Lawyers Advised Reapplying Instead of H&C Appeal – Is This the Better Option?

[Janix]

Hi everyone,
I’m seeking additional insight regarding my brother’s situation after a refused spouse sponsorship due to non-declaration of a common-law partner.
As mentioned in my previous post, he is considering a humanitarian & compassionate (H&C) appeal. However, we recently consulted with two immigration lawyers, and both advised not to proceed with the appeal.
Instead, they recommended reapplying for sponsorship in the future, and they seemed fairly confident that this would be a better approach than pursuing H&C.
This left us a bit confused, so we’re hoping to get more perspectives from those who may have seen similar cases.
Our questions:

• Why would lawyers recommend reapplying instead of pursuing H&C, given that non-declaration issues are involved?
• Is there a higher success rate with reapplication compared to H&C in these types of cases?
• What are the risks of abandoning the H&C route and starting over?
• Has anyone had success reapplying after a refusal due to an undeclared common-law partner?

We understand every case is different, but we’d really appreciate hearing from anyone with similar experiences or knowledge in this area.
Thank you very much for your time.

 

[armoured]

If you have lawyers, and have spoken to two different ones, and got the same answer from both, then I would strongly tend towards following their advice.

And most importantly: asking them the questions you have above, and specifically, WHY they recommend one over the other.

My minor input into this as ways to formulate these questions (and also to see what you have done):
-what do you mean by an H&C appeal? If you appeal a spousal sponsorship decision (based on common law being undeclared), you should do this on 'the facts' (or even if the facts of cohabitation are against you, that you 'did not know' etc and therefore it should not be considered / it should not be considered you had intent to misrerpesent because you could not know). You may be asking for some 'leniency' on that determination, but again, the /factual/ determination should be that you could not have intent to misrepresent.* The important thing is that this is not an H&C appeal (there really isn't such a thing as far as I'm aware).
*This intent thing for misrepresentation is not as simple as it sounds - it's a bit of a grey area in that, as the old saw has it, 'ignorance of the law is no excuse' (a statement that in itself is also not absolute). Not to get lost in weeds but the basic idea is that if you're appealing on this basis, it has to be a very credible case that you not only didn't know, for various reasons, you thought the opposite/had no reason to suspect/etc. (Or in a simple formulation, a "reasonable person" in your situation would not know even that it was something that could apply to them".
Anyway: if you have appealed, the lawyers may think this is going to be much longer / more expensive / lower likelihood of success than the other options (see below).
And if that's the case, ask them why they think this.

(If you haven't actually appealed that decision, then I would guess it means that it's too late to do so)

-If what you've done is make an H&C application for permanent residence (not formally an appeal): probably the reason they're saying this is that it will take a VERY long time (and still not certain - H&C is not supposed to be used as a mechanism of appeal, basically, or a means of application to avoid other means of application). But again, ask them.

-Assuming that what they're saying is to re-apply, the question to ask them is basically: you understood/understand that if it was appealed on basis of non-declaration of common law spouse (misrepresentation), that this makes your spouse ineligible to be sponsored forever. Is that incorrect? If it's not incorrect, how do they expect to surmount that obstacle? (Are they saying that the previous misrepresentation determination can be overturned, or appealed, later?)