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UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience:  I am a qualified solicitor and an expert in UK law.
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My partner applied for an unmarried partner visa ~18 months

Resolved Question:

My partner applied for an unmarried partner visa ~18 months ago, which was refused because he didn't quite meet the income threshold. He appealed and at a first-tier tribunal in January this year the appeal was upheld on Article 8 grounds (by this time he did meet the threshold anyway). We didn't find out until a couple of weeks ago that the Home Office had appealed the judge's decision because they didn't think it would be unreasonable for me to move to the US, where he's from; the upper tribunal is now scheduled for June 18. We've requested an adjournment twice, once on the basis that we weren't given all the information until recently - the first we heard about this tribunal was when we got a letter confirming the date; we've had to chase up all the other paperwork - and once because my father died just over a week ago; both these requests were refused because the tribunal service says we don't need any extra time to prepare because the hearing will be dealing exclusively with evidence already presented in the first tier tribunal.

Based on all that, then, I have a couple of questions:
1. What can we expect from an upper tier tribunal hearing? What do we have to do to maximise our chances of winning?
2. Is it too late to withdraw my partner's application altogether and reapply, bearing in mind his circumstances have changed a bit since the initial application and he now comfortably meets the income threshold?
3. Isn't the tribunal's refusal to adjourn a violation of my right to a family life? My dad died quite suddenly; I should be home with my mother and sister right now, not stressing about how to keep my partner in the country.
Submitted: 2 years ago.
Category: Law
Expert:  UK_Lawyer replied 2 years ago.
Hi, thank you for your question, I will be happy to help you today.

1. I think it is important to firstly take a look at the reason why the actual appeal to have a Hearing at the Upper Tier Tribunal was allowed. The judge who made the decision for the Home Office's appeal to be Heard at the Upper Tier Tribunal usually state the reasons they feel that the Home Office has a chance.

I believe, that you should look at these reasons and then decide what you would say to refute these arguments. If you can do that then your chances of being successful are good.

At the Upper Tier Tribunal the judge will review all the information provided at the First Tier Tribunal again and then make a decision. However, in most cases the Judges usually do not overturn the decision of the First Tier Tribunal unless there is a 'material error of law'.

2. No i do not believe that you should reapply just yet, you can always do this if the judge overturns the decision, as of now you should just go to Hearing and wait for a decision. You can of course take evidence of your partner now being able to meet the income threshold to show to the judge. But as mentioned above there is a good chance that the judge does not overturn the original decision.

3. I am sorry to hear about your loss, but I agree with you that the Tribunal should be more compassionate and should have adjourned the case to allow you to compose yourself prior to the Hearing. You can keep trying to get the Hearing adjourned , but if the Tribunal has refused you already on two occasions then I believe that you have no choice but to attend.

I do agree with the points you have made regarding the adjournment but I do not agree that you should just withdraw and reapply, I believe that there is a good chance that the judge will not overturn the original decision and issue your partner with the visa.

In the worst case scenario you loose the appeal and then you can just reapply. At least this way you have not just given up and reapplied without actually knowing the outcome of the judge's decision.

I hope this answers your question if however you feel that the answer does not cover all the points raised in your question please do not hesitate to ask further questions until you are satisfied with my answer.

Kind regard
UK_Lawyer, Solicitor
Category: Law
Satisfied Customers: 2452
Experience: I am a qualified solicitor and an expert in UK law.
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