overstayer

[Lex83]

Hi all,

I’m new with this. I hope I’m posting this in the right section. Am trying to do my wife’s aunt a favor. Her aunt came to the UK in 2007 on a 6 months visitors visa from Dominica (Caribbean) staying with one of her best friends. The aunt wasn’t communicating with my wife much and we found out a year later that she overstayed (long story which I will spare you). The aunt met her (now) boy friend at that time. He’s originally from Nigeria but has UK passport. He lives with his sister (hasn’t got a own place) and is in and out of jobs which means he can’t really support her financially.

The aunt is pregnant now by her boy friend and she’s feeling really stressed. That’s why she reached out to me wife asking her if I would be able to help. I agreed to do this. I’m doing some research on the internet. Basically what I’m trying to find out is, if there’s any way she is able to apply for some sort of visa with the help of her boyfriend (who has UK citizenship) without leaving the UK? Also, could you recommend what the boy friend is to do first? I reckon find a steady job asap and getting his own place, bills etcetera!

Hope you could advice us.

Lex

[Lex83]

Just to add to my post above. I’ve read through some of the past overstayer posts and I believe now that if the aunt was to decide to go back to Dominica and apply for a visa from there, she would most likely be refused entry to the UK and will receive a 10 yr ban. In this case what could she and her boy friend best apply for while both being in the UK? What will give her the best chance (if any)?

[julian1972]

Just to add to my post above. I’ve read through some of the past overstayer posts and I believe now that if the aunt was to decide to go back to Dominica and apply for a visa from there, she would most likely be refused entry to the UK and will receive a 10 yr ban. In this case what could she and her boy friend best apply for while both being in the UK? What will give her the best chance (if any)?

The chances of refusal before the baby is born is very high. How long have they been together/dating? Best if the boyfriend can find a job and an accommodation and they live together as a family with a view to making an application in future after the baby is born.

[Lex83]

Thanks Julian for your quick reply.

They have been together since 2008. I know it's a long time and I personally don't understand why he has not tried to get a place of his own before (I guess his sister's to good for him). While writing this I'm questioning myself if marriage would speed up the process? They go regularly to the same church for years now. Would a marriage in church be recognized as the real deal? I mean, I assume they can't get married in a normal venue due to her status?

Lex

[Lex83]

*sorry don't want to sound dodgy here but I'm just exploring the options for them.

[Casa]

If they marry they won't have to prove they have been living in a relationship 'akin to marriage for at least two years. However, although the birth of the baby will strengthen an application outside of the Rules, only an FLR(FP) application is likely to succeed which will be a 10 year path to permanent settlement is granted.
It would be wise to seek legal advice.

[julian1972]

*sorry don't want to sound dodgy here but I'm just exploring the options for them.

Seeking professional legal advice is highly recommended, based on personal experience I would not advice that the application is made until after the child is born.

[Lex83]

Hi Casa,

Sorry but could you clarify 'If they marry they won't have to prove they have been living in a relationship 'akin to marriage for at least two years'? Do you mean that if they would be married (in church or registry office) that they don't have to prove their relationship even if let's say they are married for only 1 day?

Within the 10 yr path you mention, would she be strictly forbidden to travel and/or work?

Lex

[MPH80]

Hi Casa,

Sorry but could you clarify 'If they marry they won't have to prove they have been living in a relationship 'akin to marriage for at least two years'? Do you mean that if they would be married (in church or registry office) that they don't have to prove their relationship even if let's say they are married for only 1 day?

Within the 10 yr path you mention, would she be strictly forbidden to travel and/or work?

Lex

Exactly that - if you are married - then there's no need to prove previous cohabitation - although the marriage request to the local registrar might get looked at more closely if there was no history! (But there is - so that's ok).

The 10 year path puts no such restriction in place - but it is a long and testing time to secure the visa.

[Lex83]

Thank you MPH80.

You mention 'The 10 year path puts no such restriction in place'. I'm not doubting your expertise (because I have none in this field!) but I understand that there is not even a restriction on travel? So as a married couple they could go on holiday and come back to the UK? I wonder if that would go so smoothly?

Lex

[MPH80]

It's fine - as long as she has a valid multi-entry visa (which all settlement visas are) she can come and go.

If her circumstances change - e.g. she got divorced and lost custody of the child - that might be different - but if she's just going on holiday it's fine.

But don't underplay the challenges in getting on the 10 year settlement path - it will probably require an appeal - maybe 2 unless they get very lucky.

[Lex83]

Thank you.

Ok so if I understand correctly she could come and go on the condition that she's married (and stays married) during the 10 yr path while holding a valid multi-entry visa. Will this multi-entry visa be granted to her in her situation? As she's technically still an overstayer (even though married).

By the way, I agree with you. I don't expect such a 10 yr path to be an easy ride.

Lex

[MPH80]

The are nuances in there - for example - if she left for 2 years and tried to return arguing she was still living with her husband - that might cause problems.

But the basic premise is: If she's granted a visa - and her circumstances don't change - then she - she can come and go.

Will the visa be granted? I'm a bit of sceptic on this. She's an overstayer, in a relationship established while she had a questionable immigration situation, with an (almost) new born. The Home Office will argue strongly that she can relocate back to her home country with her husband and baby - and that there'd be no impact on the baby.

