Updated on 06 / Mar / 2017:
We got married, and my wife's visa has just passed (we got it in 2 weeks)! I would now accept my own answer because this works. Hopefully this answer would help anyone with similar experiences.
How to pass the visa:
If you meet all the criteria, according to our solicitor, all you need to do is just applying for the visa properly, and they would have no reasons to refuse your visa. (Because this is under Appendix FM)
Applying properly means:
- make sure documents are up to date according to the guidelines
- be honest about the previous refusal / removal
- provide enough evidences to show your relationship is genuine. Our solicitor told us that this is the only single thing they can pick on us, so we
- 1) supplied photos of us together with family members
- 2) took screenshots of monthly web chat communication
- 3) supplied marriage certificate
It's worth using solicitor services to help getting things right. We attached a letter from our solicitor, which included a section to politely explain the previous application (solely using this opportunity to honestly explain we made mistakes because we didn't know the immigration rules. The point is not to argue about the previous case because it didn't matter). We specifically attached the content below to remind the Entry Clarence Officer that the result from the previous application should not affect our new application:
A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322
do not apply to an application for entry clearance, leave to enter or
leave to remain as a Family Member under Appendix FM
The result
My wife received a visa (lasts for 1 month) with a letter. The letter explains that after she comes over, she can collect a permit that lasts for 2 years 9 months.
(Please refer to the content below for further explanation)
19 / Aug / 2016
After some investigation, here's what I have found out based on official immigration documentation. Hope this helps anybody that has similar worries and also put dependent visa as an option for consideration.
This doesn't cover how to execute, and it's purely academic (so if you have real experience, please help contributing).
1. Dealing with "False representation":
General grounds for refusal Section provides definition and consequences of refusal reasons, e.g.
False representation
If a person lies or makes a false statement in their application,
either orally or in writing you must consider refusing entry or leave
to remain. When you have evidence that a person has done this, either
as part of their current or previous application, the Immigration
Rules state you must refuse the application unless the particular
paragraph of the rules allow you to use discretion
(Further examples about false representation are hidden in their document)
If you provided false document (thank god it's not my case), you'll likely get a 10 years ban (I have seen a happy post on the internet saying they subsequently still got a visa by asking lawyers to help applying a family visa AGAIN)
Fraud and forgery
If a person submits a document or information with an application which is independently verified as being forged or
not genuine, you must consider refusing entry or leave to remain. When
you have evidence that a person has done this, either as part of their
current or previous application, the Immigration Rules state that you
should refuse the application unless the deception related to an
application over 10 years ago.
The Immigration Rules part 9: grounds for refusal specified that Family Member under Appendix FM has less restrictions.
A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322
do not apply to an application for entry clearance, leave to enter or
leave to remain as a Family Member under Appendix FM
320 (7A) and 320 (7B) in the document covers previous false representations.
So the safest way is to apply a family visa under Appendix FM.
2. Exceptional Circumstances (if your case is serious):
In addition to the above, there is something called Exceptional Circumstances from Immigration Rules Appendix FM: family members Section EX has EX.1 b) and EX.2, which applies if:
- you apply for a marriage visa (5 years or 10 years route)
- you never have any criminal conviction
- you never have overstaying history (this may need more clarification)
This only applies when it's a serious case and you really need to use human right as a tool to help you.
3. Marriage visa
There are 2 routes for a marriage visa:
- 10 years route: can only be applied in the UK
- 5 years route: the only option for applications outside the UK
3.1 - 10 years route
Appendix FM 1.0 Family Life (as a Partner or Parent) and Private Life: 10-Year Routes August 2015 well explained what "Exceptional Circumstances" is:
Exceptional circumstances must be considered in all cases that fall
for refusal under the Immigration Rules. Where the Rules are not met
but there are exceptional circumstances, leave outside the Rules
should be granted. For guidance on exceptional circumstances, see Section 9
"exceptional" means circumstances in which refusal would result in
unjustifiably harsh consequences for the individual or their family
such that refusal of the application would not be proportionate under
Article 8.
The decision maker should not usually make a decision that forces a family to split if there is no criminality to add weight to the public
interest in removal
3.2 - 5 years route
Appendix FM 1.0 Family Life (as a Partner or Parent): 5-Year Routes
August 2015 refers to the 10 years route for "exceptional circumstances".
10.2.2. Refusing leave to remain as a partner or fiancé(e) or proposed civil partner
The decision maker should go on to consider whether an applicant
failing to meet the requirements of the 5-year partner route can meet
the requirements for leave to remain under the 10-year partner, parent
and private life routes, or on the basis of exceptional circumstances.
For further guidance, see: Family Life (as a Partner or Parent) and
Private Life: 10-Year Routes.
It's worth pointing out the document also says:
Note: A visitor who has overstayed (by any period of time) cannot
qualify for the 5-year route.
So what is overstay then? (The following is in the same document)
8.5.2. Consideration of overstaying The 28-day period of overstaying is calculated from the latest of:
- the end of the last period of entry clearance or leave to remain granted;
- the end of any extension of leave under sections 3C or 3D of the Immigration Act 1971;
or
- the point that a migrant is deemed to have received a written notice of invalidity/rejection,
- in accordance with paragraph 34C or 34CA of the Immigration Rules, in relation to an intime application for leave to remain.
4. Can you meet financial requirements?
I want to also point out an unofficial news page that I found (Stark choice under immigration rules), which indicates that you need to watch out your income and finance, so check carefully if you meet the criteria from official documentation (not covered in this answer).
5. If you worry about whether you would get a re-entry bans
Please refer to Chapter 62 – Re-entry Bans.
In short, these are the main possibilities:
- 1 year ban: if you 1) voluntarily leave, 2) overstay by more than 90 days
- 2 years ban: 1) voluntarily leave, 2) overstay by 90 days to 6 months
- 5 years ban: 1) voluntarily leave, 2) overstay by more than 6 months
- 10 years ban: Enforced removal or deportation
5. Deception flow chart
Finally, I would like to put this nice flow chart from the official website. If you don't get a letter saying 1) False representations or information, 2) Material facts not disclosed, or 3) False documents, then you wouldn't even need to worry so much about it.
Please help me to correct this answer if there is anything not accurate. I really hope this answer would not only help people who really need to use Appendix FM, but also help others to avoid some naive mistakes.
