Help!! overstayed Fiance visa, now awaiting spousal visa

I really feel for you.  I can imagine having two kids together would make this seem absurd! 

For an appeal, you'll need to prove that you provided all the proper evidence at the time of the application and that the case worker made an incorrect decision with the evidence provided.

And they take a looooooong time....  it's not unheard of for an appeal to take a year.

Another option is reapplying with the proper evidence.  Unfortunately you will have to spend the money to reappy but you are likely to be together again much quicker.  I would personally recommended clearing your NHS debt prior to reapplying, but that's your decision of course.

Best of luck, do let us know how you get on.

Another option is reapplying with the proper evidence.  Unfortunately you will have to spend the money to reappy but you are likely to be together again much quicker.  I would personally recommended clearing your NHS debt prior to reapplying, but that's your decision of course.

Someone on another forum said his wife got refused a spouse visa because of NHS debt. Like you Sabina, she gave birth on the NHS when she wasn't allowed free NHS. Once they paid her NHS bill in full, she applied again and was granted a spouse visa.

The quickest way to get your NHS bill will be to get your husband to contanct the local Primary Care Trust for the hospital you gave birth in and ask the PCT to make up your bill. He can find his PCT details here:- http://www.pctdirectory.com/

      

So do you have the actual letter in hand?  It's best if you can type out exactly what the reason for the refusal is.

 letter below.      ECO reason for refusal:

 You have failed to submit a completed Appendix 2 which provides further details of your relationship with your sponsor. I am aware that you married your sponsor on 24/09/2011 as you provided your marriage certificate. However, the marriage certificate alone is not sufficient in order to establish that your relationship with your sponsor is genuine and subsisting. You have remained in the UK since entering your marriage visa in 31/07/2011 until you departed the UK on 19/11/2012. However, the leave to remain that was issued that was issued clearly states that it was only valid until 20/08/2011. You were required to extend this leave appropriately at the time and have stayed in the UK over 12 months past the expiry date of your last visa. Therefore it is reasonable to expect you to have and be able to provide more extensive evidence of your relationship with your sponsor. I therefore am not satisfied your relationship is genuine and subsisting or that you intend to live together permanently in the UK. I therefore refuse your application under paragraph EC-P1   etc.. of immigration rules.

Now I clearly stated we have two children. Isn't that proof of a relationship? I If I knew what exactly to send I'll send it.

Yeah, I'm guessing it's intervening devotion that was missing, you said you left the UK a while ago, but only applied for a spouse visa now

DH has itineraries to show travels multiple times to visit us. So Although we've been apart for many months, we have spent time as much time together as his holidays allow.  

Plenty of people have children with someone they're not in a relationship with, or the relationship breaks down after the children are born.  The mere existence of offspring is not enough.  Spouse visas are granted based on the applicant's relationship with a British husband or wife, and it is essential to show that that relationship is still in force at the time of application.  Do you have any evidence of contact between you and your husband?  Skype logs, e-mails, letters, phone records, anything?

Do you have any evidence of contact between you and your husband?  Skype logs, e-mails, letters, phone records, anything?

We speak almost daily. He rings me or we skype. There are emails too, just not as much. Obviously he travels here too. 

Submit phone logs, then, and Skype logs.  Also, pay off the NHS.  It doesn't matter that they didn't flag that debt this time, if it goes unpaid then that's a big potential point for refusal.  Also, you could be refused FLR down the line if they catch it later.  If it were me, I'd pay the debt then reapply.  Quicker and easier than an appeal. 

Looks like there were a couple of different reasons for refusal:

You have failed to submit a completed Appendix 2 which provides further details of your relationship with your sponsor.

Did you not submit the required Appendix 2, which gives most of the details for the visa?

It's a detailed form - 13 pages of questions, which are required for the visa to be granted, because it shows the information about your sponsor and also your evidence of meeting the financial requirements.

Here: http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/visas/vaf4a2.pdf

I am aware that you married your sponsor on 24/09/2011 as you provided your marriage certificate. However, the marriage certificate alone is not sufficient in order to establish that your relationship with your sponsor is genuine and subsisting.

