I need your help, desperately please

[Twin]

I am 28, been in the country since the age of 17 when I came in as a student and lived with my aunt who later returned to my home country with my passport and being so young, I knew nothing about regularising my status so I continued living. It was when I was about to gain admission into the university that it came to my knowledge that I was now an overstayer and effectively illegal.

I met my husband in 1998 and after 4 years of courtship, we had a daughter. 2 years after the birth of our child we applied for residency. It's been 3 years since my application and I have only a few days ago received a letter from the home office requesting that I provided my 'husband's' passport together with utility bills, letter to prove that we receive child benefit and letters from my daughter's school.

seems straight forward but the problem is that my"husband" left home leaving me with our child in the middle of 2006. I didn't think much of it, I thought he would return but till this day, he is still shacking up with another lady. I have been left with the burden of a child to care for on my own.

Although I know this is inappropriate and illegal but I have been working since my arrival in the country and I thank God for his mercies in that regard because then, it gives me the opportunity to care for my child and myself at such a time as this.

My husband claimed the child benefit from the start as I couldn't because of my status. He also claims child tax credit and family tax credit as a single parent but I wasn't aware of the latter until whether by mistake the letter arrived at my address. I was shocked to say the least. I was hurt as well as I have never since the birth of my child received a penny from him in support. I have always cared for our daughter on my own whilst he chipped in sometimes. I ask for the child benefit and he tells me he saves it but never provided proof of such. I continued to bring up my child on my own.

Now, i'm a single parent with an estranged husband who lives with another woman. Now it all adds up. I should have known better really as I have seen the said lady in our house a few times and have proof that he was cheating with her but he always threatened me to pull out of our application if i so much as protest. I lost my self esteem and I didn't want to be a single mother so I stayed put and endured but now he's left me.

Not to ramble on any longer, i'm in a dilemma. The home office after 3 years have finally replied asking for documents that though I can produce, but without the child benefit and the passport as he still receives them and he is adamant on producing. What does this spell for me? My daughter doesn't turn 7 until January. What happens now? Would I be asked to go back to a country in which I have no family? My dad and other sibblings are here and my mum died a long time ago. I left the country when I was rather young as well.

What do I do? Please advise me.

[Jeff Albright]

Sorry to hear about the problems like these...

One of the critical questions to ask at the outset - is your "husband" British?

I assume he is and this is probably why you are being considered under the DP3/96 concession.

To succeed in it, you must prove that you have lived coninously in a relationship for the past 2 years AND your marriage is genuine and subsisting. From what you said, although it may not be your fault, the latter does not appear to be the case so unfortunately, you will not be able to avail from the above policy. Your application will therefore have to be refused.

You will have the right to appeal and I would say basing on the brief information you have given, that you have a chance to be successful in your Human Rights Article 8 "Respect to Family Life" Application because:
- You have lived in the UK for 11 years
- You have been in relationship with a British citizen but he has left you
- You have a child who is a British citizen and you maintain contact and close relationship with the child
- You have tried to regularise your status but the Home Office have delayed consideration of your case for at least 3 years
- You were relatively young when you came to this country and you will need to explain credibly the circumstances of your aunt leaving and taking your passport away so that you could not leave the UK (if it is what held you here)
- What are your other circumstances and your further ties with the UK? Have you built your career here, have you obtained degrees, are you in good employment?
- You will also have to show the absence of any route, under which you can in principle obtain an entry clearance if you were to be removed from the UK. You need to pinpoint that because your husband has left you, your spouse application will not be successful, etc.

This will be the avenue for you to fight your case. If you DP3/96 is refused, you will probably receive the Statement of Additional Grounds where you need to give the above information. This will constitute your HR application under the Article 8. If it is refused, you will be able to appeal to the AIT where you will again, need to emphasize these points. If your appeal is successful you will be granted Discretionary Leave for 3 years. This can be extended for further 3 years after which you will be able to apply for Indefinite Leave to Remain. I can estimate that the timeline for your prospective settlement will be between 7 - 9 years from this point of time, if you pursue your applications and appeals in-country and providing your final appeal is successful.

Good luck to you and let us know how it is all going.

[Twin]

Thank you ever so much for your detailed response, Jeff. I am very greatful for your listening and sympathetic ears.

Yes, my husband is British. When I made my application, the solicitor also included human rights issue but i'm not sure if this would be taken into consideration by the Home office too or they would just outrightly refuse the application as the marriage has broken down.

I do have a job and have done so since my time here but I am a bit apprehensive telling them of this. Wouldn't they contact my place of work about this? Wouldn't this be big problem for me if my employers find out i have no right to be here? I need to know as I am all by myself. If I lose my job, there would be no where to turn to and no other person to care for my daughter and I might lose the roof over my head.

Now, if this drags on to the appeal stage and I hopefully get a dl granted, I am not very keen on having to wait several years for my ilr. So my question is this:

Is there a way of dragging this till January which when my daughter will turn 7 and I might be considered on that basis for an Ilr? I think that might be a better avenue but of course I don't know how this things work so I would appreciate your advise once more.

Thank you so much. I am very grateful.

[Twin]

...oh! And I forgot to add that my marriage subsisted for 6 years before application and 2 years after the application. His letters still come to this address. We have pictures, lots of them up to a year ago. I can easily prove this. It is also very genuine.

Do you think if i can prove all this without his passport, they might just consider me? Afterall we are not divorced?

