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  1. #1
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    Default Appeal against a decision of an Entry Clearance Officer (ECO)

    My stepdaughter's application for a Visa to come to the UK has been refused. I am going to appeal by filling in the Form IAFT-6 and submitting it. I have read the reason to reject and think I have arguments against and that they did not look fully into the family set-up.

    The joint custody is the main reason – my wife living away while the grandparents looked after her (a common thing in Thailand) however, I am arguing that it was the Grandmother, who was responsible, in contact daily with my wife to arrange the upbringing. She died last year and the Grandfather – having no real experience of bringing up kids has really struggled. The girl is missing school, not getting up or because her uniform is not clean – anyway the Grandfather, only used to the kid behaving is washing his hands of her – in frustration.

    I don't think I argued this point strongly enough (as it was not picked up by the ECO, or ignored) and the ECO went on about schooling – I didn't think of this originally – and I can get evidence from the school that the daughter's attendance suffered after the Grandmother's death.

    So I'm filling in the form and I'm stuck (not a good sign) on this question:-

    SECTION D

    Type of Decision: (tick one box)
    Human Rights (HU)
    EEA (EA)

    Would this be Human Rights – right to a family?


    The explanation is as follows: (I'm going to write a detailed argument about what I think is wrong)

    In this section you should clearly set out the reasons why you disagree with
    the decision made by the Entry Clearance Officer. Provide as much detail as you can to
    support these grounds.

    You must do this now because you may not be allowed to mention any further grounds at a
    later date. Use additional sheets of paper if you need to.

  2. #2
    Premium Member caller's Avatar
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    Ok, I'll start the ball rolling. But I am no expert in these matters, but I think a little more info is required before anyone can assist.

    Can you confirm what type of visa you are applying for - I'm assuming settlement?

    How old is your step-daughter?

    From what age and for how long has your wife lived apart from her daughter?

    I think it would be better if you could copy here - with all personal identifiers removed - the written reason for refusal.

    Joint custody? You don't mean with the father so I believe the Embassy want absolute assurances that your wife was actually in complete control of your step-daughter, with the grandparents acting on her instructions re: schooling, welfare etc as well as paying for her upkeep. Do you have any evidence of this?

    From what you have written, I'm assuming you have covered the fathers involvement / absence?

    I'll bow out now and allow those more knowledgeable to assist. Good luck!
    'Tis me

  3. #3
    Member สมาชิก Timbo's Avatar
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    Hi Chris4Cat, It sounds like a strong case and the child needs some very urgent supervision. You should be aware that l the Immigration Tribunal is overloaded - it could take a long time, in fact our solicitor estimated 2 years on average to get through an appeal for a child. That matched our experience too. I urge you to look at the website: https://www.gov.uk/immigration-asylum-tribunal and make your case for them to do something fast especially, I quote "Send your reasons for the urgent appeal and evidence to the tribunal. Expedite Requests The First-Tier Tribunal Office of the Duty Judge Expedited Appeal Hearing Requests First-tier Tribunal (Immigration and Asylum Chamber) PO Box 6987 Leicester LE1 6ZX " I hope you can get the child to some stability very soon - good luck

  4. #4
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    Caller – Sorry yes you are correct. We do have a sole custody letter from Amphur (husband gone missing before birth) but this is about sole / joint responsibility.

    Timbo – I will look into this thanks. I don't want to sound like she is in any danger or anything dramatic – and she's 15 but since the Grandmother died 12 months ago she is fast going downhill – schooling and socialising etc. We feel that this period 15-20 is still an important parts of a child’s development, child to adult and think she would be better under our wing in the UK instead of alone in Thailand.

    I am currently at work so may have to upload the letter tonight if it is needed. I have it on screen and it says:

    "I do not consider that there are any exceptional circumstances which, consistent with the right to respect for family life in Article 8 of the European Convention on Human Rights, might warrant a grant of entry clearance outside the Immigration Rules."


    JUST SO THIS DOESN’T GET LOST IN A LONG BORING EMAIL:

    Do I this box "Human Rights (HU)" and write “I object based on my right to respect for family Article 8” and then list all the things that I object to in the refusal letter. Is this correct?


