Overstay on spouse visa

[scared101]

I came to the UK a little over two years ago on a spouse visa, and it came time for me to renew my leave to remain in late September. For various reasons -- really, nothing more than my own disorganisation -- I posted the application 33 days late.

(The application was sent back to me a week later, since I had accidently missed a part of the form when I filled it out. I promptly corrected it, and returned it.)

I'm now freaking out that my application may be declined. Do you think this is a possibility? Is there anything I can do to help the situtation?

I am an Australian, with no previous immigration misdemeanours whatsoever, no dependents, and there should be no doubt that my marriage continues to be genuine, given the evidence I supplied.

Thanks in advance,
M.

[Docterror]

If your application was 33 day late, I am sorry but it may not be good news that you can expect.

[avjones]

They do have a discretion, but as it was 33 days they may well tell you to go back to Australia and apply again for a 2 year spouse visa.

[immigration1]

so now avjones and Docterror are Home Office experts...

[Docterror]

so now avjones and Docterror are Home Office experts...

Maybe... But I will tell you what we definitely are NOT - Bitter! Are you?

[Mr Rusty]

Scared101,
I have some knowledge of this situation, as I followed a similar case on another forum, and the applicant was eventually granted FLR (not ILR as she had not yet passed the Life in the UK test - have you?)
You will almost certainly be refused, and without a right of appeal as the application will be "out of time". Quite possibly they will retain your passport and send it to the local immigration enforcement office to effect your removal from the country. They are doing this now because over the years so many people who have been refused permission to stay have failed to leave of their own accord.
However, if you have been married for more than two years, you may be able to argue that to treat you as an overstayer would contravene their own policy, ref DP3/96. This states that enforcement action should not normally be taken where there is a genuine subsisting marriage with someone settled here and they have lived together here continuously for at least 2 years prior to the commencement of enforcement action - AND - it would be unreasonable for the settled spouse to accompany you abroad. If the spouse is a Brit Cit who has lived and worked here most of his/her life, this could be deemed unreasonable.
DP3/96 is sufficiently wide to net all the illegals who get married in an attempt to prevent their removal, or have not been married for long before the law catches up with them, but you are only only seeking to remain here for the same purpose for which you originally had a visa, and presumably married for more than 2 years.
You are probably going to face the choice of shelling out several hundred quid for legal assistance to go along the lines described above, or buying a ticket back to Oz and getting another visa.
Such is the price of being disorganised.

[paulp]

There is also the factor of time. If you have to factor in appeals and you only get another FLR at the end, it may be quicker to go back and start the 2-year clock again.

[scared101]

There is also the factor of time. If you have to factor in appeals and you only get another FLR at the end, it may be quicker to go back and start the 2-year clock again.

If it comes to a rejection, as opinion thinks it will, I think this is what I will do. I am due to go to Aus for Christmas anyway....

Yes Mr Rusty: We have been married for four years, but the whole appeals process sounds like a nightmare! And, prior to moving here (a little over!) two years ago, my Brit wife lived in Oz and the US for quite a long time. It could be seen as feasible for us to be together outside the UK.

--M.

[paulp]

I don't think obtaining another 2-year spouse visa from Oz would exclude trying to get ILR for the time you have already spent in the UK. The gurus will correct me if I'm wrong. You can think of the new spouse visa as an insurance policy if you're so inclined.

[scared101]

OK -- from reading the developments in this forum over the past week or so, I've gone from being slightly nervous to bordering on insanity.

I havn't heard back from the Home Office yet. I'm actually due to fly to Australia in a couple of weeks. Would it make my situation any better if I were to withdraw my application before a decision is made on it, get my passport back, and voluntarily leave the country? When I front up to an ECO in Canberra, does it look any worse for me to have a 33 day overstay + a refusal, as compared to just a 33 day overstay?

Cheers,
M.

P.S. And for the record, if I'm refused, I'll think that I've been treated with an iron fist. But, I'll also know that I've broken the letter of the law, and so have to cop the consequences on the chin.

[paulp]

Scared, owing to the current refusals due to overstays, I think it would be prudent to get professional advice before leaving the country.

Your overstay of 33 days is relatively short but we don't know how hard the ECOs are cracking down. Get an immigration consultant who is dealing with quite a few similar cases so they may be able to tell you roughly where you stand with your 33 days.

[VictoriaS]

My feeling is to wait. We have heard of successful applications where they were a month (28 days) - I'd wait and see what happens.

Victoria

[scared101]

Well, I have good news. I have been given a further two year period of leave to remain, outside the immigration rules. Given that I applied for FLR(M) and not SET(M), this is in effect, exactly what I was after!

Can anyone clarify what it means for my leave to be "outside the immigration rules"? Does it have any affect on my 3 yr clock for naturalisation?

So, it worked out for me, but I really don't recommend getting into the bind that I did. There are stories of others on this forum (Aussies, like me, even) who weren't so lucky. Things in my favor were that my evidence was rock solid, and my covering letter concise but suitably groveling given my misdemeanor. (Perhaps even the reason my wife and I moved to the UK in the first place was taken into account -- it would be seen as good for UK -- if they have a copy of my original leave to enter application.)

I really do love living here, and won't put that privilege at risk ever again!!

Cheers,
M.

[avjones]

fantastic, glad you got a nice caseworker, prepared to exercise discretion.

For others reading this, I wouldn't advise this as a course of action, it's considerably less stressful to apply wtihin time (-: