Overstaying Spouse

[Lady K]

This is my first post, so looking forward to sound advice! I am American by birth, started travelling to the UK in 1999 as a visitor on 6 month visas, as I have always been enchanted with England, its history and architecture, and made many friends in that time. In 2002 I met the man who would one day become my husband. We married in the UK in 2003, returned to the British Consulate General in New York, armed with all of our documents, and were instantly granted my 2 year probationary leave to remain. This is where I have gotten it completely wrong...My absolute understanding was that after two years , probationary status was lifted, and at the end of 5 years as long as we were still married, I could apply for permanent Leave To Remain. Therefore, I have not filed my application, and technically been an overstayer since December 2005. It was an (idiotic) complete oversight on my part, and never came to light as we havent travelled abroad since 2005. We are still happily married, I am a house wife and my husband supports us, without recourse to any sort of support, and we live a quiet life in the country with our two dogs. Is there ANY hope that this can be resolved by applying to the Home Office for Leave outside the rules? Or must I take advantage of the concession, (320 7B) and return to the US (well before 1 Oct) and apply, and if so, what status am I applying for? I have no ties or connections in the US and we could NEVER live there, my whole life is here. Has anyone had sccess in Newyork with entry clearance as a previous overstayer?
Many Thanks In Advance, for Any Reply

[jei2]

Oo-er.

It sounds like your leave as a spouse has expired and you might have to take advantage of the 1st October concession.

Check with the Home Office first; put everything in writing and see if they would accept your application on a discretionary basis. But don't wait too long for a reply. And don't give them your £750 quid! Just submit a simple query.

In the meantime start getting all your documents together now as they might well say that it was made clear that you would have to apply for ILR before the 2 years probationary leave was up. My pessimistic view is that you will have to go through the whole entry clearance process again.

Out of interest, how did you discover that you had misinterpreted the rules?

[Lady K]

Thanks for the quick reply! This came to my attention one morning as I was sitting having my first cup of coffee and reading the Telegraph with GMTV on in the background, and there was an American woman being interviewed, with a slightly similar situation (I think, unlike me, she had already been refused for another infraction) and was facing removal...What made my ears prick up was that she had overstayed beyond the date on her probationary leave to remain, without filing additional documentation...and I thought, "well, Ive done that...you mean I should have done something differently?" This was in the middle of March,since then I have been to Immigration Advisory Service (which I paid for) who told me I could risk trying to apply from here, but her supervisor felt the poweers of discretion had been removed from the persons making the decisions at the Home Office, and should therefore return to US, have passed my Life In The Uk test....which is ridiculous by the way..why ask me where I would apply for benefits??? Ask me if I think we have a chance in the World Cup? Or what the sun looks like when it sets over the North Cornwall coast, or how to make the perfect Yorkshire puddings...Do you have any experience of people being successful with a LOTR using powers of discretion?
Thanks A Million, K

[yankeegirl]

My pessimistic view is that you will have to go through the whole entry clearance process again.

That's my view as well. You could try consulting with an adviser, but I can't imagine the Home Office would approve an application that is well over 2 years out of time.

I think your best bet would be to head back to the US and apply from there before October 1st.

Again, check with an adviser, but I'm thinking you'll have to re-apply for a spouse visa again. Also, be aware that the application process has changed a bit. It's no longer possible to apply at the consulate in person, and it is now required to give biometric data before sending in the application. (The biometrics are done at a USCIS center).

I was an overstayer and returned to the US to apply a bit over a year ago now, but this was well before these new rules. So, try to meet with a certified immigration adviser and make sure your application is very thorough before you leave, if you choose to go that route.

[Lady K]

Oo-er.

It sounds like your leave as a spouse has expired and you might have to take advantage of the 1st October concession.


Thanks for the quick reply! This came to my attention one morning as I was sitting having my first cup of coffee and reading the Telegraph with GMTV on in the background, and there was an American woman being interviewed, with a slightly similar situation (I think, unlike me, she had already been refused for another infraction) and was facing removal...What made my ears prick up was that she had overstayed beyond the date on her probationary leave to remain, without filing additional documentation...and I thought, "well, Ive done that...you mean I should have done something differently?" This was in the middle of March,since then I have been to Immigration Advisory Service (which I paid for) who told me I could risk trying to apply from here, but her supervisor felt the poweers of discretion had been removed from the persons making the decisions at the Home Office, and should therefore return to US, have passed my Life In The Uk test....which is ridiculous by the way..why ask me where I would apply for benefits??? Ask me if I think we have a chance in the World Cup? Or what the sun looks like when it sets over the North Cornwall coast, or how to make the perfect Yorkshire puddings...Do you have any experience of people being successful with a LOTR using powers of discretion?
Thanks A Million, K

Out of interest, how did you discover that you had misinterpreted the rules?