The boyfriend should regularise his circumstances and it will help the application - e.g. if he doesn't have a job that strengthens the 'could relocate' argument.

I'd expect a rejection from the Home Office on the first hand followed by an appeal which they *might* win. Impossible to give odds on it though.

Without the boyfriend having a job - then attempting to apply for a 'normal' spouse visa out of the country is out of the question - so this, or the surinder singh route is her only option.

[Lex83]

Thank you. Well I agree too that it will give her problems if she would leave for a long time. I'm picturing a holiday for a week or two.

To sum up what I think is best based on what I have been told so far:

-Wait till baby is born
- boyfriend should get a place and job ASAP. I think this should definitely happen before the baby is born.
- after the birth, get married. I would suggest in the church they both attend for years now.
- After marriage apply for multi entry visa
- Stick together for the coming 10 yrs

They key here is that he can support her financially. Would a job contract and let's say 2 recent pay slips be enough to prove he can support her?

Lex

[MPH80]

No - the Home Office generally require 6 months worth of evidence to confirm support.

The key to gaining the 10 year path visa is not proving support, but proving insurmountable obstacles to living elsewhere. Having a baby helps with that and confirming the relationship through marriage helps. But I still think the case is weak.

They may find that him getting a job/flat - them getting married and, after 6 months, then her returning and applying for a legitimate spouse visa might be a quicker path to resolution (which - providing she hasn't worked illegally while here is probably possible).

[Lex83]

Thanks for pointing out the 6 months minimum for evidence of support and 'proving insurmountable obstacles to living elsewhere'. Now I see how Home Office would look at this.

Would Home Office give a guarantee on paper or something that they will give her entry without hassle or 10 yr ban to enter UK if she would apply for a spouse visa from Dominica? Isn't that too risky?

[Lex83]

Or, if HO urge her to go back to Dominica and she agrees on their conditions and apply from there, she would still be in an ongoing application right? So while she would still be in an application (even from outside UK) and no final decision by HO has been made they can't just deny her the visa or delay for no reason. Am I right?

[MPH80]

They'd never do such a thing in terms of offering any kind of guarantee.

However, if all she has done is overstay - e.g. no illegal working, no crime etc - then there's no ban under the spouse visa rules she'd fall foul of. If she met all the requirements of the standard spouse visa - financial, english language etc - she would probably be granted the visa. The 10 year ban you are talking about is specifically against deception which doesn't apply to spouse visas.

However, there is a ban known as 320(11) which is a discretionary ban applied to those who have attempted to frustrate the immigration rules - by committing multiple immigration offences - e.g. overstaying and working which she might fall foul of.

She should also note that as an overstayer, she may be faced with a bill from the birth of the child, which may prevent a legitimate visa application until settled.

UKVI have to follow process - if they refused the visa for no reason she can simply appeal.

[Lex83]

Thanks for clearing that up MPH80. No I'm pretty sure she or he didn't commit crimes or that she has worked in UK illegally.

You mention 'if she met all the requirements of the standard spouse visa - financial' In financial you mean that her husband can support her and the child and can provide at least 6 months evidence?

Lex

[MPH80]

The rules are reasonably straightforward - albeit with a lot of nuance - a standard spouse visa application would have to prove he had income of £18,600 or over (per annum) for the last 6 months with the same employer OR that he has income of £18,600 or over (per annum) over the last 12 months AND that he had that income today - but in the latter case it could be with different employers.

The child wouldn't need to be funded as they'll be a british citizen - providing they are born inside the country and potentially even if they are born outside the country.

[Obie]

This threat has really lost me.

Some post i read, the 10 years rule, on the basis of the child, some i read, the 10 years rules on the basis of partner, some i read 18,600, some i read that once the baby is born they will say the father, mother and baby can return.

I think in the current circumstance, one can comfortably eliminate the 18.6K, unless she intends to leave the UK and apply from overseas, or wishes to make an application under the 5 yrs pathway once she has secured an immigration status.

At present only the 10 year partner or 10 years parent route is open to OP's friend.


The prospect at present is very slim, but once baby is born, it will be improved significantly, provided the baby is British, which i believe will be the case.

[Lex83]

Hi Obie,

Thank you for weighing in. I went through this post again and I think MPH80 has a good point when he says:

'The key to gaining the 10 year path visa is not proving support, but proving insurmountable obstacles to living elsewhere. Having a baby helps with that and confirming the relationship through marriage helps'. I do think him having a reasonable paying job would certainly help. I mean would HO really allow her to stay if he's jobless or earns less then 18.6K?

At the end of day the aunt has overstayed and I don't think HO will make this easy for her. Whether it's a 10 yr visa path or 5 yr, I think that being able to work and going on holidays in the mean time would help her, husband to be and child a lot (which I understand now is definitely possible..?).

Lex

[Obie]

The test of "insurmountable obstacle" applied to Exception 1B which deal with British or Settled partner.

The test of "unreasonableness" applies to British child or a child who has been residing in the UK for 7 years of his or her life.

Those two tests have very opposite criteria.

The test of unreasonableness far easier than insurmountable obstacle.

The person in the UK at present has no immigration status, and hence can only apply under the 10 years route as a Partner or a Parent.

Parent can only apply once the baby is born.