mentioning on the application for itself and mentioning it in any interview if necessary i.e. if the subject arises probably covers all the bases, then simply stating it was not put in writing to avoid incriminating themselves should cover it.

As to confessing all to the Thai authorities that would be pretty dumb as it would almost certainly make any future passport applications etc. very expensive as the Tea money would also have to pay for biscuits.

ash

In point of fact I have along with many others have covered up information when visiting the middle east as I have 2 passports one with an Israeli stamp one without done with the full knowledge of the home office :crazy:

Noi & Nick
1st Oct 2007, 00:36
Comparing this with a motor insurance application may seem attractive, but there is one important difference. Motor insurance application forms ask if you have had an accident in the last 5 years, so by not declaring an accident that happened 7 years ago one is not making a false declaration.

There is no such time limit on a visa application form.

As to whether her actions harmed anyone, well we don't know do we? Why could whoever used her passport not obtain a visa on their own merits? It couldn't have been a lack of funds as I imagine this company charged them a substantial amount.

I am still of the opinion that if she does not disclose this when she first applies then should the ECO discover it all her credibility will be gone. Even if she does get her visa then there is always the chance that it will come to light at some stage in the future, and the consequences of that could be disastrous.

However, even the legal opinion on this is divided, so what chance do us laymen have?

As said by both Tobias and Roly, this couple need the advice of a specialist immigration lawyer.

Tobias
1st Oct 2007, 03:06
Originally posted by Noi & Nick:
Tobias, with respect, I feel that you are overlooking the declaration on the application form
The information I have given is complete and true to the best of my knowledge.....
(My emphasis) If she does not disclose her past, can she say that her answers are complete?. I am confused why you think I have overlooked the declaration Nick. I can see nowhere on the form where it asks an applicant to incriminate himself or to state whether or not he has allowed someone else to use his passport.

Again, what about the legal privilege against self-incrimination?

We have absolutely no idea why the visa was refused and hence the excellent suggestion by Ash to ask the embassy concerned. If the refusal was to do with the misuse of the passport then that is not necessarily a bad thing. At least no action was taken by the ‘Germans’ and this risk of prosecution is reduced. If the application was refused for ‘insufficient reasons’ or ‘inadequate funds’ then that makes this application all the much easier.


Originally posted by Noi & Nick:
Maybe her best course of action is to confess all to the Thai authorities, accept what punishment, if any, they impose and then apply to the UK. Nick, that is absolute lunacy. It appears the principle of nemo debet is something you have difficulty in grasping. It maybe the by going to the police the police indicate they are not interested, or they may prosecute and this individual then spends a few months (or years) in a nice cosy Bangkok prison?


Originally posted by Noi & Nick:
Ash, if not disclosing a relevant fact isn't, in your opinion, covering something up, perhaps you would be good enough to say what is! It is NOT covering something up. Again, nemo debet. Now ‘making up’ additional information in an effort to hide something you do not want to be found out about then that is covering up.


Originally posted by Noi & Nick:
... However, even the legal opinion on this is divided, so what chance do us laymen have? I don't think we are disagreeing Nick, we have simply emphasised the risks involved of the two serious issues. We both have said that it is up to the applicant to weigh up the pluses and the minuses.


Originally posted by ash:
... Steve having changed his/her name its unlikely she would be flagged as an employee of said agency ... Both names will be disclosed on the application as to not disclose the change of name would be covering up!


Originally posted by Noi & Nick:
I am still of the opinion that if she does not disclose this when she first applies then should the ECO discover it all her credibility will be gone. Even if she does get her visa then there is always the chance that it will come to light at some stage in the future, and the consequences of that could be disastrous. If the visa is refused because the applicant did not disclose the misuse of the passport then, as I said above, there is a right of appeal on the ground of the privilege against self-incrimination.

If the misuse comes to light at some stage in the future, then the same nemo debet argument will be made in any proceedings resulting from it.

Tobias
1st Oct 2007, 03:52
One further point to make which I inadvertently missed out in my initial post above, had this individual been prosecuted at the time the alleged offence was committed, there is every chance that that conviction would now be 'spent' under the provisions of the Rehabilitation of Offender's Act and therefore should not normally be considered by the ECO.

rolyshark
1st Oct 2007, 05:03
Steve having changed his/her name its unlikely she would be flagged as an employee of said agency
I note Tobias has dealt with the most obvious point here,but I would consider it naiive to believe that any flagging is done on name alone.

The acquisition of more information will assist the applicant in making an informed reasoned decision. Ash's suggestion to discover the reasons for refusal is valid and very relevant.