[sakura]

See here: http://www.immigrationboards.com/viewto ... t=overstay

http://www.immigrationboards.com/viewto ... t=overstay

You can try an in-country application, but it could take anything up to one year or more before you get an answer. So your best bet might be to return home and apply for another spouse visa.

[Lady K]

thanks everybody for your replies, its all alot clearer now, and I feel alot more confident about the process and likelihood of troublefree sucess. Big Question though....it may not pertain to me, but I seem to have read alot of posts from people who were in the act of leaving voluntarily, but were singled out by immigration officers at point of departure based on the obvious overstay in their passport...and issued with something called an
IS151A??? Is this likely to happen to me? Or does it only apply to people with other complications about their situation? Does being named " a person subject to removal" destroy your chances of obtaining the new entry clearance in New York? And if succsessful, what is likely to take place at immigration once we arrive back in the UK (Hopefully!)
Anyone who is confident about their answers, I would love to hear your reply!

[yankeegirl]

it was confirmed during the meeting between ILPA and Marc Owen and David Saville that a person in breach making a voluntary departure, both now and after 1 April 2008, should only ever be served with an IS 151A, confirming their status and not with an IS 151B suggesting that they are being removed. It was confirmed that these are not removals and will not incur the re-entry ban associated with removals. It would be extremely helpful to have this in writing.

This can be found on the ILPA website.
http://www.ilpa.org.uk/ Click on latest news and then the 28 March entry.

I could have sworn I saw this confirmed on a government site, but can't remember where I found it. I will have a look later when I have a bit more time.

The stamp really shouldn't make a defference on your application. They will be able to tell anyways by flipping through your passport that you had overstayed, having a stamp confirming it is just that, confirmation of something they will aready know.

[Frontier Mole]

Due to the concession for voluntary returnee overstayers prior to 1 October 2008 it is amazing how many returnees are actually approaching immigration on the way out to declare themselves. Yes they get an IS151 for their trouble, however that really ends the matter. Closes off the overstayer chapter of their life, no more questions asked.

Under the concession arrangements you have a clean slate so to speak.

I am not recommending taking this approach however it shows that you were willing to clear your immigration position prior to leaving the UK.

Given the information on your circumstances it looks like you will have an easy return to the UK.

[Lady K]

Re the above, Frontie Mole, you mean I should possibly approach someone specifically with the attention of declaring my position and intentions?Or just trundle through the ususal queue for Non EEC passengers as normal...or will I be pulled aside for further enquiry?
The thought is horrifying!... I should stay calm and confident but am reasonably certain I will tremble and stammer!
Its the not knowing what to expect that is so un nerving and the cause of sleepless nights!

[Frontier Mole]

Declaring on the way out

On the way into the UK you will (hopefully) have spouse visa leave to enter!! There will be no questions of any significance of the way in with a spouse visa especially with North Americans.

[Lady K]

Marvellous! And on the way out?? Thats what is really making my knees knock at the moment.....

[ricky]

lady k

don t worry , i am planning to do exactly this as advised by a solicitor
soon i will been returning voluntarily , what i am planning to do is : before checking in about an hour i will go to immigration in the airport and tell them i am an overstayer leaving on my own expense
someone who s been through this described the details for me : they will take you to an office in the aiport and few questions how i got in , how long etc , then they will stamp IS 151 A or B depneds on their moods i think it s more likely to be A
then they will let me go like ant other passenger
it s better to face the music before checking in , then leave
the worst is trying to sneak ou without notice ,

honesty it s better , and they do apreciate it
if you leaving during concession time don t worry a stamp then you will leave : thank god it will be no torture

[hamed]

what if she has child ?

[Twin]

Frontier Mole,

Is it really true that receiving the IS151A closes one's "overstayer" chapter? Are you saying there's likely to be no questions asked regarding one's previous overstay?

If that is the case, why then is there a "significantly contrived to frustrate the immigration rules" clause which pertains to overstaying?

