Query regarding October 1st Ban on Overstayers

[celtic555]

Hello,

I have a question regarding the October 1st Ban on Overstayers.

I have an expired Spouse Visa (I entered the UK as a spouse on 15 March 2005.) I am a US citizen.

I realise now that I should have filed for an ILR after the 2 year period. My understanding before was that spouses could apply for Citizenship after staying in the UK for 3 years. I now the mistake I made because my husband and I took a short holiday in November 2007 and on returning through Gatwick was asked where my currnet visa was. When I told the Immigration Offier that I was waiting the 3 year period; he realised I got it wrong, didn't stamp my passport and told me to please sort out my visa.

I asked a number of people what to do next and got a number of different answers. I filed application FLR(M) in November 2007 inside the UK.

My question is: If I do not hear back from the Home Office until after October 1st and am refused, am I given the automatic Ban of 1 year?

If this is the case; won't the Home Office be bombarded with requests for passports just before October 1st? Wouldn't that result in some people not receiving their passports in time and receiving an unnecessary ban?

Thank you for your time,
Sincerely,
Sandra

[vinny]

If your FLR(M) is refused, then you may apply for a spouse visa, since

26.17.4 When does rule 320(7B) not apply? [Updated 9 July 2008]

Under paragraph 320(7C) of the immigration rules, You must also not refuse an applicant under 320(7B) if they are applying in the following categories:

* Spouse, civil partner, unmarried or same-sex partner (Paragraphs 281 or 295A);

[celtic555]

Hello,

Thank you for your reply.

If the FLR(M) is refused - can I only make my spouse visa application by going back to the US?

As I understand it - you can not apply for a spouse visa from within the UK.

Also, would I be given the Ban if I receive the Home Office decision AFTER October 1st?

Thanks again,
Sandra.

[chibage]

As vinny has said above, there is no ban for family members.

[vinny]

See also United States wife overstay.

[Lady K]

Sandras situation is nearly identical to mine, except that I never filed an application for FLR, and from what I understand, she is trying to get clarification that her best option is to continue to wait for an answer from the Home Office, based on the strength of her case and that her application is already on record? Or should she withdraw her application, and follow the course I did, returning to the States and re applying for her entry clearance as a spouse (prior to 1 October). Have there been any changes to the process since Chikwamba? Or since I made my re entry journey in early July? I know it is doubtful the Home Office would determine that returning to the United States would put her life in danger. The links to the entry clearnce guidelines and where not to refuse edicts are SO very helpful and thanks so much to you wonderful oracles of information that have shown us where to find answers....I personally will be grateful to you all till the end of my days, but do you all know if her best option, in HER circumstances, is still to return to the US? Or should she keep waiting?

[celtic555]

Hello,

Any advice from the experts on this board in this matter would be very much appreciated.

Thank you,
Sandra

[sakura]

Hello,

Any advice from the experts on this board in this matter would be very much appreciated.

Thank you,
Sandra

Considering it's been about 8 months, I don't think you should consider waiting any longer. Since other examples of people returning home to apply have shown that it does not take so long to get a new visa (as long as you fulfill all other requirements and are honest, and have not done anything so extreme as to get your visa refused - i.e. criminal convictions, fraud, etc), it might make sense to go home and apply from there. You could probably be back by September if you do so, rather than continue to wait for the HO to get back to you.

Lady K's experience is brilliant (albeit something she didn't want to experience, of course!) - you should ask her for information on what she did/didn't do. Remember, the US is not Afghanistan - the HO might probably want you to return home, as that is not an impossible task for you to do. You could even turn it into a holiday/family reunification, and make the most of it.

(However, I must point out to always seek professional legal advice, if in doubt, because I'm no expert and I am not giving you advice based on expertise; but merely based on other people's experiences and how the HO tends to treat certain applications.)

[whirly]

I'd tend to agree with sakura, especially given Lady K's success in the same area. If the HO still has your passport, it's probably best to ask for it sooner rather than later so you don't stretch into October unintentionally.

[1971]

HO cannot claim that the October rule will affect her because her passport was submitted prior to the change in October. I know that from my previous experiences with HO and is stated on the BIA website - applications will be considered based on date that it was posted at the post office.