    The refusal is based on:

    1) The child's roots and culture
    2) Her normal schooling
    3) The grandfather has shared responsibility
    4) Length of time with Grandparents


    Ok I’m not going to list all the things here but they took interviews over the phone and I think that both Grandfather and Daughter were not upto it and so the interviewer took educated guesses and they confirmed yes or no.

    What got me thinking that this was the case was that:

    It is stated that Daughter and Grandfather live in a 2 storey house 2 bedrooms (good guess if you are thinking about your average Thai village house) but they actually live in a 1 storey bungalow with 3 bedrooms. They said the Grandfather and Uncle attend Parent/Teacher evenings – the Uncle died 16 years ago. So I think most of the interview was a strained frustrating tooth-pulling excersise on the part of the Thai interveiwer asking questions to a private 61 year-old Loas-speaking Thai man. I think that statements were made and they were both encouraged to confirm these were true:

    “Do you live in a 2 storey house?” “Yes”
    “Has it got 2 bedrooms?” “Yes”
    “Do you attend Parent evenings at school?” “Yes”

    I want to create a narrative for the appeal:

    1) That the Grandfather had no input in the Child's upbringing – it was the Grandmother
    2) That the information gathered is wrong – obtain a written statement from the school stating that the Grandfather does not attend parent evenings , that end of year reports were returned unsigned and the Child’s attendance at school became a worry.
    3) That some of it was mis-interpreted for instance: “Child said she has joined a volleyball club without parental approval – this shows she has independence. This is wrong. The child plays volleyball in school as part of PE there are no clubs – child felt pressured to state after school activities by interviewer.

    So each point I can refute as being untrue (by supplying evidence) or explained by reasonable thinking where no evidence is available… FOR EXAMPLE:

    It was stated that Child said she chose her school independently without any input by mother – this would have been when the child was 12. Can we realistically accept that a 12 year-old girl in a village would be given the responsibility to hire a tuk-tuk for a day visiting local schools to decide where to go? It is a fee-paying (each term) so I want to argue that the decision will have come from us because we pay – we chose the school after talking to a neighbour who sends her daughter there. OK no evidence, but any reasonable person would accept my rebuttale that we decided not the child. Could it be possible that the nervous child agreed to this statement under fear/ or confusion and that it is not true?

    So... I’m going to go through all the points in the refusal letter and counter them and try to create a story that can be told in the appeal hearing – that will hopefully move the Judge to see my part of the argument and rule in our favour. I contacted a visa company (freind recommendation) and after he read the refusal and read a much longer even more detailed rebuttal by me, he thought there was a good chance and if we had a sympathetic Judge we could get a reversal.

  5. #5
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    If your appeal takes 2 or more years (as suggested earlier in the thread) then your step-daughter will be almost 18. I've heard of people thinking that appealing will just take too long and did a complete new application addressing all of the points in the refusal. It's an extra (big) amount to pay but may be worth considering.

    From my perspective this is not about joint responsibility, it's about sole responsibility but that's a UKVI term which has a defined meaning, as opposed to a general legal term. You must satisfy that, read up on it on the UKVI website and show how you satisfy this requirement.

  6. #6
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    Steady

    I am implying that any joint responsibility, if there was any, ended when the Grandmother died and sole responsibility now belongs to the mother as the Grandfather has not had any input or responsibility to the child at any time.

    Is this a reasonable assumption?

    Sorry just add:

    I am going to submit evidence that rebuts the points in the refusal letter – (as alluded to above) school choice, decision making etc. and push very hard to show that the mother has sole responsibility – this could be difficult to prove after the child has lived with her Grandparents for so long. So, in order to help my case (I hope) I will strongly argue that the Grandmother took on the small day-to-day tasks – getting the child up in the morning, cleaning her uniform, cooking food etc. but state that even this small help is not present now that she has died and even these simple actions are not performed by the Grandfather – she misses school because her uniform is not clean, or she is not woken in the morning. (and so forth)

    So if the judge doubts that it is not possible for the Grandparents to at least have some input – can it be argued that it was the Grandmother, not the Grandfather, – i.e. The Grandmother, the mother and the daughter – all female – that had this input?

