Man Refused Standard Visitor Visa Seeks Legal Help
The Law Of... applying for a visa
An Indian national, who left the UK voluntarily in 2009, became embroiled in a sticky immigration case earlier in the year (2016), when he was required to attend care proceedings for his daughter in the UK.
Emma Brooksbank, Simpson Millar's Head of Immigration in Leeds, accepted the case and here explains the story behind it, along with the action she took.
Return to the UK
As with many immigration disputes
there was more to it than just a simple visa rejection. Central to this case was the client's 7 year old daughter, who was the subject of care proceedings being handled by Simpson Millar's Family Law Department
. Although the father was able to attend via a telephone link, the Judge overseeing proceedings ordered that he attend subsequent hearings in person, meaning he would have to return to the UK. This is where the problem arose.
To understand the issue we must go back to 2005, when the client first arrived in the UK on a student visa. He stayed past the expiry date, initially renewing the visa but eventually allowing it to run out, remaining in the country as an overstayer.
Overstayer and Discretionary Leave to Remain
An overstayer is somebody who, having been granted a visa to remain in the UK, does not leave on or before the specified date and does not request an extension. Remaining in the UK beyond the date of your visa means your status here becomes illegal.
Reasons for overstaying a visa may be varied, from the belief that a life will be endangered by returning to a country of origin, through to establishing a family or private life within the UK.
It is possible to make an application for Discretionary Leave to Remain, usually under Article 8 of the European Convention on human Rights, which states that 'authorities must have respect for an individual's private and family life.' Requests are made to the Home Office and dealt with on a case by case basis. If the application is successful the person will be granted 2.5 years leave to remain. Completing 10 years will qualify them to remain indefinitely.
Social Services Intervention
The client in this particular case was stopped by the police not long after his last visa extension ran out. Removal papers were issued, but rather than wait to be removed, the client bought a ticket and left of his own volition a week after his arrest.
Following his return to India, he was refused subsequent contact with his daughter (both direct and indirect) by the child's mother, who remained in the UK. And there the story may well have ended, were it not for an intervention by social services 7 years later.
Visa Applications Rejected
2016 saw the child placed into temporary fostering, her mother unable to take adequate care of her, which led to the proceedings setting in motion the client's immigration case.
With legislation tightened, and in spite of the Judge's insistence that he personally attend the hearings, the client's initial 2 applications for a visitor visa were turned down by the British Embassy in India, resulting in his approach to Simpson Millar's Immigration Department
and the agreement of Emma Brooksbank to prepare a new application along with representations of support.
The Embassy refused the previous visa applications on the grounds that it didn't believe the client to be a genuine visitor. This stemmed from his former time in the UK, when he became an overstayer. A lack of previous contact with his daughter was also considered when the Embassy reached its decision.
The Standard Visitor Visa
Unless you are from an EU/EEA member state or certain countries such as America or Australia, you will require a visa to visit the UK.
The Standard Visitor Visa is available for leisure, business-related and other trips and gives the holder the right to remain in the UK for up to 6 months. If you are a granted a visa of this type and come to the UK, you are not allowed to:
- Partake of paid or unpaid work
- Receive public funds
- Marry or register a civil partnership
- Study for more than 30 days (this must not be the main reason for your visit)
- Effectively live in the UK through repeated short term visits
To be eligible for a Standard Visitor Visa you must be able to demonstrate that you can support yourself and any dependents for the duration of the visit, will leave the UK at the end of it, and have the means by which to return to your own country or travel on to a subsequent destination.
Presentation of the Facts
Making the application on his behalf, Simpson Millar asserted that the client was genuinely seeking entry as a visitor to attend the family hearings as instructed by the Judge.
This was reinforced by a presentation of the facts, which included:
- He was a self-employed business owner in India, with a directorship in at least one other company
- He had the means to travel, had booked his hotel accommodation and possessed the funds to support himself for the duration of the visit
- He had no intention of working or selling any goods or services while in the UK, nor claim from the public purse
- His intention was to remain in the UK for no more than 2 weeks
- He had a pregnant wife and 2 children awaiting his return to India
Furthermore, by refusing him entry clearance, the Embassy was going against the Family Court's ruling, which, in turn, breached the client's right to a fair trial, as provisioned in Article 6 of the European Convention on Human Rights.
A Successful Application
As the client intended to take part in the proceedings and maintain contact with his daughter, he would need to return so that he could visit his child in the UK.
Thanks to the representations made by Simpson Millar's Emma Brooksbank, the Embassy was convinced of the client's genuine need to visit the UK and issued the visitor visa. With the application successful, he was able to attend the hearings as requested by the Judge.
Emma comments:"As this case has proven, it pays not to take a visa rejection, or a similar immigration issue, at face value. With the right advice and the correct representation, decisions can often be challenged and overturned on a number of grounds.""What counts is ensuring you have somebody look at your case who is experienced in handling these matters and able to use this knowhow to offer you an effective solution."
If you are having trouble securing a visitor visa or there is another immigration issue giving you cause for concern, contact our Immigration team
for professional, independent and expert advice.