Spouse Visa Expired / Overstayer / Apply via FLR M?

[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.

[HRY2005]

Do you honestly think that would not be treated as an out of time application? As your wife hasn't got a valid leave to remain as at the time of making the application?

Not having a valid leave to remain, means you do not satisfy the rules. Not satisfying the rules gives you the option of applying outside the rules(DL application) and asking the HO to use discretion.

This is only my opinion not a legal advice, your lawyer might be right but think twice and seek a second opinion from another immigration solicitor before submitting your application.

Good luck.

[avjones]

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?

Firstly, compassion is not always shown the UKBA, sadly.

Secondly, it won't be refused just because you're on benefits. But you have to show that you have enough income to live on, and if you're on benefits, it's unlikely you will, whether inside or outside the UK.

[sanjhet]

HRY2005 - My solicitor advised me that because we are outside of rules, I will have to make proper representation in regards to why this happened and advised me this would be the case on any of the forms that we would use. Basically he advised that because we are asking the HO for discretion if they were to accept our excuses then FLR M would be the one to use. Also he did mention we could use SET M and again outline the reason for applying outside of the rules. None of these applications would fail because she has overstayed as long as proper representation is made. I hope this is clear to you.

AVJONES - I am on mean tested benefits and I am able to support myself and family on benefits, not a lavish lifestyle but I can manage without being overdrawn and my bank statements will reflect this. Would this not be sufficient for the HO. I am a UK born citizen and I have a right to benefits.

Thanks / Regards

[mochyn]

Yes this should be enough to satisfy the HO as long as you satisfy the HO in all other areas

[avjones]

AVJONES - I am on mean tested benefits and I am able to support myself and family on benefits, not a lavish lifestyle but I can manage without being overdrawn and my bank statements will reflect this. Would this not be sufficient for the HO. I am a UK born citizen and I have a right to benefits.

Thanks / Regards

It's not a question of life style. You need to show that you have the same amount of money available to the family as you would if your wife was also entitled to benefits. As you (presumably) aren't claiming for her, your income must be less than a settled couple in the same circumstances, so you probably don't meet the income test.

[mochyn]

Although the vast majority of posters here will tell you that you must have over £100 per week available after expenses in order to get spousal visa as per HO rules. I can tell you from experience that it is possible to get spousal visa even if you are on a single persons benefits as I was in 2008.
Everybody told me not possible but it was

[sanjhet]

OK... Im a bit confused now.. Can I or cant I make any form of application for my partner to further her leave? any Form? while im on benefits.. ?

Does anyone have a link to this info on UKBA site?

Who is the general authority on this in this forum.... or is everyone just relating thier own personal experiences?

Hope someone can clarify this and comment accurately on my position?

Regards

[HRY2005]

Can I or cant I make any form of application for my partner to further her leave? any Form? while im on benefits.. ?

Of course you can! as long as you are not claiming additional benefits on your wife. You are entitled to your social benefits. Paragraph 6A-6Ccould explain more on benefits/public funds.

I still believe the right form for your application is FLR(O) because I believe your wife would be classified as staying on without a valid leave(illegally)

[ElenaW]

OP, there are no hard and fast rules when it comes to maintenance in the family path. However, common sense says that it's really hard to live on a single persons' benefit allowance when there's a family involved. The point is to demonstrate financial stability and usually people on benefits can't do that. I've known cases to be rejected due to the british citizen being on benefits and I've seen some approved.

Read the guidance!!!

[sanjhet]

Thanks Guys for the advice!!

In regards to the correct form to use - I have emailed UKBA for advice and for them to clarify their position so I have some form of comeback if rejected.

I believe all the benefits I receive are based on my own reasons and not partners. Strange as it seems but we manage well enough on these benefits and as mentioned before in this thread / topic, my Mother lives with Us and helps us out as and when required financially. She is happy to include this in any application we make. Is this a good or bad thing?

AVJONES - in regards to the above, HO wont only be looking at my benefits but also my Mothers so I believe on financial reasons I wont be refused or is this not the case and you may be the wiser?

Kind Regards, and Much Appreciated.

[avjones]

To qualify for a spouse visa you need to show that:

the parties will be able to maintain themselves and any dependants adequately without recourse to public funds.

That means additional public funds. So a British Citizen is quite OK to claim benefits for himself, but needs to show that no additional public funds are needed to support the spouse.