    Many thanks
    Last edited by Chris4Cat; 2nd Mar 2016 at 18:06.

  7. #7
    Member สมาชิก Timbo's Avatar
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    I'm not qualified to understand the finer points of immigration law or human rights but from my limited understanding after going through the process is that your appeal is based on the grounds that the ECO made an error in their decision. The ECO has convinced him/herself that there is enough doubt to turn the application down. The remark about "exceptional circumstances " and "outside the rules", means they don't think that her circumstances are not serious enough for her to need protection. Then there's the nebulous concept of Shared Responsibility, which trips so many up. During the process you will be given the opportunity to back up that claim with additional evidence. Your case will be to prove your wife did actually have Sole Responsibility after all or there are some serious, compelling reasons that she should be with her mum that they overlooked. I suspect points 1...4 are arguments that they've used with success with in the past that have been picked from the menu. Very much like the leading questions during the telephone interview. Effectively they've kicked your application into the long grass and it's up to the judge to find it. Seriously, I would not advise anyone to go into that court room alone. The Home Office Presenting Officer I saw in action was vicious. Get some fully qualified OISC level 3 legal advice, for sure (http://home.oisc.gov.uk/register_of_.../register.aspx) and before you submit the appeal too. We like DIY on this forum but you're playing a whole new game here and they didn't publish the rules in their entirety and the legalese is enough to baffle more than 99% of mankind. There are good links to precedent cases, given by legally savvy members if you search back here if you're really brave. Steady has a good point too, if you (or your breif) think you can address the points of refusal and can have a go at new application. Then the expense could be less than that of the appeal (OISC III's don't come cheap) and a damn sight quicker.
    Last edited by Timbo; 2nd Mar 2016 at 18:21.

  8. #8
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    Thanks Timbo (and also Steady)

    I am reading your post with interest and absorbing all the details (like Steady's – who I forgot to thank for his advice).

    It's not a difficult job ringing young girls and elderly thai villagers and leading them into answering questions that blow holes in an application.

    One of the points was "and the Grandfather feels that the Child is 50/50 about going to the UK because she may miss her Grandfather" Seriously , that was a point that was made in the refusal. So in the next application it could easily be

    "And the Child has expressed doubts about such a long flight and is scared of flying, therefore we wish not to put her under unnecessary stress."

    If you have an agenda and a meek responder, they can get them to say anything they want to give a refusal.

    - - - - - - - u p d a t e d - - - - - - -

    Also

    Just to add:

    So shall I tick:

    "Human Rights (HU)"

    and simply write in the box below on the form:

    “I object based on my right to respect for family Article 8. And my appeal is based on the grounds that the ECO made an error in their decision.”

    And list all the evidence that I will provide at the hearing: Such as:

    • Statement from school regarding poor attendance (since death of Grandmother)
    • Unsigned end-of-term school reports
    • School stating non attendance of Grandfather at Parent / Teacher evenings

    And then on a sheet of paper write out all my thoughts about why the ECO got it wrong?



    Many thanks

  9. #9
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    You say your wifes Daughter is 15. How long before she turns 16 ?

    Time is running out fast and if it really could take 2 years for an appeal, then the cynic in me says that the closer to 18 she becomes the slower the Home Office will be.
    If you're offended by any assistance I give, it says far more about you than it does me.

  10. #10
    Member สมาชิก Timbo's Avatar
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    Chris, at your stage of the game I was emotional - no, absolutely furious at the injustice of it all. What I realised later was it's a long haul and we're powerless to speed up or change the process. Use your 28 days to good effect, a calm, measured, not hot-headed response is required. Maybe you're calm already, if not, remember It's not personal, or prejudice, they're just doing their jobs as they are required to, justice will prevail .... eventually, (the delay an injustice in itself).

  11. #11
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    Not too sure about ticking human rights. The UK government have already gone to court and stated that by refusing someone to come to the UK to live with their family does not breach human rights. The family can live together in another country! A bit black and white and heartless, but it's the government view.

