Spouse Visa Expired / Overstayer / Apply via FLR M?

[sanjhet]

Hi... I could really do with some help please.

Background: Im a UK born citizen... Married my wife in India Jun06 - wife came to UK on 2 year spouse visa for settlement on DEC06... All above board no problems so far, time to settle down and live a normal life.

Unfortunately DEC08 I lost my job at HSBC Bank due to volatile climate and from JAN09 applied for Jobseekers, Housing benefit, CTC, Council tax benefit.

Now that my wife was over the 3 year stay in UK this year I thought Id apply for her to get British Citizenship and Ultimately UK passport. I now know this is all wrong and Im in a right mess...

The questions to be answered and advice I need are as follows:

1) Because my wife is a so called overstayer, will she be deported?

2) Do I apply on form FLR M?

3) Im still on benefits and claim all of the above, does this reliance on benefits mean my wife will be refused extended stay? All the benefits were applied in my name and only had joint applications as and when required for applying sake.

4) We had a baby girl DEC07, is she a UK citizen?

This is a very honest mistake and a proper case of never knew any better and never been told any better. I was always under the impression that after a certain time spent in the UK she would automatically be granted UK status.

I look forward to any help and advice so that I can resolve this very unfortunate situation. I am planning a trip to India Late NOV10, is this too optimistic in regards to timescales to sort this mess out?

Regards.

[Casa]

Your wife would need ILR before British Citizenship and in any event the time spent here on an expired visa wouldn't count.
You need urgent professional advice on this.

[sanjhet]

Yes... Im quite aware of the process now regarding ILR and British Citizenship.

My concern lies with my wife and Me applying for extended spouse leave and what chances we have and then follow immigration law page by page!

Hope someone with a similar scenario or someone more clued up can help me on this... I wait in vain!

[geriatrix]

The child is a British citizen.

As for your spouse, the following may be (some of) your options:
1. Apply for extension of stay as spouse giving reason(s) for out-oftime application and hope for UKBA discretion to be in your favour. The flip side - UKBA becomes aware of your wife's presence in the UK without valid leave.
2. Wife returns to home country and applies (again) for entry clearance as spouse. Overstaying in the UK should not affect the outcome of the application.

Wait for others to suggest more options, if any. Seek professional advice.


regards

[sanjhet]

Thanks for the heads up!!

I am thinking of applying while wife is in UK. Im sure I will put up a valid argument regarding the overstaying part and hope compassion is shown. My other concern centres around me still on benefits.... Will a refusal happen due to me claiming the said benefits?

Has anyone had a similar situation? Maybe another thread with similar topic or content?

I will be looking at professional advice once ive clued myself up with these forums,etc. As a matter of interest... can anyone recommend anything in Leicester? Costs involved? etc.

Hopefully light is in sight at end of tunnel.

[al1]

Thanks for the heads up!!

I am thinking of applying while wife is in UK. Im sure I will put up a valid argument regarding the overstaying part and hope compassion is shown. My other concern centres around me still on benefits.... Will a refusal happen due to me claiming the said benefits?

Has anyone had a similar situation? Maybe another thread with similar topic or content?

I will be looking at professional advice once ive clued myself up with these forums,etc. As a matter of interest... can anyone recommend anything in Leicester? Costs involved? etc.

Hopefully light is in sight at end of tunnel.

Im in almost the same situation only my wife is pregnant and has overstayed 7 months. If an overstayer has to go back home and re-apply for EC, does this mean they have to wait a further 2 years to apply for ILR?

[sanjhet]

Hi Ali...

From reading the small print on forms, I am under the impression because your partner is outside of the immigration rules they would have to satisfy the total commitment of 2 years unbroken stay in the UK before applying for ILR. This is what I belive to be called the probationary period.

In my case, my partner is nearly 2 years overstaying and because she has broken the terms of her immigration status she has to apply on form FLR M. Im quite sure if you apply for ILR they will refuse you because your partner has overstayed and one of the main criteria for ILR is to stay within immigration rules for the whole period.... please do not waste your money!

Hope this helps... Im learning all this myself and hope to make a application within a week. Preparation is the key

[al1]

Thanks sanjhet, thats does make sense. Just got off the phone with immigration. The guy i spoke to was very strick, he said she must leave the country immediately. I told him she was pregnant and he said then i must get a doctors note stating she cant travel and apply for ILR, but its at the discretion...etc

I also asked a guy at immigration about FLR? to extend the visa right? he said there is no visa to extend so that would be a waste of time.

Im going to see a solicitor on friday hopefully. kinda good to have someone to talk to about this. Thank god for these forums.

[sanjhet]

Help !!!!!!!

Does anyone have any further advice to add to this or is it just a case of getting professional legal advice now?

Q. Surely my partner isnt the first to have overstayed her first spouse visa... Rather than go back to India and reapply for spouse visa, what FORMS would she need to submit if I wanted to go the compassion route and hope ECO / UKBA grant extension of stay.

Help is greatly appreciated.

[al1]

Sanjhet, look at this site: http://www.iasuk.org

Im planning on going next week, i called them up and they deal with people in our situation; and because you are on benefits you may be entitled to having it done for free. Read the pages.

[vinny]

Has she satisfied the KOL requirements?

[sanjhet]

Al1 - Thanks for the info... Will be contacting them and see if they can help,not sure if I qualify for the free service, because my partner has no recourse to public funds.

