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Author Topic: need help about appeal for "applied for leave to remain"  (Read 1250 times)
sunnyweather
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« on: November 21, 2010, 05:54:24 PM »

Dear all
my applied for leave to remain got refused at 17 Nov. I attached refusal letter below. as they said they also notied we have a strong based of love. we also have good finacial based for life so i never need take any public fund. his Decress nisi got at 2008, they separated over 4years, so their marriage relationship already has lifted in law. solicitor wrote 2letters to informed as we just waiting for his ex-wife to respond to finacial issue argreement. this case under proceeding but not dare to give out a fixed date as we need be honest n along the legla procedure. but sounds the home office's offical just want hear about lie indeed.
they said they conside to European Convention of Human Rights. if they really consided to Human rights then they should conside about our relationship is true n we along immigration rule to application stay together as we are expecting the Decree Absouted for purpose to marry again. they also should consider as the relationship is real n consided we both before we decided to go together, then we should just planed everything as we will be together forever so gave up everything in my home town already. even i  didn't work for a long time as this fiance visa not allowed me work here.  so how can I go back so easy as they think. it's unfair.
 
so hope anyone give some advice about appeal.  esepcial expecting some advice along the immigration rule n human rights.
Thanks a lot.

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Dear Miss ***
On 18 september 2010 you applied for leave to remain in the United Kingdom as the fiancée of Mr. ***. An official has considered your application on behalf of the Secretary of State.

It is noted that letter dated 23 October 2010 and 22 October 2010 respectively have been provided from your fiancé and his solicitor, both of which indicate that no date can be given as to when a Decree Absolute will be issued with regard to your fiance’s divorce.

Therefore, you do not satisfy  the requirements of the Immigration Rules for this category under Paragraph 295 with reference to 293(iii) and it has been decided to refuse your application.

In making the decision to refuse your application, we note that your immigration history is as follow:
You entered the UK on 27 April 2010 on a marriage visa valid from 22 March 2010 to 22 September 2010.
A valid application for leave to remain as a fiancée was submitted on 18 September 2010.

Your application has also been considered with reference to Article 8 of the European Convention on Human Rights.

With regard to your right to a family life under Article 8, it is noted that you have only been living with your fiancé since your entry to the UK in April 2010. It is therefore considered that the period established here within the meaning of Article 8.

Furthermore, there would be nothing to prevent you returning to your home country whilst your fiance’s divorce proceedings are concluded and then applying for the appropriate entry clearance to the UK once those matters are settled. Any separation between yourself and your fiancé would only be temporary and any infringement of your Article 8 rights in such an instance would be justified and proportionate in the pursuit of maintaining effective immigration control.

It is also noted from your entry clearance records that you have been in a long-distance relationship with your fiancé since August 2008. It is therefore considered that whatever arrangements were made between yourself and your fiancé when conducting such a relationship can continue until such time that his divorce proceedings are finalized.

With regard to your right to a private life in the UK under Article8, it is noted that you have only been in the UK since April 2010, this is a relatively short period of time when compared with that previously spent in your home country or elsewhere and would mitigate against any claim that you have formed such a life here.

In order to protect the wider interests and rights of the public, it is vital to maintain an effective immigration control. In pursuit of that aim, and having weighed up your interests, it is considered that any interference with your private life by seeking your removal from the UK is a legitimate, necessary and proportionate response and is in accordance with the law.
We have considered whether your removal from the UK will interfere with your private or family life( should such life exist here). Although you are the fiancée of a person present and settled here, it is considered that you have not been living with that person for a significantly long enough period for a family life to have become established here within the meaning of Article 8; you have also not been in the UK long enough to have formed a private life here. Your removal to your home country would therefore be reasonable in the interests of maintaining effective immigration control.

We have considered whether interference with your private or family life is in accordance with the law. As you no longer have any legal  basis to remain here , it it considered lawful and within the permissible aim of Article 8(2) to seek your removal from the UK in order to maintain an effective immigration control.

We have considered whether interference with your private of family life is proportionate. As it has already been considered that you have no established family life in the UK within the meaning of Article 8, and that you have not been here long enough to have formed a private life, it is deemed proportionate to seek your removal to your home country.

In considering your case we have taken into account whether there has been any delay in deciding your application that may affect your right to remain here under Article 8, but we do not accept that any delay in deciding the case is significant or unreasonable.