Personally, I think receiving the IS151A stamp on exit only makes it clear to the ECO that one actually left voluntarily and was acknowledged by an immigration who then confirms one's status at the time of departure. It doesn't meant the ECO would ignore the overstay at all!

What a lot of people seem to be missing is the fact that the concession relates to a ban and not necessarily overstay. It means you will not be banned, that's all. The ECO now have their previous discretion to refuse on overstay (although they rarely refused on paragraph 320(11) in the past but given the whole hullabaloo made by Liam bloody Bryne, I won't be surprised if they are more proactive in not exercising their discretion.

With all said however, the success stories have been pouring in since March 17 so it's seems all good.

[Frontier Mole]

Twin,

When I posted the reply, early morning May 16th, that was very much the case. As we all now know Biscuits for Brains changed all that the night before and I like many others only began to find about the 15th May revamped concessions in the days following.

Since then it is now obvious that the trade off between the Human Rights concessionary elements for spouse & family members of the 15th May announcement was the introduction of the "significantly contrived" clause. I have posted my concerns over this trade off elsewhere on the forum and I am glad to say that I have not found or seen any evidence of the rule being used. That said I believe the difference between simple overstayers and say absconding failed asylum seekers is a wide gulf. I would fully expect the absconding brigade to get the negative clause applied to them.

There will be a body of evidence in time that points to what is an acceptable simple overstaying period before "significantly contrived" comes into play.

To answer your direct question does the IS151A issued at the airport at the point of departure bring your overstayer chapter to an end? Yes, I believe it does. It sets the end point in so many ways. It establishes when you left the country, fixes the end date for your period of overstay, it proves (in a minor) way that you accepted your overstayer status and you were prepared to engage with immigration. All of which just might be the difference between a marginal future application succeeding or not.

The concession is not a panacea for all immigration ills. It is merely a way of avoiding a mandatory refusal, which this forum calls a ban. You do not get preferential treatment with your visa entry thereafter; it at best could be described as leveling the playing field.

[Twin]

It is merely a way of avoiding a mandatory refusal, which this forum calls a ban

Yeah, a mandatory refusal which also carries a ban. It's not one or the other, it's both at the same time. The forum not only calls it so, the HO says so.

[Lady K]

Well, I listened to all of your sound advice, which I must say was far more helpful than that of the dozens of immigration solicitors I consulted over the last 4 months. Here is the outcome for those who have followed my story. I gathered all of the required documentation required to re apply for entry clearance as the spouse of a British Citizen (after unknowingly allowing it to expire by 30 months) and returned to the U.S. Had my biomentrics on Friday, Fed-Exed all documents on Saturday (organized into a binder with 10 clearly labelled sections ie application/cover letter/bank statements/accomodation etcetera.) and Monday afternoon received a phone call from the ECO herself saying my file was all in order and which day would I like to travel!!! Hoorah! It arrived by Fed Ex 9 am the next morning!
I made it clear on the cover of my binder that I was applying under the terms of the concession granted by the Home Office for overstayers who were in the country illegally after the 17th of March and prior to 1st October 2008.
Dont know whether it was wise or not, but included a copy of the rules covering when 3207B does not apply, when not to refuse under this rule etc...... not to tell the ECO how to do her job, but to show that I have fully investigated my circumstances and had a new, more thorough understanding of the procedures, demonstrating the unliklihood that it would happen again!!!
I went out of Gatwick, and came back through Heathrow, did not approach Immigration at either part of the journey and of the 4 or 5 people in each direction who looked at my passport, it was only a brief glance, and the overstay was not even mentioned in any way shape or form, nor did I receive an unpleasant stamp in my passport.Its all as if it never was and I am soo grateful for everybodys advice.
If there is anyone out there in similar circumstances, the only advice I would give is DO IT NOW, over document, answer questions confidently, briefly and honestly and make it a point to understand the factors that make your application approvable, and how to address the issues which may make it refusable, if not carefully, clearly and honestly presented.
Biggest ever THANK YOU and big kiss to Frontier Mole and Yankee Girl for holding my hand through all of this...At last I have my life back XXXXXXX

Kathryn

[farneybunny]

Lady K..so u didnt declare yourself on your way out??

Congratulation...and you've just given me some hope

[whirly]

Congratulations, Lady K! Nice to read about your happy ending.

