# Spouse Settlement Visa Refused - Question about Appeal



## fufu24 (Mar 13, 2013)

Hi everyone,

My spouse settlement visa was recently refused by the UKBA in New York and I'm looking to submit an appeal, however am not sure whether it's better to submit to the visa section that made the decision (NY) or to the First-tier tribunal in the UK?

From what I understand the NY office could potentially overturn the decision in 2-3 months whereas it takes about 6 months to get a court date in the UK - is this correct?

Given that my application was refused twice, my worry is that appealing to NY will not result in them overturning the decision and we will have wasted 2-3 months waiting. 

Is it better to perhaps send the appeal directly to the UK tribunal and wait for a court date in front of a judge (who might be more fair)? I have also heard from a UK immigration lawyer that the UK courts tend to be fairer in their assessment than UKBA officers.. does anyone have experience with this?

Any help or feedback would be greatly appreciated!


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## fufu24 (Mar 13, 2013)

Does anyone have advice to offer regarding the above?


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## mehemlynn (Nov 16, 2011)

Most of us have not had to deal with appeals. I would say with previous refusals and needing to appeal, I would contact a lawyer. This is more complex than most of the knowledge base here.

I don't know if anyone would have more helpful advice.


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## cc9 (Oct 29, 2012)

All appeals are sent to the first tier tribunal in the UK, who then send it for ECM review to the visa office where the initial decision was made. The ECM can over turn the initial decision if however they decide to uphold the initial decision it is at this point it goes back to the tribunal for a judge to make a decision either by an oral hearing or purely on the papers provided, depending on which you choose.
The appeal process is a long one and I have heard it can take anywhere up to a year for a decision.
Hope this is helpful


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## Joppa (Sep 7, 2009)

fufu24 said:


> Hi everyone,
> 
> My spouse settlement visa was recently refused by the UKBA in New York and I'm looking to submit an appeal, however am not sure whether it's better to submit to the visa section that made the decision (NY) or to the First-tier tribunal in the UK?
> 
> ...


You have no choice. Appeal must be directed to the First-tier tribunal.

"You appeal will be accepted when the First-tier Tribunal (Immigration and Asylum Chamber) (FTTIAC) receives your payment. The FTTIAC will then notify the visa office that refused your application, by sending them a notice of receipt.

An entry clearance manager (ECM) at the visa office will review our decision to refuse your application, in light of your appeal form and any supporting documents that you have sent. If the ECM is satisfied that your application meets the Immigration Rules, they may overturn our original decision and issue you with a visa or entry clearance.

If the ECM does not overturn the decision, an entry clearance officer (ECO) will write a statement explaining why the ECM has upheld the decision to refuse your application. We will send this and all your papers (known as 'the appeal bundle') to the FTTIAC. We will prepare and send your appeal bundle within: 20 working days for non-settlement and family visitor cases; or 90 working days for settlement cases.

These timings exclude postage times to and from the visa office.

The FTTIAC will:
list your appeal for hearing;
send copies of all the relevant papers (including the ECO's written statement) and supporting documents to us and to your representative or sponsor; and advise you of the date and time of your hearing. We have no control over when your appeal will be heard.

An immigration judge will hear your appeal in the UK. When considering your appeal, the judge will look at all the evidence provided by your representative and by the ECO. He or she will determine your appeal on the individual details of your case in line with the Immigration Rules.

The judge will inform the FTTIAC of his or her decision no more than 10 days after the hearing. The FTTIAC will then send that decision (known as a 'determination') to everyone involved."

UK Border Agency | Appeals - visas and entry clearance


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## fufu24 (Mar 13, 2013)

Sorry I posted this before reading Joppa's response!

---

Thank you for your responses!

I was confused bc the IAFT-2 form states that you can send the completed form to *either* the visa section which made the decision (in my case the UKBA office in NY), *or* the first-tier tribunal in the UK.

I assume that if you're confident the original decision would get overturned you would send the forms to the UKBA office and hope it doesn't go to court in the UK.

Whereas if you feel the UKBA office is a waste of time you would send directly to the courts and then wait the 6 months (instead of waiting 3 months + 6 months).

Can one of the moderators or expert posters correct me if I'm wrong on this?

Thanks again for your advice, this forum has been a great source of support and information!


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## fufu24 (Mar 13, 2013)

Thank you Joppa for posting that


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## Harun (Jan 27, 2013)

reason why you have been refused twice?


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## fufu24 (Mar 13, 2013)

Harun said:


> reason why you have been refused twice?


I won't type it all again as it's in my first ever post  http://www.expatforum.com/expats/br...288-refused-twice-spouse-settlement-visa.html


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## Joppa (Sep 7, 2009)

You can send to either, but your appeal always ends up at First-tier tribunal in UK. UKBA in NY only acts as a staging post, and won't do a review without being directed by FTT. So your assumption is wrong. By sending to NY, you will delay your appeal while it's being forwarded to FTT.


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## fufu24 (Mar 13, 2013)

Joppa said:


> You can send to either, but your appeal always ends up at First-tier tribunal in UK. UKBA in NY only acts as a staging post, and won't do a review without being directed by FTT. So your assumption is wrong. By sending to NY, you will delay your appeal while it's being forwarded to FTT.


I talked to another lawyer who also said the same as you. Unfortunately she charges £3825 + vat for her appeal services !!!

Can you shed some light regarding the oral versus paper appeal? In what case is it best to do oral?


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## Joppa (Sep 7, 2009)

Only when you or someone else (like your partner?) in UK can actually attend a hearing, which will be in UK. When you pay those hefty fees to an advisor, it normally includes a lawyer attending a hearing and making a personal representation.


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## fufu24 (Mar 13, 2013)

Joppa said:


> Only when you or someone else (like your partner?) in UK can actually attend a hearing, which will be in UK. When you pay those hefty fees to an advisor, it normally includes attending a hearing and making a personal representation.


So in your opinion is it better to opt for the oral appeal? Is there any difference in the timeline?


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## Joppa (Sep 7, 2009)

If your partner can attend, it may help though they may not want to. While the judge will try to be helpful, it's a formal setting and non-professional may find it too intimidating, as UKBA will be represented by their solicitor. A personal hearing may take a little longer to arrange than purely paper-based consideration.


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## fufu24 (Mar 13, 2013)

Joppa said:


> If your partner can attend, it may help though they may not want to. While the judge will try to be helpful, it's a formal setting and non-professional may find it too intimidating, as UKBA will be represented by their solicitor. A personal hearing may take a little longer to arrange than purely paper-based consideration.


My husband (sponsor) can definitely attend, along with the current lawyer we have. I think it might be better to get an in person hearing because our situation is a bit complicated.

Thanks for all your help


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