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  1. #21
    Premium Member i_hate_theo's Avatar
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    I have spoken to another immigration solicitor that I had a brief chat with yesterday. The approach he has recommended is very different to what Vinny and the other outfit that quoted me £2.2k suggested.

    He said that we make the appeal, get the relevant English certificate, submit the appeal bundle and suggest that UKVI change their original decision based on the new evidence or, if they don't amend their decision, take it to a hearing and let a judge decide.

    As their offices are just down the road from where I work, I am going to pop in and have 20 minute chat with him tomorrow.

    Option 1 - appeal, withdraw appeal, submit new applications. More expensive, as I have submit and pay for new applications. There does appear to be more certainty though. Assuming I don't mess up the new visa applications there doesn't appear to be any obvious hurdles.

    Option 2 - Appeal and see the appeal through to its conclusion is potentially cheaper. However, if UKVI do not change their original decision, and the judge upholds the original decision, where do I stand then?

    I'm still confused and undecided as to the best route to take and I am still open to any opinions or suggestions.

    Sent from my Moto G (4) using Tapatalk

  2. #22
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    I've only had a quick read of this and no time to do any research to help you but........my thoughts are this:

    Go for option 1. I presume that 'stays' everything and your family become legal again until the appeal hearing. However, in the meantime you will make sure the correct tests are taken and new applications submitted.

    This may seem the most expensive route but I don't think it is. I don't think an appeal (Option 2)will succeed - to succeed you would have to show that the officer had erred in law and they haven't - you submitted the wrong test result. You should be able to blag your way through to submitting the appeal which will give you the 'stay' - you won't then need the services of a solicitor because the appeal won't actually be happening.

    Going to appeal will (it sounds like) almost certainly involve solicitors fees, you will lose and so have to pay those fees and submit fresh applications.

    Get the appeal started, get the stay, get the correct test.....bla bla bla but in the meantime you will also have the benefit of time - time in which you could write in asking for leniency 'do we really need to go to appeal?' Its unlikely but you may just get a change of mind and avoid paying the fees again.

    That's my 'two penneth' worth but as I say, I haven't had a lot of time to consider or read up on appeals etc.

  3. #23
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    I believe we agree on the first two steps that are the same for both options:
    Appeal for wife and child.
    Take the appropriate test(s) while appeals are pending.

    Instead of refusing, I don't know why they also didn't consider her under Human Rights and put them on the ten year path?

    One of the absurdity of the appeals system today is that it undermines the Immigration rules!

    For visitors, there is a right of appeal, but only on limited grounds, such as Human Rights grounds. This leads to an absurd situation, where

    12.
    ...it is simply not open to a Judge to allow an appeal on the grounds that the Judge is satisfied that the requirements of the Immigration Rules are met.
    Surprisingly, subsequently, for the categories where there still is a right of appeal under the Immigration rules,

    84
    Grounds of appeal

    (1)An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
    (a)that the decision is not in accordance with immigration rules;
    was removed! Leading to the same absurdity?

    If your wife satisfied the Immigration rules requirements for FLR(M) or SET(M) on the date of the decision but were incorrectly refused, then I think she should win the appeal, but on Human Rights grounds. However, they may put her on the 10-year path.

    If they lose the appeals, then I believe that they may make new applications, subject to 39E, i.e. within 14 days.

    A more satisfactory outcome may be if the judge agrees with the earlier judgment and declares the UKVI's decision not to give her an opportunity and means to correct the defect as unlawful. S/he may direct the UKVI to withdraw the refusal and reconsider? Then perhaps your wife and child may also be able to vary their applications to SET(M), subject to satisfying the requirements.

    Unfortunately, a lot of "if"s and "may"s!
    Last edited by Vinny; 13th Sep 2018 at 04:35.

  4. #24
    Premium Member Elad's Avatar
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    Go for option 1 and submit a new application as soon as possible with the new a2 certificate.
    If you went through with an appeal then i think the judge would probably just advise you to reapply anyway because any new evidence that's dated after the appeal wont be taken into account.

  5. #25
    Premium Member i_hate_theo's Avatar
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    I saw the solicitor in Holborn yesterday afternoon. I appreciated the fact he was willing to sit down with me for 20 minutes to discuss my situation and why he thought the full appeal was the best option.

    To me, he felt a little green. Even to the point that he brought a colleague into the meeting room with us who just sat there and didn't say a word. Felt like he was overseeing possibly a new or junior member of staff.

    He wasn't able to convince me that appealing the decision right up to a court appearance was the right route to take.

    At the 11th hour, my Employer has become involved. They have put me in touch with a quite high-end immigration outfit in the City of London and have very kindly agreed to pay the £350+ vat per hour to have a chat about my options over the phone with them. They have also said they may be able to assist with legal fees for my case. I had left the office before I found this out so will find out more about the offer tomorrow.

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  6. #26
    Premium Member i_hate_theo's Avatar
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    On Friday evening, I had a session with the immigration solicitors that my company have a relationship with. As their office is about 100m from me, it was a face to face meeting and not a chat over the phone. I instructed them today to assist with lodging the appeal. Its 1-2 hours work and I will be billed by the hour (I won’t state the hourly rate as I believe some of you have weak hearts!).

    He has suggested a route to follow. He believes that we need to show that EX.1 applies to my wife i.e. prove that I am the father of my child, and my wife stays as the parent of a British citizen (not sure how well I have summarised that?).

    If my wife is applying for further leave to remain and can show that EX.1. applies, and she relies on that fact, then she can be exempted from the English language requirement. The downside of this is, that by being granted leave with reliance on EX.1, she will be granted leave in a route which only leads to permanent settlement after 10 years.