Just to reiterate the obvious, it's not completely over yet... Be sure to keep everything - utility bills, bank statements, etc. - for the next two years so that you can apply for ILR and avoid making the same mistake again.

[jei2]

Congratulations Lady K! And thanks for giving us feedback on your situation.

As whirly says it isn't over yet. Keep an eye on your visa. Stick the expiry date up on the fridge in big red letters.

Now get out there, buy the Life in the UK book and start doing some voluntary work !

[dhasha]

Hello all,
I would really appreciate some advice about what to do. I first came into the with my parents on a visitor’s visa, at this time i was 12 years of age.

Then i became my father’s dependant who was under student visa, this was then refused in July 2003.
So the solicitor that we got advise from, told us to do the following:
He then applied for a British Overseas Citizen, which was granted and refused when he wanted to register as British citizen. He then appealed against the refusal which was dismissed.

Then he applied for ILR in 2005 for himself, me and my mother, this again was refused. I was told to apply independently as i was over the age of 18 by the time the application reached the home office.

So when i applied, i was refused because of not completing the 10 year time period, (8 & half year). This was then appealed on human rights grounds and was dismissed by the judge in 2007.
All this while i did not know any of the immigration matters that has been going on, as my parents never acknowledged any of these problems until we went to the tribunal. I was also sent IS 151B and this was appealed and was sent a IS 151A, I am very confused just don’t know what to do now. SO PLEASE HELP.....looks like I am in MESS!!!!!!

Now that I am 22 years of age and have completed nearly all of my education in the UK would like to move on have a life of my own. In the mean time, I have found the man of my life and have decided to get married.

We had an engagement ceremony in recently, and the wedding has also been fixed for December this year.
My fiancé is an Indian national who is working in UK on a HSMP tier 1 visa. I also have all my family settled here and i have no one in my home country.

Can i still apply as his fiancé or would it be better if we get registered and then apply as his spouse???

Does the 1st October rule apply to me? Or will i be banned for sometime?
APPRICIATE SOME HELP AND ADVICE......
Many Thanks

[Alaa Mesbah]

Hello there.

firstly i would like to thank everyone in the forum for the great work and the advises they gave to vanurable people like me.. my issue is i am Egyptian and i got married to my british citizen wife on 23 may 08 in the uk and my visa was vaild till 10 June 08. i know that i need to go to my home country to get the right visa as a soupse, but at the moment i am still in the UK. i have hear i am allowed 3 month in the country without any kind of documintation, and if i wish to stay for long than that i need to apply for the FLR, is that True or False, and if that is wronge information will ovedrstaying affect my application of FLR?#
a seepy reply will be highly appreciated

regards

Al

[mariebleus]

[quote="ricky"]lady k

I have been issued an IS151A on my passport. On the way out to the airport the immigration officer checked my passport and found out that I overstayed. So I was send to another immigration officer and questioned why I overstayed and where did I stay. Then they have given me a piece of paper indicating my name. Maybe they also got the details in my passport because they get it from me first then wrote on my passport "served with IS151A" then the officer told me that I am banned for 10 years. After that I was able to go out as an ordinary passenger and was able to come home safely. Thanks God! Now I am happy back home. Just don't tell all the details of your whereabouts. They will also ask how much money do you have. Don't tell them a big amount of money if you have that. Just be careful on what you are going to say. Ok goodluck.

mariebleus@yahoo.co.uk









don t worry , i am planning to do exactly this as advised by a solicitor
soon i will been returning voluntarily , what i am planning to do is : before checking in about an hour i will go to immigration in the airport and tell them i am an overstayer leaving on my own expense
someone who s been through this described the details for me : they will take you to an office in the aiport and few questions how i got in , how long etc , then they will stamp IS 151 A or B depneds on their moods i think it s more likely to be A
then they will let me go like ant other passenger
it s better to face the music before checking in , then leave
the worst is trying to sneak ou without notice ,

honesty it s better , and they do apreciate it
if you leaving during concession time don t worry a stamp then you will leave : thank god it will be no torture [/quote]

[celtic555]

Hello,

Just to clarify the 1st October Ban:

If your FLR(M) Application was posted December 2007 and you are still waiting to hear from the HO and then were refused; does the 1st Oct Ban apply? (since the application was turned in before this law came into effect).

I've heard people say that it does apply and others say it does not apply to Spouses.

Any clarity would be very much appreciated. Thank you.