Need ADVICE - Marriage with an overstayer

[Chili2]

Dear Forum Members,

Thanks for reading through my post.

Im currently in a relationship with an overstayer. We currently do not live together but looking for a place to move into.

Boyfriend’s Past History. – Indian Passport holder
Came to the UK Illegally. In June 2003 he came on a transit visa to Morocco and had a 12hour stay in Heathrow airport and somehow managed to get out of the airport.

Ever since 2003 , he has been illegal in the UK.

I ( British Passport holder) met him in Dec 2008, and I plan to marry him. But the question : is what is the best way to proceed so that he should have no problems in getting settlement visas?

1- Go back to India vouluntarily and get married in India, then pply for settlement visa.
2- Or apply for a Certificate of Approval (COA) here in the UK and after this has been issued get married here in UK , then go back to India and apply for settlement visas.
3- Or apply for a Certificate of Approval (COA) here in the UK and after this has been issued get married here in UK , then apply in the UK for settlement visas.

I went to see an Immigration solicitor who advised me that the best option is number 2, as this would make him have a stronger case when he applies in India for the visas , in the sense that he did use the proper channels to apply for marriage in the UK .

The solicitor said he'd charge £500 for the COA application which he says comes in 3-4 months. After this, we'd have to get married & he'd have to travel to India & submit for settlement visas from there.

Im a bit concerned about the COA as for some forum members, its taken a year to get a decision and the risk of a raid etc & the no permission to work during this time.

Heard horror stories where if applicant is overstayer and applies for settlement s spouse, then a ban of 10yrs can be effected. Our application would clearly state when he was in the UK and also say that he was an overstayer - a honest application.

I'm really in a dilemna and any advice would be greatly appreciated. I just want to avoid taking a long winded route + remove as much uncertainty as possible.

Thank you.

[kittyhen]

I'm sorry to say that I don't have much experience in any of these immigration questions, however I have just been reading on another forum that the COA is now free. On this basis that is a big fee that the solicitor is charging you for this free document?

However, I am not sure how you would get a COA as I was under the impression that you would need to have a valid visa with 6 months or more still remaining to get this??? Maybe I am wrong and there are other channels?

[Chili2]

Hello,

I was under the same impression, that you need a valid visa at least to apply for a COA. However, solicitor even showed me a successful COA application of an overstayer that he had done and was overly confident that getting a COA within 3 months is something he does 'very often'.

The dilemna goes on...

[eliasuk4u]

Go back to India vouluntarily and get married in India, then pply for settlement visa.

This is the only option available for your boyfriend as far as I know as COA is only issued to the people who have valid leave to remain in the UK such as Work permit, student, fiance visa etc.

apply for a Certificate of Approval (COA) here in the UK and after this has been issued get married here in UK , then go back to India and apply for settlement visas.

I don't think its possible in your boyfriends case.

apply for a Certificate of Approval (COA) here in the UK and after this has been issued get married here in UK , then apply in the UK for settlement visas

See the above comment.

I went to see an Immigration solicitor who advised me that the best option is number 2, as this would make him have a stronger case when he applies in India for the visas , in the sense that he did use the proper channels to apply for marriage in the UK .

I don't think he is right as he should be aware of the fact the COA is issued to those who already have LEGAL stay apart from visitors.

[ginoT]

I'm not sure on the precise detail but in the Law Lords ruling on the COA scheme in July 2008 it discussed a case of an illegal immigrant requesting the COA to marry his Polish girlfriend. This was initially rejected by the Home Office but on appeal he won. So if this was indeed the case then I would recommend getting the COA here and then going back to India to apply for the spouse visa.

Check the details of the Law Lords ruling. It is available in full HERE but I'm pretty confident it'll be issued. Just make sure the COA application is otherwise in tiptop condition and have someone professional go over it unless you are prepared to learn the law on this issue (which is doable and people here on the forum can direct on where to look)

HOWEVER I would definitely not recommend trying to get the 2 year spouse visa from within the UK

[Chili2]

Im puzzed what would be the best way to proceed; COA here or go to India, register marriage, then apply for Settlement.

My worry is that is there any chance that the BHC in India can effect a ban of 10yrs due to his illegal status in the UK? I read that this does not apply in spouse applications ie he shoud not be subject to the ban. The issue would be to prove that this is a genuine relationship.

With register wedding in India, he would be able to work after teh 3-4 months settlement visa processing time, unlike with COA which is a long process of 3-4 months cert, then 1-2 months registry in UK , then fly to India for settlement visas - 3-4 months so in all about 1 year for this application. I have also read that COA applications can take a significant time.

I hope forum members are clear out my worry and help me choose the best way to proceed.

Thank you ever so much.

[ginoT]

Let's say you apply for the COA, get married here and then try to get the in-country spouse visa [FLR(m)]. From the Judicial Reviews (High Court judgements) I've read, judges are loathe to allow people to "skip the queue" with regards to the spouse visa purely on the grounds they are married and with no other understandable reasons for being here illegally. So if the HO wanted to fight it out I don't think you'll win at the High Court. You might win at the AIT but it's a gamble.

The COA is now free however and there are no legal grounds to refuse it to you unless they suspect the whole thing is a sham (and even then I think it's debatable they are legally allowed to refuse you the right to marry). So if you're in no hurry I'd apply for that here & get married here and finally apply for the spouse visa from india.

To marry abroad you'll need some kind of authorisation from the embassy unless you're in a country which the UK recognises for marriages (all EU countries are, so is the US, and so is Cyprus as well as others of course... check with the HO for details).

if you can get married abroad quickly and if it's recognised in the UK, then I'd do that. Then apply for the spouse visa from India - if it gets rejected you'll be able to appeal on human rights grounds and should be an easy win. To make sure you get it I'd get a solicitor to go over your application which costs about £500

[saba85]

@gina u wrote''' The COA is now free however and there are no legal grounds to refuse it to you unless they suspect the whole thing is a sham (and even then I think it's debatable they are legally allowed to refuse you the right to marry). So if you're in no hurry I'd apply for that here & get married here and finally apply for the spouse visa from india.

'' i didnt understand ,how can they apply for COA here while he doesnt have legal stay in the country.

To marry abroad you'll need some kind of authorisation from the embassy unless you're in a country which the UK recognises for marriages (all EU countries are, so is the US, and so is Cyprus as well as others of course... check with the HO for details).

'' so if someone get marry in usa and register their marriage there they can apply for settlement from their home country

[ginoT]

ok, I'm not saint in all this as I've asked questions to which some answers are available on the UKBA/HO sites. But they'll be the more nuanced ones. this however is dead straightforward so PLEASE READ THE GUIDANCE NOTES for the COA and follow up on the recommended reading I've posted on this subject. From the guidance notes for the COA:

"You may still apply if you have permission to stay but it is not as described above, or even if your permitted stay has expired...."

The Law Lords ruling described a failed asylum seeker who was eventually granted the COA. Again please read the text of the ruling. It basically said that nothing should prevent a couple from marrying regardless of immigration status

on the 2nd point of where you can marry, probably yes (check with Home Office on this). The UK recognises marriages from the EU & Cyprus for instance. If you got married in Russia they won't UNLESS you get some kind of prior approval there which I don't think will be difficult to get (someone who's got experience on this please can you post any details?)