Overstayed... applying for HSMP

[hardraj]

Hi,

Il give you a brief about my situation. I originally came to the country (UK) on a Student VISA (2 years) completed the course and then had an extension granted on the basis of a TWES (1 year) and then on completion of that had a further extension granted on a course for 1 year - to expire in September 2002.

During this final year an ancesrtry application was made on my behalf. Which was ultimately declined. And an appeal was put through. While the appeal was in process I remained in the UK - i still carried on my studies during this whole process. Eventually a hearing date (in 2006) was set and the result was a uphold of the decision. The judge at this point mentioned that I had been an Overstayer, despite the fact that I would have been unable to travel due to the fact my appeal was in process.

I has reapplied on the basis of a student... I still have not left the country. But I dont know whether it will be succesful at all. At the same time I have a girlfrined in the UK who I have been with for around 9 months and we both have plans to marry, but cannot because I do not have the 6 months on my visa to apply for marriage permission. Ontop of this I have looked at the new HSMP guidelines and I score 105 on the new criteria.

What I was hoping that someone would be able to advise me is this - what should I do? What would be my chances - assuming I got an HSMP granted, I would need to go back and apply to come back to the UK? what do you reckon would be the chances? If I was to fly back to Kenya and get married what would be the chances of me coming back based on spouse.... considering my overstay which I still maintain is not a fault of my own, it was uncontrolable.

Further to all of this - I have been here for 8 years now - 6 more years and i could apply for indefinite leave - is that right? but what says that they wont change policies within the next 6 years and increase it from 14 to say 20 years?

I would really appreciate anyones help - Jeff Albright seems to be up to scratch on everything so this is a request to you sir.

Hardeep

[antontony]

Hello,

Well, if you lose your appeal and your reconsideration request is refused you normally have 28 days to leave the country and you do not have a right to switch into other categories.

If 28 days have lapsed and you have not left the UK, well, you have become an overstayer.

That means that your lawful residence clock has been reset, and you will not be entitled for ILR under the 10 year lawful long residence rule.

You mentioned 14 year lawful/unlawful rule. If you are served with any removal instructions (IS151A/B), you may never become settled in the UK irrespective how many years you remain in the UK illegally.

Nothing prohinits you, though, apply for HSMP and get your entry clearance in Kenya.

Also, what is your girl friend's nationality ? You may benefit from her possible British/EEA/ILR status, if any ?

[Jeff Albright]

During this final year an ancesrtry application was made on my behalf. Which was ultimately declined. And an appeal was put through. While the appeal was in process I remained in the UK - i still carried on my studies during this whole process. Eventually a hearing date (in 2006) was set and the result was a uphold of the decision. The judge at this point mentioned that I had been an Overstayer, despite the fact that I would have been unable to travel due to the fact my appeal was in process.

Did you put your ancestry application while you still had a valid leave to remain?

I has reapplied on the basis of a student... I still have not left the country. But I dont know whether it will be succesful at all.

I am afraid, you won't. See Anton's post.
Moreover, your student application from overseas will doom.

At the same time I have a girlfrined in the UK who I have been with for around 9 months and we both have plans to marry, but cannot because I do not have the 6 months on my visa to apply for marriage permission. Ontop of this I have looked at the new HSMP guidelines and I score 105 on the new criteria.

Either marry in the country where you hold nationality, return as a husband to your settled/UK citizen girlfriend or get HSMP approval, get HSMP visa and apply to return. You should be able to although you will be asked to explain your overstaying and show that you won't do it again.

Further to all of this - I have been here for 8 years now - 6 more years and i could apply for indefinite leave - is that right?

Right, providing you never got IS151A and IS151B, see Anton's post.
You might try to apply on Human Rights Article 8 but it will unlikely be successful unless you show you formed relationship that lasted for several years prior to Enforcement Action, then you might succeed in getting the Discretionary Leave. However, I believe the chances are slim.

I would really appreciate anyones help - Jeff Albright seems to be up to scratch on everything so this is a request to you sir.

Thanks for compliment. I am just going through similar stuff...
Good luck!

[hardraj]

Well in it then seems inevitable that the HO will decline my student application. I did indeed make my ancestry application while I was legally i the country as a student. However 28 days have definately lapsed, since they declined my appeal for my ancestry application and the student application is currently in process, the lawyers said that the 28 days would allow for a new application to be placed - they must have just been after the money.

My girlfriend is British - she holds british nationality (passport).

Jeff said: Right, providing you never got IS151A and IS151B, see Anton's post.
You might try to apply on Human Rights Article 8 but it will unlikely be successful unless you show you formed relationship that lasted for several years prior to Enforcement Action, then you might succeed in getting the Discretionary Leave. However, I believe the chances are slim.


Does this mean that even if I was to get an HSMP or a Spouse visa - I will still be unable to get indefinite leave to remain?

Another question is would you have an idea of how long after actually applying for the HSMP visa is it issued, or after applying for the spouse visa is the visa issued?

Is there any reason or would there be any basis for them to decline my entry as a spouse - or to grant me a spouse visa?

Thanks for your input.

Hardeep

[hardraj]

Thanks Antony and Jeff by the way

[hardraj]

One more thing guys,

Would you suggest that I simploy recall my passport and fly back to Kenya and apply for my HSMP or Fiance or Spouse visa?

Since the Home office will more than likely decline my application anyway?

Hardeep