As others have said, just having children together isn't enough - how do they know that you aren't separated and raising the kids alone? Or that you aren't just staying together for the kids but aren't actually in a relationship anymore?

What you need to show is evidence that you have been in regular contact since you left the UK - perhaps he has visited you in the US? Or evidence of regular contact through Skype, the phone, emails, chat etc.

You would need to include things like boarding passes from trips to see you, screenshots of your email inbox or Skype log to show that you are in contact with each other regularly and are maintaining your relationship even though you have been apart.

You have remained in the UK since entering your marriage visa in 31/07/2011 until you departed the UK on 19/11/2012. However, the leave to remain that was issued that was issued clearly states that it was only valid until 20/08/2011. You were required to extend this leave appropriately at the time and have stayed in the UK over 12 months past the expiry date of your last visa. Therefore it is reasonable to expect you to have and be able to provide more extensive evidence of your relationship with your sponsor.

I therefore am not satisfied your relationship is genuine and subsisting or that you intend to live together permanently in the UK. I therefore refuse your application under paragraph EC-P1   etc.. of immigration rules.

They've also flagged up your overstay and are saying that you need to prove that you aren't just using your husband to get a visa for the UK... since you stayed so long without a visa, it may look like you will do anything to come back to the UK (i.e. use a sham marriage to get a visa).

What they are looking out for is people who are just marrying for a visa, where the couple are not in a real relationship and are just using the marriage to move to the UK.

Therefore, you need to show lots of evidence that you are actually in love with your husband and wish to move to the UK to be with him, not just to get a visa... and simply having kids doesn't show you are in a relationship - there are plenty of couples around who have kids but are no longer in a subsisting relationship, and who may well try to use that to get a visa, when they have no intention of actually staying on a relationship with their UK sponsor once they arrive in the UK.

DH has itineraries to show travels multiple times to visit us. So Although we've been apart for many months, we have spent time as much time together as his holidays allow.

But did you include those itineraries in the visa application? If not, then how would UKBA know that he visited you as much as possible?

Evidence of visits to see each other is probably the most important thing you can show to prove a subsisting relationship while apart, and then the emails/calls/chats are secondary to that.

It's not enough for you to say (and to know) that you are in a genuine relationship, you have to provide hard evidence to prove it to UKBA.

My advice would be to:

1) pay off your NHS debt,

2) collect together as much documentation as you can to show your relationship - your husband's boarding passes and itineraries when he visited, your email inbox/Skype log screen shots, any phone bills, cards or letters you've sent each other etc.,

3) re-apply for the visa with all your updated and extra documents.

Did you not submit the required Appendix 2, which gives most of the details for the visa?

It's a detailed form - 13 pages of questions, which are required for the visa to be granted, because it shows the information about your sponsor.

Well I have never felt so utterly foolish in my life. I checked all the masses of paperwork I had twice before I sent it out I couldn't really understand why I was denied, until I read your reply and the refusal letter again. I clicked on the link and realized appendix 2 form was indeed missing. I've kicked myself so many times. I'm not even sure how I missed it. All the time money and not to mention emotional toll it has all taken. What I don't understand is why they didn't take 30 seconds to send an email saying this form was missing from the application, give me 3-4 days to send it or otherwise be denied. When I applied for my fiance visa there was a single paper missing from app, turned out it was with the copies I made. The person dealing with my app rang me to let me know to send it right away and not to worry everything was fine. He said sometimes people just don't realize.  I was so appreciative. What a difference That would have made.

Anyway It's done and over and I can't change it. My husband has contacted the local MP to see if there's anything that can be done or even speed up the appeals  process due to the extenuating circumstances. If not.. we are just going to pay NHS and re-apply. I hope being denied once will not affect re-applying.

 I'm still kicking myself. I hope some positive news is in our near future.   I appreciate all the feedback positive and negative.