    At this point I would like to remind everyone that I'm just a bod who brought family to the UK, I'm in no way an expert. My method of doing it, which worked for us because we were all in Thailand as a family, was to go through all of the (UKBA rules at that time) published requirements and make sure that I met every one that related to us.

    Our application was not very common because our niece lived with us and I applied for her as a de facto adoption at the same time as we applied for the wife's settlement visa. The Thai staff at the embassy phoned both the wife and natural mother and I felt that a common sense approach was taken. The natural mother was asked if she would miss her daughter and if she would like to see her again (a no-no under the rules). She said that of course she would miss her and what mother doesn't want to see more of their daughter. This seems to have been taken as normal chit chat rather than an aim. The natural mother, although sad at not having her daughter with her, knows that she could not take care of her in her earlier years and really wants her daughter to stay with us and have a good life. Which brings me on to a point which may be contentious. Does the grandfather have a hidden agenda? It won't be the first time a Thai family member tripped someone up, whether deliberately or just by a cock-up.

  12. #12
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    Quote Originally Posted by steady View Post
    Not too sure about ticking human rights. The UK government have already gone to court and stated that by refusing someone to come to the UK to live with their family does not breach human rights. The family can live together in another country! A bit black and white and heartless, but it's the government view.
    Hmmmm.......as it is virtually impossible for a foreigner to gain permanent residence in Thailand, very difficult to work, can't own property, etc. etc. I think that point could be argued. Almost all ex pats in Thailand are only there whilst their visa is valid and none of those visas could be classed as permanent. The Thai government could change the visa rules at any time.

    Chris, your wife does not have to prove sole custody, she has to prove sole responsibility - that she has remained responsible for making decisions about her daughter even though she lives apart from her.

    Given your stepdaughter's age and the previous comments regarding how long it could take to appeal, I would recommend you see an immigration lawyer ASAP.

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    Flip

    Definitely no agenda from the Grandfather – I know that he is unused to answering questions like this and I'm sure that the interview was conducted as a statement = confirmation:

    "Do you think the Child will miss you?" "Yes" etc. He is absolutely determined for her to leave and live with us.


    Steady

    I've been speaking to someone who runs a visa company (not the appeal side) and apparently there is no right to appeal on cases by default – only this Family aspect that I'm applying for now – Child Settlement. So, as most of the appeals are based around Human Rights / EEA those are the two options. You have to choose one as below:


    Appeal against a decision of an Entry Clearance Officer (ECO)

    Type of Decision:
    Human Rights (HU) [TICK BOX]
    EEA (EA) [TICK BOX]


    d. Grounds of your appeal
    • You may appeal only if you have made a human rights claim and this has been refused, if your appeal is against the deprivation of citizenship or if you have made an application as an EEA national or the family member of an EEA national and this has been refused.
    • You must bring your appeal on the ground that the decision against which you seek to appeal is unlawful under section 6 of the Human Right Act 1998 or that the decision breaches your rights under the European Union treaties in respect of entry to or residence in the United Kingdom.
    • If the decision against which you seek to appeal has stated that specific articles of the European Convention on Human Rights (ECHR) do not apply to your case, and you disagree, please explain why.
    • Attach any/evidence/additional sheets of paper if necessary.
    • If your appeal relates in whole or in part to a Human Rights decision, complete box 1.
    • If your appeal relates in whole or in part to an EEA Decision, complete box 2.


    Well, its definitely not EEA – and it's not Human Rights. However, a lot of the forms have been drawn up that make no sense at all (sections in an application that you cannot logically fill in) and I'm thinking that because the change has made appeal not allowed it's not in there as a choice – "I disagree with the decision because its unfair" because that option is not available – HOWEVER you can challenge a ruling when its based on a Family Visa. But to save time / money / frivolous appeals – the "I disagree with the ECO" option has been removed.

    So I'm going to tick Human Rights and then explain why I'm appealing.