I can see the merit of Tobias' overall strategy and nemo debet as a (successful) appeal,but more information and thereafter a reasoned decision may assist the applicant more. After all,only the applicant knows the full facts,but what they don't know is how those might be interpreted. The latter is what we are trying to assist.

I had considered the spent conviction scenario and would use it as part of the mitigation. That said,there remain the widely drafted "catch-all" powers of exclusion on the grounds of common good.

Noi & Nick
1st Oct 2007, 11:50
Originally posted by Tobias:

Originally posted by Noi & Nick:
Maybe her best course of action is to confess all to the Thai authorities, accept what punishment, if any, they impose and then apply to the UK. Nick, that is absolute lunacy. It is a suggestion, and it would wipe the slate clean. Although she (or he, but I'll use she to keep it simple) may then be liable to be refused a visa under Para 320(18), but only if this offence committed in the UK would attract a prison sentence of 12 months or more. Would it?
It appears the principle of nemo debet is something you have difficulty in grasping. Not at all, Tobias. I fully understand that she cannot be forced to incriminate herself. I am suggesting that she chooses to do so, at least in her visa application.

I am still not convinced that failure to disclose this voluntarily will not, if the ECO were to discover it, lead to her being refused under Para 320(19). Even if the ECO does not discover this and so issues a visa, is she not still at some sort of risk should it come to light at a later date? That is being deported or having her ILR revoked under Para 2.1 of S.76 of the Nationality, Immigration and Asylum Act 2002 (http://www.ind.homeoffice.gov.uk/documents/asylumpolicyinstructions/apis/revocationofindefinateleave.pdf?view=Binary) because her original leave was obtained by deception.

But then, I suppose it depends on how one defines deception. To my mind not disclosing a material fact that has a direct bearing on the application, until and unless directly asked about it, is deception. From your recent posts I guess that the law says differently. :shrug:

Tobias
1st Oct 2007, 12:24
As the applicant has (1) not been convicted of any criminal offence; (2) has not lied in the visa application; (3) has provided no false information or (4) provided any false documents in support of the application then no deception has occurred.

In the absence of a conviction there is no risk of a refusal under Para 320(18) of the Immigration Rules. As there has been no deception there can be no proceedings under Section 76 of the Nationality, Immigration and Asylum Act 2002.

Even if a visa is issued and it is subsequently discovered that the alleged offence may have taken place, the defence to any proceedings flowing from that will be based within the common law principle of nemo debet, amongst others.

Do I believe there is any chance of a challenge for failing to disclose the alleged offence should it be subsequently discovered? No. Any such action could be argued to be a an abuse of process, contrary to the rule of natural justice and not in the public interest. Why? There was no deception and no lies.

Now, if the individual had been convicted of the alleged offence and lied about the conviction (if it was not a 'spent' conviction) then that could be construed as obtaining a visa by deception.

Noi & Nick
1st Oct 2007, 12:57
Originally posted by Tobias:
In the absence of a conviction there is no risk of a refusal under Para 230(18) of the Immigration Rules. What about Para 320(19)?

From DSPs Chapter 26 (http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1035898747816#point%20five%20one)
26.5.1 - Refusal on grounds that exclusion is conducive to the public good
Paragraph 320(19) of the Rules allows ECOs to refuse applications where the person’s exclusion from the UK would be "conducive to the public good".....Examples of the types of case where refusal on these grounds might be appropriate include.....where there is reliable evidence that a person has been involved in criminal activities, even though he/she has not been convicted Of course, the applicant admitting to the past crime would be reliable evidence. However, the DSPs says that ECOs are allowed to refuse on these grounds, not that they must; they say that refusal on these grounds might be appropriate, not that it definitely is. So the ECO is not obliged to refuse, it is discretionary.

Surely the ECO would be more inclined to use this discretion in the applicant's favour if she disclosed her past voluntarily rather than the ECO finding out about it from a third party?

Tobias
1st Oct 2007, 13:31
That is a reference to Para 320(19) of the Immigration Rules and I have already commented on that in my original post above.

What you have also missed is that the ECO has the burden of proof in such circumstances. If there is no proof, there is no discretion; if there is no discretion, there is no chance of a refusal under Para 230(19).