My husband has contacted the local MP to see if there's anything that can be done or even speed up the appeals  process due to the extenuating circumstances. If not.. we are just going to pay NHS and re-apply. I hope being denied once will not affect re-applying.

But what extenuating circumstances will you be claiming?

Is your husband on his death bed with only a few weeks to live and you want to spend his last moments together? Is your life in danger if you stay in the US for any longer than absolutely necessary and you must flee to the UK to be safe from harm?

Those are pretty much the only extenuating circumstances they will consider.

Simply not wanting to be apart from your husband for any longer is not a good enough excuse... there are couples here on UK-Y who have been forced to spend many months, even years, apart because of the visa application and appeals process... and your case is not really any different from theirs, you're actually probably less likely to be given leniency because you have an overstay, current NHS debt and now a visa refusal on your immigration record... which won't stop you getting a visa, but UKBA are unlikely to be sympathetic to your case.

- If you appeal the decision, you could be facing up to a year apart while the appeal is processed (and even then it may not be successful because usually you have to show that you provided all the required evidence and forms, but the ECO made a mistake in refusing you... but in your case, the refusal was the correct decision because you didn't include all the required documents).

- If you simply pay off your NHS debt and reapply, you could be living together in the UK in the next few weeks or a couple of months.

ETA: The only affect reapplying will have is delaying the visa processing time a little, but since you already have an overstay, your application was always going to be delayed for further processing anyway.

Well I have never felt so utterly foolish in my life. I checked all the masses of paperwork I had twice before I sent it out I couldn't really understand why I was denied, until I read your reply and the refusal letter again. I clicked on the link and realized appendix 2 form was indeed missing. I've kicked myself so many times. I'm not even sure how I missed it. All the time money and not to mention emotional toll it has all taken. What I don't understand is why they didn't take 30 seconds to send an email saying this form was missing from the application, give me 3-4 days to send it or otherwise be denied.

It's your responsibility to make sure you've filled out the application correctly and included all the required documents.  The IO has the discretion to ask for additional info. 

When I applied for my fiance visa there was a single paper missing from app, turned out it was with the copies I made. The person dealing with my app rang me to let me know to send it right away and not to worry everything was fine. He said sometimes people just don't realize.  I was so appreciative. What a difference That would have made.

You can't compare 1 missing item with an entire section of the application.

But what extenuating circumstances will you be claiming?

I used the wrong term. What I meant and should have said was compassionate grounds (not being together as a family unit, our 3 year old missing school and financial hardship (dad having to maintain both ends) It might have been a stretch but it was worth a try. We have since re-thought the whole thing.

If you simply pay off your NHS debt and reapply, you could be living together in the UK in the next few weeks or a couple of months.

Well we have decided your advice is probably the best course of action. Although expensive the expense is minimal compared to all the time lost and the expense of staying here. As long as there are no problems with re-applying. I don't think we could handle a very long wait only to be refused.

It's your responsibility to make sure you've filled out the application correctly and included all the required documents.  The IO has the discretion to ask for additional info.

Anonymiss I was not faulting anyone but myself. I realize it is my responsibility to be prepared and have all my documents. I was simply making a point. I'm sorry it came across differently. It's been very difficult time. Surely you can understand.

You can't compare 1 missing item with an entire section of the application.

I agree completely. My point is still the same though. Thanks for the humble pie.......

So in a few days time I will start round two hopefully with no glitches and foolish mistakes. I'm nervous already and i haven't even begun.

I used the wrong term. What I meant and should have said was compassionate grounds (not being together as a family unit, our 3 year old missing school and financial hardship (dad having to maintain both ends) It might have been a stretch but it was worth a try. We have since re-thought the whole thing.

Again, that's probably not a good enough excuse... as the 'extenuating circumstances' I mentioned were basically the only situations in which 'compassionate grounds' can be used.