The problem is that you need to show enough income to support the three of you, but are only claiming benefits for 2 (you and the child). that means you need to show that your income is equal to or higher than the income support levels (plus housing benefit, etc)

[sanjhet]

Thanks AVJones.... Its making more sense now... So for example, we apply via FLR O, submit good documents and explanations and in a roundabout way avoid the maintenance criteria and get further leave for other reasons and at a later date apply for spousal settlement?

My mother declaring she helps with household costs hold much weight to the case? Funny enough, im in the process of signing off benefits and going self employed as a business consultant - this will ultimately wean me off benefits and id be totally self sufficient as far as funds are concerned. Will it help my application going self employed with no record of trading and official notice from HMRC, DWP stating im not on Jobseekers, etc.

Regards.

[sanjhet]

Really need to make a decision by weekend so that application can be submitted next week!

I have emailed UKBA and await their response as to what form I should use... But Im quite happy to use any form as I realise I am outside the rules but also know they will have to make a decision taking into consideration Article 8 ECHR. This is where I know if all other refusals happen, Article 8 will help us.

Incidentally, I understand the benefit scenario much more, BUT, I have managed to survive in this situation for over 18 months... Is this not proof that the benefits I have claimed in my name and partners Carers Allowance is enough for us to get by... Will UKBA understand this yeh??

Kind Regards

[avjones]

What benefits do you actually claim?

[sanjhet]

The benefits im on at moment:

Jobseekers Allowance
Child Tax Credit
Housing Benefit
Council Tax Benefit
Child Benefit
Carers Allowance / Partner

Is this going somewhere...

[avjones]

It is, because the carer's allowance could mean you have enough.

[HRY2005]

I also think that could mean he's claiming additional benefits on behalf of the wife who is excluded from public funds. Just a thought.

[avjones]

I also think that could mean he's claiming additional benefits on behalf of the wife who is excluded from public funds. Just a thought.

Yes, we don't know enough.

[sanjhet]

HRY2005 / AVJONES - If you read this thread carefully you will see the answers to your doubts very quickly... im looking for well informed answers and a response that is well educated as per info provided.

The only benefits my partner gets as per no recourse to public funds is... ie: Carers Allowance.

She came here on a Spouse Visa initially, and has overstayed that visa only... we have made no other applications wotsoever.

Is this quite clear.... please do re-read the last 2 pages.

Im open all ears... any feedback is positive... thanks and appreciated.

Kind regards.

[sanjhet]

My Tag should be - I make no assumptions and go by the evidence presented to me....

I hope UKBA go by the same principle.

Thanks / regards.

[HRY2005]

Sanjhet, if you go through your thread yourself, you'll realised that I have been following your thread from day one and so are many other contributors. No one is trying to discourage you but this is a discussion forum and we are all interested in a successful application for your wife.

We're just looking at the technicalities of the application. Your wife arrived in the UK with a ''Spouse visa'' which carries a ''No recourse to public funds'' tag. The only exception that I know of in your case is ''tax credit'' based on tax credit rules.

UKBA doesn't based their decisions on what you or I think, its based on rules. There are no barriers in you claiming benefits but your wife. Having overstayed her visa or failed to apply ILR because you thought ottherwise, you should make sure that you are one step ahead of the UKBA, complacency is not an option as UKBA caseworkers are full of surprises.

This are opinions of other people based on what we know or have experienced. You should get an expert solicitor who can actually handle your case properly. If the fee is the issue here, you might be entitled to legal aid funding as you are on benefits. I would suggest you dont leave any loopholes for UKBA to exploit in an application that is not straightforward.

Good luck.

[HRY2005]

You might need to go through this as well. and also have a look at what's in paragraph 6A-6Cas suggested to you before.

All that needs to be properly considered before submitting an application.

[sanjhet]

Thanks for your feedback.

HRY2005 - You say the only exception you know of in my case is 'tax credits'...

I am under the impression my partner can claim Carers Allowance too... Can someone clarify this point as there must be hundreds in a similar situation and probably do look to these forums as a starting point / guidance before making a proper informed application.

Carers Allowance is the only benefit my partner claims as per my previous notes.

Help is of course much appreciated.

Thanks / Regards

[avjones]

I think your tone is rather rude. Perhaps you should reconsider.

Carer's allowance is a public fund.