Should the ECO find out about the alleged offences and brings them to the attention of the applicant, the applicant simply needs to explain that:

(1) they did not consider the information relevant for the current application;

(2) they are entitled to assert that they should not be required to answer a question if to do so would tend to incriminate them in the commission of a crime;

(3) had the applicant been tried and convicted of the offence at the time it is alleged the passport was used by another then any such conviction would probably now be 'spent' under the provisions of the Rehabilitation of Offenders Act and consequently should not be considered in the current application;

(4) that the applicant denies any wrongdoing and is entitled to confront those who allege such an offence took place and to examine and challenge any evidence presented by a prosecution in the process of determining culpability or guilt and

(5) the amount of time that has elapsed from when the alleged offence took place makes it difficult, if not impossible, for the applicant to properly or adequately defend any such prosecution or allegation.

Noi & Nick
1st Oct 2007, 14:23
Originally posted by Tobias:
What you have also missed is that the ECO has the burden of proof in such circumstances. If there is no proof, there is no discretion; if there is no discretion, there is no chance of a refusal under Para 230(19). Not missed, Tobias. The quote I made from the DSPs does talk of 'reliable evidence.'

Supposing that this evidence is a memorandum from the 'German' visa section stating that they were fully aware that both applications were fraudulent, but took no action other than a refusal of the second at the request of the Thai police who were after the big fish? This may explain the 'communication problems' and three day delay you mentioned earlier.

A fanciful notion, perhaps; but possible. After all, as said before, we do not know what the embassy may know or be able to find out.

However, you are the legal expert and so obviously your judgement on this matter is far more sound than mine. I hope I have not offended you by questioning it.

John
2nd Oct 2007, 00:39
Nick, I think you are failing to appreciate that rule 320 of the Immigration Rules is just a backstop to be used by an ECO and is rarely used in isolation as a reason for refusal but, from the ECO's point of view, to strengthen the "reasons for refusal".

Indeed whenever, thankfully rarely, rule 320 is used by an ECO, the failure should be considered a "bad failure", and in practice it would prove very difficult to overturn such a refusal.

In short, Nick, you are overstating the importance of rule 320, which frankly could probably be used to reject the great majority of visa applications, if the ECO was so minded.

Chris4Cat
2nd Oct 2007, 01:48
My opinion on this would be to tell the truth. I'm not a lawyer but if it was me I would be worried even if I got the visa. Every time I applied for housing, tax, NINO, a job, a Schengen Visa, left and returned to the UK, a mortgage etc etc - why live your life wondering if the slow investigative agencies finally catch up with me. Because if THEY DO then surely there's no chance of getting the visa?

You can show regret for being taken advantage of 6 years ago, but what about falsifying a visa application two weeks ago - that's hardly remorse.

So to answer the question - explain what happened in a very long boring letter that stretches over 4 A4 sheets of paper written in Times 7pt squashed leading and the ECO will probably get fed up and just say yes to the visa!!

Christopher

Tobias
2nd Oct 2007, 12:28
Originally posted by Noi & Nick:
... I hope I have not offended you by questioning it. Not at all Nick, I am more than happy (when time permits) to offer a deeper explanation of the legal intricacies. Lively debate is healthy, the whole purpose of this topic was to air the various possibilities and potential consequences. You have been a significant contributor to the debate and I'm sure your views will be taken on board by the member concerned.

You will no doubt have noticed that neither Roly, Richard nor myself have advised or recommended a particular route. We have merely commented on the possible legal consequences and reasonings of the options available and commented on the strengths and weaknesses of the various possibilities. We have set out the options. It is now time for the applicant and their partner to decide how to proceed armed with the wealth of knowledge they will have gleaned from this topic. It would be the same in a lawyer and client situation, the lawyer does not tell the client what to do, just identify the options and explain the legal issues. The client makes the decision.

So, definitely no offence taken, the debate has been a healthy one and one I hope we will all have learned something from.

Noi & Nick
2nd Oct 2007, 13:51
Originally posted by Tobias:
Lively debate is healthy.....the debate has been a healthy one and one I hope we will all have learned something from. Agreed. :shake:

I would like to finish by wishing the best of luck to this couple, and hope that however they decide to deal with this they achieve success.

Tobias
3rd Oct 2007, 11:53
I would like to thank everyone who has taken part in the discussion here. There has been some very helpful contributions which no doubt have given the member concerned lots to think about. I have been asked to pass on this message:

"... Please thank all contributors for their input. Even the most sceptical views have been valuable. I think that everyone understands that ultimately their is a human angle to all this and that my partner I and aspire to live out our lives together as any other happy family.
As far as our decision to progress from here, we must make a decision based on our own consciences [in full knowledge] of possible and probable outcomes ... many thanks to all ..."