'Compassionate grounds' is usually for extreme circumstances... like for refugees or asylum seekers from a country at war, or if a UK family member is dying, or the visa applicant needs emergency healthcare treatment in the UK because they cannot get it in their home country and will die if they can't travel to the UK. For example, we had someone here a few months ago who overstayed their UK visa because they were getting treatment for cancer... they nearly died 3 times and was forbidden by UK doctors to fly anywhere, so they could not physically leave the UK... and even then, their FLR(M) visa was still refused because they had entered the country as a visitor and had not applied for a spousal visa before travelling to the UK (http://talk.uk-yankee.com/index.php?topic=79104.0).

So, being apart from your family, and also missing school and financial hardship will most likely not be considered compassionate grounds... especially considering that if you just re-applied for your visa, you would get it faster than appealing through your MP anyway, thereby making your 'compassionate grounds' claim obsolete.

They would probably just say something like: 'you should just reapply for the visa with the correct documents' or 'why can't your children go to school in the US while you wait for the visa?' or 'if your husband is suffering financial hardship then maybe you won't meet the financial requirements for a visa after all' (since for the visa you have to prove that he can support you all without you working anyway).

Well we have decided your advice is probably the best course of action. Although expensive the expense is minimal compared to all the time lost and the expense of staying here. As long as there are no problems with re-applying. I don't think we could handle a very long wait only to be refused.

As long as you make sure you include all the forms and documents this time, and pay off your NHS debt first, the process should go smoothly. There will likely be a delay to the processing because they will have to look into the overstay again and the visa refusal, but they shouldn't be grounds for refusal on their own. However, not including all the documents, or not paying off the NHS debt will be grounds for refusal, so you want to make sure they can't refuse you on those things.

It's your responsibility to make sure you have everything so that there are no problems... all the ECO in Sheffield can do is confirm that you meet the requirements and that you included all the documents.
 
The best thing to do is take your time with the application - don't rush it, but instead double-check that you have everything you need so that you don't make any mistakes this time... so, make sure:

- that you have filled out everything required (application and Appendix 2)
- that all your latest documents are dated no more than 28 days before the online application date (i.e. sponsor letter from your husband, letter from his employer, latest bank statements and payslips, accommodation documentation),
- that all your documents are original,
- that you include enough 'intervening devotion' evidence
- that you still meet the financial requirements for the visa (for a couple with two UK citizen children, you need to show that your husband earns at least £18,600 per year and has done so for at least 6 months)
- that you include your passport(s), marriage certificate and passport photos

In short: if you meet the requirements and include all the documents, the visa should be granted. But if you either don't meet the requirements, or don't include all the documentation to prove that you meet the requirements, the visa will be refused.

In your first attempt, you presumably met all the requirements, but unfortunately did not include all the required evidence... so all you have to do is re-apply and make sure all the missing evidence is included this time.

An appeal would really only be successful if you did include all the documents, but the ECO in Sheffield overlooked or ignored them and refused the visa, claiming that you didn't include the documents at all.

I just wanted to give an update on my situation.

Firstly I would like to thank everyone that responded with advice, information and just encouraging words. It helped tremendously. Geeta, historyenne, kfdancer and all the rest I haven't mentioned.  I took all advice. I can't tell you how much it helped. I received an email with a decision made within three days, Remarkable !!! Spousal visa arrived via fedex everything done in a week!

As it turned out I opted to reapply for spousal visa after being denied first, rather than appeal decision. Although it was costly, I realised it would take considerably longer and more money to appeal.  I submitted all the documents and then some. I included a letter from our local mp, as well as a letter from hospital stating we had contacted them to make NHS payment. I would like to mention the hospital (Leighton Hospital Crewe, Cheshire) was phenomenal! What a huge help they were as well as kind and considerate. They refused to bill us and let  border control know their reasons for refusing billing. Therefore border control did not use that as a refusal point. I would imagine we were just fortunate. We have opted to donate to Hospital. However, I would not encourage anyone to use NHS without permission.

I've been in the UK now since Nov. and adjusting once again. It's been a long bumpy road, but my husband and I got through it.

Fantastic news Sabina!! I've been wondering what was going on with you.

Enjoy life in the UK!

Thank you KFdancer!