    - - - - - - - u p d a t e d - - - - - - -

    Also I've spoken to a lawyer and the response was that it's a decent shout – no actual errors (as in laws or rules broken) that can be challenged. Only a good argument that could swing your way – if you get a sympathetic judge.

    £2000 for the appeal
    £650 for the Barrister (at least)
    £150 for the appeal

    That's £3000 I cannot find by next Wednesday (when the 28 day period ends). So I'm going to have to do it myself. A friend has said she will try to help me and this is what I'm going to do:

    1) Collect as much evidence as possible (such as statements from the school)
    2) Go to an appeal and sit and watch the process
    3) Read through cases that may be similar to mine that have been overturned (a Grandmother dying or some such)


    I may be incorrect, but I'm assuming that the case will be dealt as when the visa was refused – not when the appeal is held – the child will be as a 15 year old.

    The lawyer told me that at present the waiting time is 6-9 months (this may not be correct – its just what he said)



    The error was mine in the OP – about joint custody – I meant to say sole responsibility.

  14. #14
    Member สมาชิก Timbo's Avatar
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    Quote Originally Posted by Chris4Cat View Post
    The lawyer told me that at present the waiting time is 6-9 months (this may not be correct – its just what he said) .
    That would indeed be the time frame for the FTTIAC set date of your hearing. I don't mean to paint a black picture but you may have to factor in a last minute adjournment (HPU can't find their papers or similar)... go to the back of the queue, + 9 more months for new date. Then when you win; the Home Office Special Appeals Team might decide to counter appeal +5 days, then +4 months for FTTIAC to decide whether or not to allow said appeal.... This is a far as we got. Thankfully HO and Embassy in Bangkok were super-efficient after all that and we didn't have to wait long to go and collect the visa. This was our experience, plus the initial 28 days makes just over 2 years - actually there was another couple of weeks thrown in at some point, I can't remember. OH! there's also the possibility of an Upper Tribunal hearing to add to the delays. Now it could be that they employed some more Immigration Judges since then or their case load is lighter because less bad decisions are being made???? You might sail through - it's pot luck. For us it was the judicial system with slow turning cogs that cost all the time. Not that I'm complaining about FTTIAC, they do their job to the letter, just slowly. Neither am I not complaining about the HO, who know and appear to play the system professionally. I conclude the real fault in the system is the current political climate on immigration - my views on which are for another thread.

  15. #15
    Forum Regular สมาชิกประจำ Big AL's Avatar
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    I would be wary of attacking the ECO in any appeal or re-submission, especially in respect of telephone conversations in Thai to which you were not party.

    If someone is asked whether his home is two storeys, that is a very simple question, to which the person asked should be able to give a straight answer. If questions like that are not answered honestly, it calls into doubt the honesty and reliability of the person answering. Someone might think that the person is just saying whatever he thinks is best.

    I am having some difficulty following the reasoning and I agree that you might need representation.

    What is the general approach of the Home Office to teenagers coming to the UK, in these circumstances, if they cannot speak and read and write English, given that education will be a problem for the teenager and for their school?

  16. #16
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    Just a comment and not unique to Bangkok.
    There is at present on one British employee at the embassy that is proficient in the Thai language.
    They entirely depend on Thai nationals that are employed for interpretation.
    I remember so many years ago a question was asked through one of these people and my wife commented about how much the actual question had changed by the time it was heard by the other person on the phone. I attended a function in Bangkok last year that was predominately Thai interpreters employed by the many embassy's.
    My wife and I left in disgust at the way they talked about other Thai ladies applying for visas.

    The embassy will apply the rules and you may get a sympathetic hearing but by on large its black and white. I have a huge chip on my shoulder with these Thai employees who manipulate their position.
    For the record, all calls are recorded now. Try and get a copy though. No chance!

    Good luck with your appeal.
    Judging others before you have met isn't a wise option.

  17. #17
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    Big Al

    Thanks for the input. I am certainly not going to attack the ECO or try to make them look unprofessional or lying – as I think this might get their back up and for them to dig their heels in.