If anyone has any further comments then please do share them.

caller
5th Oct 2007, 14:28
Can I seek some clarification here? I have no expertise on visa regs, but have noticed the reference to "spent" convictions here and elsewhere. As the applicant isn't British and is applying from a foriegn entity, does this count or have any meaning in regard to visa applications if they are not already in the UK?

Likewise, I have heard it mention that airside of UK airports is subject to British law - agreed. But is that as its airside, a different set of laws to landside applies i.e PACE et al does not apply.

Thats worth noting if one thinks that someone being stopped for a suspected offence is going to get access to a solicitor and all the other trappings of life in the UK once passed the threshold?

Tobias
6th Oct 2007, 02:39
Caller, it may be because it is Saturday morning :rolleyes:, I am a little confused as to which aspect you are seeking clarification.

As far as PACE (Police and Criminal Evidence Act) including the Code of Practice, then that still applies to those who are arrested by the police in the UK, even at airports. Similar procedures apply for Immigration Officers who have powers of arrest. Suspects (with some exceptions) are entitled to consult solicitors before interview and may have the solicitor present when being questioned.

caller
6th Oct 2007, 03:24
Tobias, not sure I understand myself now, it was getting late and it had been a long drive back from Nth Devon, and then we had to go and get the cat and the wine tasted good....

But there was reference to any criminal act that may have occurred as being "spent" by UK standards and I just wondered, no real idea why, what relevance this had on a visa application made in Thailand? None I would have thought? but I don't really have the answer to that.

The reference to PACE is that in this case, should an ultra alert immigration officer or whatever they are called these days, manage to elicit from the visa holder, assuming one is granted, their true circumstances, then they can be interviewed/questioned and entry refused without PACE kicking in.

Not sure why I saw that as an issue last night?

Tobias
6th Oct 2007, 04:13
Do appreciate caller that even though the application is made in Thailand (or whichever other country), the application is made under British law. So when considering applications where there are criminal convictions, convictions will be considered 'spent' or not spent under the British legal framework.

As there was no offence committed where the British have legal jurisdiction, then there can be no prosecution in the UK for the alleged offence(s) referred to in this topic.

There are only limited powers for an Immigration Officer to refuse leave to enter when an individual arrives in the UK with a valid entry clearance. I do not see any grounds here for the IO to refuse leave to enter provided the applicant has not lied in the application process or obtained the visa by deception.

ash
6th Oct 2007, 04:43
26.5 - Refusal on grounds of criminal conviction
Paragraph 320(18) of the Rules states that an application should normally be refused if that person has been convicted of an offence in any country which, if committed in the UK , would be punishable by imprisonment of 12 months or more. If ECOs are not sure whether the offence would attract such a sentence, you must defer the application and seek advice from Policy Section, UKvisas.

If there are compassionate or exceptional circumstances involved, it may be possible for entry clearance to be issued on authority from the Home Office on a discretionary basis. Applications falling within this category must be referred to the ICD for a decision. Any case involving an urgent need to travel should be separately notified to UKvisas ECO support at the earliest possible opportunity.

Under the Rehabilitation of Offenders Act, certain sentences are considered "spent" after a period of time (see Annex 26.3 for details). ECOs should not refuse an application under this paragraph if the applicant’s conviction falls within these time frames.

Tobias
6th Oct 2007, 04:56
:confused: Is there a point you are making there Ash?

ash
6th Oct 2007, 10:04
Probably that the spent convictions should be applied by the ECO to offenses committed outside the UK.ie if the offense would have been ignored by the rehabilitation of offenders act if a uk offense it shoudl also be ignored if committed outside the uk.
Damn the internet connection :bah:

ash

Tobias
7th Oct 2007, 05:50
No problem Ash, I can see now you were just reinforcing my post with your quote from the DSP. I thought there may have been an additional point you were wanting to make.

Tobias
6th Dec 2007, 06:20
For all those who took part in this debate, I thought you might like to know the outcome of the visa application.

The application was submitted in Bangkok a week or so ago. Four days later the settlement visa was issued without interview. The happy couple are now together in the UK.

The member concerned has asked me to pass on their sincere thanks and gratitude for all the input. They said they would never have managed to get through this without your help. As a direct result of the information here, the couple put together an application with all the necessary detail, evidence and supporting documentation which has resulted in them being able to live together as a family here in the UK.

I wish them both well as they begin their lives together.

Roberrrt
6th Dec 2007, 11:03
Best Wishes to them from us too
I bet the celebrations are still going on !
:thumb:

Rob and Nid