Vinny - Yes & No - She has passed the ESOL with UK life and culture content from a accredited learning academy. Her certificate should be arriving any time now / As explained in my post, we was under the impression that she would qualify under the 3 year rule to become a UK citizen.

As it stands, she has overstayed, and im very concerned in regards to what to do. Next week I should have a clue as to what avenue to go through.

Maybe, someone might read this thread and have very similar traits and offer a more suitable solution.

Thanks to all so far!

Kind Rgds.

[ElenaW]

A more suitable solution would be for her to return back to her home country and apply for a spousal there.

By the way, how are you supporting the both of you on benefits?

[sanjhet]

Elena W - How could her going back to India and re-applying for spouse visa be possible due to me being on benefits? Plus, we have a baby 30 months old who is still dependant on her mother ( night and day bursts of breastfeeding ).

Im sure the amount of paperwork needed for a fresh application for a overseas application just wouldnt be approriate.

Please correct me if im wrong.

Rgds.

p.s: my mother lives with me and partner and supports us as and when with financial difficulties.

[HRY2005]

not sure if I qualify for the free service, because my partner has no recourse to public funds.

I dont think Legal Aid funding is classified as public funds. That should not be a problem in your case.

Elena W - How could her going back to India and re-applying for spouse visa be possible due to me being on benefits?

While returning home to make an application is still the easiest solution to the problem but given the facts of your case, its not the way out in my opinion, as you have also realised.

As mentioned before, a DL application seems the right option. Contact the IAS as suggested and see what advice you'll get. If you are lucky to get a new job quickly and go off benefits, then you can start plans on your wife returning home to make an entry application. otherwise, NO.

Good luck

[ElenaW]

OP you're right. It would probably be a refusal based on your financial situation. Can you quickly find a job? Like any job? This would be a lot better looking when applying.

I see your situation is very difficult but the DL route is a long long route. That's why I suggested applying from India.

[sanjhet]

Thanks for the help so far...

DL = what?

If I just told them the truth and said it was a mis-hap, whats the likelyhood of them extending leave for a temporary term again??

To breakup the family and have 1 partner overseas with a baby involved seems so so harsh... I would be devastated if that would happen... A key point I forgot to mention is my partner has been awarded carers allowance to care for my mother... will this help or hinder the chances... Also... DWP asked to see partners passport only this year via post and the visa inside clearly shows she had no leave or an extension since 2008DEC... they still sent passport back and awarded her carers allowance.

Any ideas / please.

Thanks!

P.s: sorry for any typos... im on mobile web.

[geriatrix]

DL = what?

Discretionary Leave.


regards

[sanjhet]

Thanks sushdmehta!!

Do you have a link for the guidance notes and form?

Regards.

[HRY2005]

Thanks sushdmehta!!

Do you have a link for the guidance notes and form?

Regards.

While I will suggest that you seek the advice of an OISC registered solicitor or the IAS as suggested before.

The Guidanceand the form is Form FLR(O)

[sanjhet]

Thanks All for the help and advice - Really appreciated!

Ive obviously been looking into this and doing loads of reading on legislation, guidlines etc.

An interesting point and possible avenue of application is the route regarding 'Article 8 ECHR' where the guidlines suggest if an applicant has an established life in UK with UK spouse and UK child ECO would show discretion and grant DL in favour due to contravening factors of the legislation. I have ample proof that we have led a full married life in the past 4 years, with photographic evidence of family gatherings, outings, functions, possible letters of support from friends, relatives, library, ESOL classes, playgroup to name a few.

From advice on here, I take it everyone is in agreement that it would be Form FLR O to make the application on?

I intend on contacting the IAS to make sure all legalities would be fulfilled before an application is made and hopefully get them to represent us.

Any further advice, opinions, help is warmly accepted and appreciated.

Kind Regards.

[sanjhet]

HRY2005 - Your guidance notes differ from the official FLR O guidance notes.. Are the guidance notes you linked concerning DL also valid and upto date as of now?

Thanks / Regards

[HRY2005]

HRY2005 - Your guidance notes differ from the official FLR O guidance notes.. Are the guidance notes you linked concerning DL also valid and upto date as of now?

Thanks / Regards

The one I sent to you was everything you need to know about the application called DISCRETIONARY LEAVE TO REMAIN. I copied that from the UKBA websites and its up to date. The FLR(O) guidance notes is about ''how'' to make your application.

Thanks

[sanjhet]

Thanks to all so far... got a interview eith IAS on monday - hopefully should have a general idea then!

If anyone has anything else of interest / importance please feel free to add... i have learnt so much already with everyones input.

Thanks / Regards

[sanjhet]

OK... been and seen a IAS advisor and basically advised me to apply on FORM FLR M due to the fact she is a spouse.

Explain the situation in letter format in regards to the overstaying part. ie: we didnt know the rules and thought we would apply for UK British Citizenship, 3 yr rule.

Explain in letter with photos, letters, b'day, valentine cards, etc that we were leading a normal family life over the last 4 yrs and the strenght of it with testimonials from groups, nursery, etc.

Supply all documents as per guidance notes. But the main point was to make sure in letter format that we are leading a a strong family life what with toddler girl, 3 yrs. and the possibility of my wifes removal would contravene Article 8 ECHR.

So... I will be applying on FORM FLR M in due course. Any ideas? btw. He said FORM FLR O isnt really applicable due to the fact they always take into consideration Articale 8 in all Forms so FLR M is the most suitable and hope they accept our plea and obviously strong application with good paperwork.

Regards.