Partner is overstayer, I am British, help please

[fabsanchz]

Thanks for all your advice on the earlier topic. Now, I want to regularize my partners status want to get advice and info on how to go about it. Will it be possible to get it through marriage (in UK), article 8 or any other form on discretionary leave. These are our details:
(1) She has overstayed her visitors visa for about 5 years now.
(2) We have three kids together and a fourth one on the way.
(3) We have not claimed any form of benefit, even child benefit.
(4) I had the third child after I was granted ILR.
(5) I have a clear and no stained immigration history.
(6) I am now a British Citizen.
(7) We have lived together for 5 years.
(8) She has not worked for three years now
(9) I am working full time and paying taxes.

I will appreciate all advice and information please. Thanks in advance.
Fabiano

[ImmAdvCenLtd]

Hi
Your partner could look at an application for discretionary leave but you can ask for consideration of your situation in line with the unmarried partner rules (if you have lived together for two years) exceptionally outside of the rules (as she has no current leave). The outside the rules application would have a cost for the application as they would not consider it without the fee but the status that your partner would get would lead to settlement and citizenship sooner. The bonus with the HPDL is that it is free. As you and all your children are British (they became British once you got ILR if they were born in the UK) there would be strong arguments to be made under Article 8 for all of you and case law indicates that yours and your children's rights have to be examined as well as your partners. Your immigration history and no claims for benefits can only add to your case and will help to tip the proportionality balance in your favour. Her overstaying will count against but would need to be explained and may not be sufficient to tip the balance the other way.

With no current leave you do not get a right of appeal if refused but if they do refuse they would be expected to issue removal directions at same time or relatively quickly after which would allow you to appeal and raise article 8 grounds.

Definitely one to get some help with though as these are complex and you will need supporting case law and evidence. Also given the different applications that could be made and costs involved, you need to make sure that you are submitting the correct application and its on the correct form or you risk loosing any fees you pay.

[fabsanchz]

Thanks so much but what is HPDL and how can she apply for that. Requirements and link to the exact application form. Thanks again.

[ImmAdvCenLtd]

Hi
Here is the HPDL form link. I would suggest you read the guidance. The form is technically for people who already have this leave and are extending so you may find that the Home office will send this back and say they cannot except it because its the wrong form and they will ask you to apply on FLR (M) which is extension of stay for married, unmarried and civil partners. Then they will also be expecting you to pay a fee. You can give he HPDL form a shot as its free but as I said it may come back. You need to send a detailed letter with it setting out why you are applying (ie the legal basis) and what you rely on in support, essentially arguing why your partner should be allowed to stay. They may be prepared to accept this but again they may ask for you to submit on FLR (M). You do need to mention human rights grounds clearly in your letter as the basis for applying but include the unmarried partner rule (the bits that your partner can meet anyway) as well. Here is the link.

http://www.ukba.homeoffice.gov.uk/polic ... xpartners/

Clearly your partner does not presently have leave and she is in breach of immigration laws so she cannot meet the unmarried partner rules so she needs to ask for any application to be decided exceptionally outside the rules and rely on human rights.

If it does come back and they want the fee and the FLR (M) you really need to make sure that you are setting out your partners case in detail with supporting arguements as you dont want to risk a refusal given the large fee your going to be paying.

I would definately recommend advice before applying so that you can be sure that you are taking the correct course of action in relation to yor personal circumstances and you include the relevant supporting case law.

http://www.ukba.homeoffice.gov.uk/visas ... nformHPDL/

http://www.ukba.homeoffice.gov.uk/visas ... ing-in-uk/

The links for both forms are above and the fee for FLR(M) is £550. To get a representative to assist would probably cost about the same. The OISC website has a tool to find OISC registered legal advisors in your area. You need to make sure they are either OISC registered or are regulated by the Solicitors Regulation Authority or legal regulatory body.

Regards
Sarah

[fabsanchz]

Thanks so much Sarah for all your advice and the links that you provided, I am really grateful. Now I want to know if I apply to register my kids as British citizens based on my acquring British nationality, won't their mothers status be a problem as her name and Nationality will still be in the form.

And also the third child that I had after I was granted ILR, do I apply for British passport straight for him or do I have to register him as well as British Citizen like the others.
Thanks.
Fabiano

[Greenie]

HPDL will be sent back without a doubt as she doesn't currently have either DL or HP.