    Once the appeal has been lodged, I will go about engaging with the government approved DNA testers and we will work from there.

    https://www.gov.uk/guidance/immigrat...tner-or-parent


    EX1.jpg

  7. #27

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    I'd love to know his thought processes with this one. Seriously.

    From what you have said about his fees it would probably be cheaper to just resubmit the visas. Does your wife have A2 yet?

  8. #28
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    If both your wife and daughter were refused FLR, then how will your wife be able to prove that EX.1 applies

    You say, the solicitor has suggested a route to follow. He believes that we need to show that EX.1 applies to my wife i.e. prove that I am the father of my child, and my wife stays as the parent of a British citizen (not sure how well I have summarised that?).

    If your daughter is a British Citizen, then surely there would of been no need for her to be on the FLR application, i'm confused.

  9. #29
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    Two daughters would be my guess Greg.

  10. #30
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    I don't think that your wife will be eligible to apply as a parent if E-LTRPT.2.3. fails. However, her category may be a partner with a British child.
    Last edited by Vinny; 19th Sep 2018 at 01:59.

  11. #31
    Premium Member i_hate_theo's Avatar
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    Will try and provide a better summary of where we are now and the possible routes we can take going forward.

    I have instructed an immigration solicitor to lodge the appeal to the first-tier tribunal. This is stating the grounds on which I am submitting the appeal. It has to be submitted by close of business on the 20th September. Once this has been submitted, it will give us maybe 6+ months to gather additional evidence and decide the route we are going to take. We have NOT decided the route we are taking, we have discussed the things that we can TRY. Nobody is offering me any guarantees that any of the routes will be successful.

    Once the appeal has been submitted there is no immediate concern about my family being forced to leave the country. Over the coming weeks and months (in no particular order) I will attempt the following. Look to get UKVI to return my wife and daughters passports. If possible, get my wife to sit the A2 English exam. If possible, take a DNA test to prove my paternity. Discuss with the solicitor the best way to proceed with new visa applications dependant on any new evidence that may or may not be available. Withdraw appeal and submit new visa application(s).

    To some degree, the visa application is a one shot deal. You get it right and its issued, or like me, get it wrong and its refused. You are not given a quick and easy opportunity to have a second bite of the cherry. UKVI made the correct decision on my applications based on the evidence I provided (it pains me to admit). Although it would have been nice if they applied a bit of common sense and were more flexible. What if every applicant was given the opportunity to put right mistakes in visa applications? How clogged up would the system be if everybody was given multiple attempts to get it right? This is not me supporting the way things are setup at UKVI, just me stating I understand why they are setup this way.

    I will TRY to cut a long story short regarding my daughter. My daughter (we only have one) was born in Laos in 2011. She was born out of wedlock. On the Laos birth certificate, in the field for the fathers name, it clearly states “First name and name of the father (for children born outside of wedding only mothers name must indicate)” i.e. if the child is born out of wedlock, only put the mothers name. My name does not appear on the birth certificate and it has been difficult to prove to the UK authorities that I am her father. I had a failed application for a British passport for her in 2016/17. I will be looking to have an DNA test to prove my paternity and then probably look to apply for ‘confirmation of British nationality status (NS)’ for her. This will be discussed in more detail over the coming weeks and months.

    I am still more than happy to continue to listen to people’s opinions on here and appreciate the time you take to comment. Feel free to pick holes in what I am doing, I can learn lots from the discussion. I am hearing lots of “surely you can just….” comments from friends and family. Unfortunately the reality is there isn’t an easy way to put this right.

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

    Quote Originally Posted by rasg View Post
    Does your wife have A2 yet?
    Hi rasg,

    We cannot sit the A2 exam without her passport. We will be asking for her passport to be returned after the appeal has been lodged.

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

    Quote Originally Posted by Greg / Pairin View Post
    If your daughter is a British Citizen.
    Morning Greg,

    There is quite a long thread related to me trying to prove my daughter was British a couple of years back. Loads of useful information from Vinny and others. I never managed to get it sorted before but will will make every effort to get it sorted this time round.

    http://thailand-uk.com/forums/showth...ter-is-British

  12. #32
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    Unfortunately, applying for confirmation of British nationality status (NS) is now an expensive useless application, because of the following:

    Confirmation of British nationality status
    If you wish to confirm your nationality status for work, immigration or travel purposes, you must apply to Her Majesty’s Passport Ofice for a British passport. You must only use this form if you want to confirm your status for another reason. This form cannot be used to confirm status for the purposes of issuing a passport.


    If the DNA results from an approved laboratory confirms that you are the father of your daughter, then she is automatically British by descent from birth. With the DNA evidence, just reapply for a British passport for her.

    Then, using her British passport, you may as well claim a refund of all the fees relating to her unnecessary leave to remain applications, under 4.8.

    4. Other circumstances justifying a refund

    ....
    4.8 An application for leave to remain or NTL by someone who is a British citizen or had the right of abode in the UK at the time of application. However, no refund will be considered where the applicant has been naturalised or registered as a British citizen subsequent to the application being made.

    Try also claiming back her entry clearance fees, Immigration Health Surcharge, etc., due to the HMPO's initial wrong refusal.

  13. #33
    Premium Member i_hate_theo's Avatar
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    Quote Originally Posted by Vinny View Post
    I don't think that your wife will be eligible to apply as a parent if E-LTRPT.2.3. fails. However, her category may be a partner with a British child.
    Apologies, I may have misquoted what he told me. The subtle but significant difference between the two!

  14. #34
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    strewth what a minefield these days, and to think so many migrants just arrive in various ways and claim 'asylum', or overstay or just sneak in. Good luck doing things the right way.

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