Asylum seeker to spouse visa

[jimquk]

Hi. Someone who has been in the UK for nine years, entered on student visa, overstayed three years, caught working, applied asylum in 2014, in process ever since, but has legally married within the UK to UK citizen 2015, no children, wife meets financial requirements etc: can he apply for spouse visa from within the UK, or he must return to his country? If he returned, would he be refused because of his overstay and illegal working? Would FLR FP be a better option, or just wait for outcome of asylum case?
Any thoughts please? Thank you.

[seagul]

Hi. Someone who has been in the UK for nine years, entered on student visa, overstayed three years, caught working, applied asylum in 2014, in process ever since, but has legally married within the UK to UK citizen 2015, no children, wife meets financial requirements etc: can he apply for spouse visa from within the UK, or he must return to his country? If he returned, would he be refused because of his overstay and illegal working? Would FLR FP be a better option, or just wait for outcome of asylum case?
Any thoughts please? Thank you.

FLRFP without child might not succeed. Better if you return back home and apply spouse visa from there since your UK sponsor is earning sufficiently.

[Jaune08]

Hi. Someone who has been in the UK for nine years, entered on student visa, overstayed three years, caught working, applied asylum in 2014, in process ever since, but has legally married within the UK to UK citizen 2015, no children, wife meets financial requirements etc: can he apply for spouse visa from within the UK, or he must return to his country?

Lately, I've read cases of former asylum applicants whose spouse visas were rejected since they have applied from within the UK (I recall the most recent case of an Albanian national).

My recommendation to this case, he must return to his home country and apply for the spouse visa from there.

If he returned, would he be refused because of his overstay and illegal working? Would FLR FP be a better option, or just wait for outcome of asylum case?

Allegedly, he does qualify for spouse visa FLR(M) and NOT FLR FP. We won't necessarily be refused as an overstayer, but illegal working is indeed a reason for refusal.

Click on the Home's Office Guidance of General grounds for refusal and checks, page 98, which shows the most common reasons for visa rejection.

This page tell you what you must do if you find an applicant has employed illegal workers.
Illegal working causes damaging social and economic problems for the UK. It undercuts
businesses that operate within the law, undermines British workers and exploits migrant
workers. Where there is reliable evidence to suggest that an applicant has employed illegal
workers, you must refuse under character, conduct and associations grounds.
Where the applicant has been fined for an offence related to this, you must either:
• refuse the application (where mandatory), or
• consider refusing the application (where discretionary).

He was caught working, so there's a chance that his visa may be rejected due to illegal working. Don't know about the likelihood of getting a rejection, but there's a possibility indeed.

[jimquk]

Thank you Jaune08. The link you kindly provided refers to those who have illegally employed others, rather than those caught working. However, I do agree that illegal working is a serious obstacle.

That being the case, and with his asylum claim apparently still outstanding, might he not be safer to apply from within the UK? Is it in fact possible to apply for spouse visa within the UK as a current asylum seeker, and would his asylum claim continue unless/until his spouse visa application was granted?

[seagul]

Is it in fact possible to apply for spouse visa within the UK as a current asylum seeker,

When you cannot get a family visa
In some circumstances you cannot apply for, or switch to, a family visa.

Your family member has a work visa or student visa
You cannot apply for a family visa if your family member is in the UK temporarily on a work visa or student visa.

You can apply to stay with them as a dependant instead.

You have a visitor visa or a visa for 6 months or less
You’ll usually need to leave the UK to apply for a family visa if either:

you have permission to be in the UK as a visitor
your visa is for 6 months or less
However, you might be able to switch to a family visa in the UK if you have either:

a 6-month family visa as a fiancé, fiancée or proposed civil partner
permission to stay in the UK for the outcome of a family court case or divorce

[jimquk]

Thank you Seagul: so that seems to leave open the possibility of asylum seekers applying for family route visas, since they are not in an excluded category. Thanks very much.

[seagul]

Thank you Seagul: so that seems to leave open the possibility of asylum seekers applying for family route visas, since they are not in an excluded category. Thanks very much.

As per above official quote he may not be able to switch into family visa from within the UK because he even not have permission to stay for following any family related matter in court.