Although it is considered that you have no established family life in the UK within the meaning of Article 8 but may have formed some degree of private life here, as you no longer have any legal basis to remain here it is considered that we are entitled to weigh such factors against you when assessing whether interference with your Article 8 rights is proportionate. Given the circumstances of your particular case we are of the opinion that requiring you to return to your home country, thereby interfering with your private and family life is a justifiable and proportionate course of action in pursuit of the legitimate aim of effective immigration control..

Your case has also been considered on an exceptional basis outside the immigration Rules. However, in view of the above considerations regarding your situation, the Secretary of State  does not consider that there are any exceptional compassionate or compelling circumstances to take into account and it therefore not prepared to exercise discretion in your favour.

If you appeal, you do not have to leave the United Kingdom while the appeal is in progress. However if your appeal is unsuccessful, and you do not leave the United Kingdom voluntarily, you will be removed to China.

CLS7
On behalf of the Secretary of State
Date: 17 November 2010

----------------------
NOTICE OF IMMIGRATION DECISION
In compliance with the Immigration(Notices) Regulations 2003 made under section 105 of the Nationality, Immigration and Asylum Act 2002

REFUSAL TO VARY LEAVE or VARIATION OF LEAVE

Paragraph 295 with reference to 293(iii) of HC 395(as amended)

Right of Appeal

You are entitled to appeal this decision under section 82(1) of the Nationality, Immigration and Asylum Act 2002, A notice of appeal is enclosed which explains what to do. Also enclosed is advice from the Legal Services Commission on how to get help.

The appeal must be made on one or more of the following grounds:
   That the decision is not in accordance with immigration rules
   That the decision is unlawful because it racially discriminates against you
   That the decision is unlawful because it is imcompatible with your rights under the European Convention on Human Rights.
   That the decision breaches rights which you have as an EEA National or member of such a person’s family under Community Treaties relating to entry to or residence in the United Kingdom.
   That the decision is otherwise not in accordance with the law
   That a discretion under the immigration rules should have been exercised differently
   That your removal from the United Kingdom as a result of the decision would:
       Breach the United Kingdom’s obligations under the 1951 Refugee Convention
       Be incompatible with your right under the European Convention on Human Rights

You should not appeal on grounds that do not apply to you. You must also give arguments and any supporting evidence, which justifies your grounds.

One-Stop Warning- Statement of additional grounds
   You must now make a formal statement about any reason why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave.
   The statement should be made on the form NOTICE OF APPEAL if you are appealing this decision. If you are not appealing but have further reasons you wish us to consider you should send them to reach us within the next 10 working days(5 working days if you are detained).
   You do not have to repeat any reason you have already give us but if you do have any more reasons you must now disclose them.
   If you later apply to stay here for a reason which you could have given us now, you may not be able to appeal if the application is refused.
   If, after you have completed the form, the reason why you think you should be allowed to stay in this country change, or new reasons arise, you must tell us as soon as possible. Do not wait until your appeal has been heard.
   If you later apply to stay here for a reason which you could have raised earlier, you may not be abl to appeal if the application is refused.
   This ongoing requirement to state your reason is made under section 120 of the Nationality, Immigration and Asylum Act2002.
« Last Edit: November 21, 2010, 07:11:41 PM by sunnyweather » Logged
historyenne
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« Reply #1 on: November 21, 2010, 06:05:41 PM »

It sounds like the only reason they refused your application is because you wouldn't be able to marry within the required time frame (6 months) due to the fact that your fiance is still married to someone else and can't guarantee that he'll be legally divorced in time for him to marry you before your leave to remain expires.  That is a perfectly valid reason, and I doubt any appeal you made would be successful.  Not to mention that appeals take a really long time and are very expensive. 

What is the hold-up with your fiance's Decree Absolute?  Can't you go back to your home country and wait until his divorce is finalised?  I know it's not what you'd like to do, but that letter basically says that they don't think you have enough of a life in the UK to justify letting you stay on human rights grounds, and that you're used to having a long distance relationship with your fiance, so it won't be traumatic for you to go home.  Harsh, but they've covered their bases. 

Isn't there a chance your fiance could push to get the Decree Absolute, then you could apply for a fiance visa from your own country in a few months time?   
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garry
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« Reply #2 on: November 22, 2010, 02:04:04 AM »

Are you going to represent yourself?
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sunnyweather
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« Reply #3 on: November 22, 2010, 11:32:34 AM »

yes, i am
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