    I am also of the opinion that nobody is lying or that the interview is false or evidence was gained by deliberate manipulation, I am saying that in my belief the child and grandfather – nervous and unused to explaining things over the phone might have needed a little encouragement – things were suggested to encourage them to speak and they just said yes.

    Or it may be that the grandfather deliberately hid facts about the child's behaviour or relationship in order to make that child seem a "nicer, better kid" that the UK Home Office would love to have in their country. Or a combination of the two.

    I'm not going to go on an all out assault blaming the ECO for a cover-up or anything, just list what was said and then refute them with evidence.

    For instance

    "The Grandfather stated that he attends Parent / Teacher evenings and signs off end-of-term reports"

    • ECO Point: This shows that the Grandfather has had some input into the Child's education.

    The fact: The grandfather has never been to the school and does not sign any reports (I think that he doesn't even know what a parent / teacher evening is and just answered yes to the question.)

    Evidence: I will submit a signed letter from the school that the Grandfather has not attended the school and they are posting out to me unsigned school reports that the Child had to return – and a statement / record of the Child's missed attendance since the Grandmother died in 2014.

    I packed a lot of evidence into the initial application, and most of the 'doubts' are gleaned from the conversation from both the Child and the Grandfather. And most of them can be argued against by supplying evidence at the appeal.

    The 2-storey house part was just to explain why it got me thinking about the possibility that the Grandfather, confused and nervous may have just confirmed the questions without proper thought. If they lived in a 2-storey house it would have sounded true and factual. They don't so it made me wonder why such a simple fact got mixed up between the Grandfather, the interviewer and the English translation. The ECO is only basing their opinion on the evidence presented. I hope to provide counter-evidence that will change their decision.

    I can't afford representation – so I'm going to have to do it myself. Unfortunately.

    Not sure about the Education aspect or if school have a system in place – for instance Polish kids or others etc. Cross that bridge if its required.

    It's a last chance to get her over here - I'm going to try my best.

    - - - - - - - u p d a t e d - - - - - - -

    Timbo

    Thanks for the heads up – I'll hope it sails through (it may even get overturned before going to appeal – you never know !!!)

    I can't let this defeat me though and you're right not to get angry – I have to write a nice letter with a strong narrative with evidence that can hopefully sway it my way.


    "I conclude the real fault in the system is the current political climate on immigration - my views on which are for another thread."

    – I agree with this.

  18. #18
    Member สมาชิก Timbo's Avatar
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    Quote Originally Posted by ian1208 View Post
    For the record, all calls are recorded now. Try and get a copy though. No chance!
    We were sent a written transcript (of sorts) a few days before the hearing. Chris, you're a brave man going it alone. I wish you all the best. I'm not confident I can help with the finer points or arguments in your case but if you need any pointers on what happens next during the process, I'm more than happy to provide whatever information I can to help you.
    Last edited by Timbo; 4th Mar 2016 at 14:38.

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    TIMBO

    I shall give it my best shot and try to put all my points across. Thanks for the help so far. Did you request the transcript or did they send it to you automatically?

  20. #20
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    The Home Office Presenting Unit (HPU) should provide all the evidence documents they intend to rely on before the hearing via the FTTIAC - you can't contact them directly. Likewise you will have to send evidence you collect to FTTIAC as well as your skeleton arguments. There's plenty of time to do this before the hearing. There's the chance that they will back down once they look at your "bundle" and you'll win without saying a word but in all seriousness I doubt they even look at it until a few days before court anyway. Don't expect the HPO to play fair, the transcript will probability arrive too late for you to go away and obtain any fresh evidence to go against whatever they might have. Although it's possible you'll find a nasty surprise in what Grandpa said (or the way it was interpreted). It's doubtful they will stray far from the issues already outlined in your rejection letter though, I can't see the ECO keeping anything back just to surprise you with if/when you appeal.... Just the details. TOP TIP: find a reliable translation outfit in Thailand who will translate quickly whatever you scan and email to them and they can email back. The court only need to be sent copies and the originals can come back by post later at a fraction of the cost getting things done fast in the UK. If you can, send all your paperwork in one or two goes there's too much opportunity for things to get lost if you trickle it through.

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