[Twin]

Should I go ahead and produce the other documents which I do have?

[Jeff Albright]

Yes, my husband is British. When I made my application, the solicitor also included human rights issue but i'm not sure if this would be taken into consideration by the Home office too or they would just outrightly refuse the application as the marriage has broken down.

Yes they will consider this all but sometimes you have to break it down in stages when dealing with the Home Office. Your HR grounds will be different now from what they were before.

I do have a job and have done so since my time here but I am a bit apprehensive telling them of this. Wouldn't they contact my place of work about this?

No they won't d it, you are now still within the application process. They will not do anything to you until your application is decided.
When you are making an application, you will need to specify your profession, your skills, your education, your experience but it is not necessary to tell them where exactly you work, as it is irrelevant at this stage. Even if you did, it is illogical and not a common practice for them to appoach your employer. In fact, it never happens.

Wouldn't this be big problem for me if my employers find out i have no right to be here?

I would refrain from giving any information to your employer unless they specifically ask for it. Technically and speaking in strict law, you are not entitled to work as an overstayer while you are entitled to remain until your application is decided. But I can tell you for sure, that in the circumstances you are at the moment, the BIA will not deprive you of your employment.

Is there a way of dragging this till January which when my daughter will turn 7 and I might be considered on that basis for an Ilr?

If your "husband" is the father of your daughter, then she is British by birth. Have you not registered her and got a passport for her yet?!

I think that might be a better avenue but of course I don't know how this things work so I would appreciate your advise once more.

No worries at all. Just feel free to post here any questions you want. This is what this board is here for.

[Jeff Albright]

...oh! And I forgot to add that my marriage subsisted for 6 years before application and 2 years after the application. His letters still come to this address. We have pictures, lots of them up to a year ago. I can easily prove this. It is also very genuine.

You can try to submit the documents exactly as they requested. However, if they ask for your husband passport or if an Immigration Officer visits you or calls you for an interview, you may be experiencing problems unless you talk to your husband and ask him to cooperate. I don't know and it is not my business how your relationship is going now but if you can prove that regardless of his mistress, your relationship is still subsisting, you may be successful under the DP3/96, you are being considered.

Afterall we are not divorced?

You can still be married but what matters is that your marriage is subsisting, i.e. you still live your relationship.

[Jeff Albright]

Should I go ahead and produce the other documents which I do have?

You should only produce the documents requested and do not volunteer any information to the Home Office or to your employer.

[Twin]

Thanks, Jeff.

My daughter is indeed British and she has a British passport but I suggested the 7 year concession hoping this might help me to remain as well or the fact that my daughter is now a citizen automatically disqualifies me from this concession?

I am so stressed right now. I am having to grovel to my husband but he isn't giving me the time of day. I am losing all dignity here. This could have been a straight forward case if he would have just provided his passport but I understand that he doesn't have to do so as we are no longer together. I was hoping that he would be sympathetic at least for our child's case. If I get denied and have to go back to my country of origin she would have to come with me but we have no one there to stay with!

Is there any chance that the HO will take into consideration that we are not divorced so in essence we are still a couple but no living together? I am hoping to reconcile and who knows this might still happen.

Basically I want to know if I might still qualify for the seven year concession.

[Twin]

You can try to submit the documents exactly as they requested. However, if they ask for your husband passport or if an Immigration Officer visits you or calls you for an interview, you may be experiencing problems unless you talk to your husband and ask him to cooperate. I don't know and it is not my business how your relationship is going now but if you can prove that regardless of his mistress, your relationship is still subsisting, you may be successful under the DP3/96, you are being considered

Thanks for taking time out to respond.

Yes, I am able to produce all other documents without his passport. We actually submitted this on the first leg of our application when things were rosy along with my daughter's passport.

Now, if I produce all other documents without his passport and the child benefit which he receives by the way, what is likely to be HO's response?

[Twin]

I guess i'll have to send the documents I have and wait for their response then. I'm happy to explain that we are no longer together when/if they ask. I will just have to face the consequence.

Such a shame that after so much struggle I am almost there but not quite. I guess here is where the cookie crumbles. It's bad enough to be taken advantage of by your husband because of your status. Having to bring up a child on your own yet your husband spends money that's meant to be for your daughters upkeep and keep applying for benefits on the claim of a single parent when the child doesn't live with him but to cap it all off, being denied leave to remain to carry on caring for your child!

This is depressing for me.

I'm being cheated by my husband and being defeated by the law. It is well....

[Jeff Albright]

7 year concession (DP5/96) applies to a family subject to immigration control. Your daughter isn't. So you cannot benefit from it.

However, the length of relationship with your child is something that you should use in your Human Rights application.

You should send the documents requested by the Home Office asap. They may not ask for your husband passport, lets hope not. They may decide on the information you have already provided. You just have to be positive about this. If they do ask for it and subsequently refuse you, there is another way, although lengthy and tedious but there is.

One thing to tell you and there is a case law about this. If your application fail and you could not benefit from the Home Office concession because of the Home Office taking 3 years to consider it and your relationship now is no longer in being, you may claim that the delay has disadvantaged you. You will need to bring this ground to the Home Office attention. This is a very strong point....
But lets see what happens with your DP3/96, if they turn you down, we will see what to do next. Keep us posted!

Good luck!

[global gypsy]

If you have lived here more than 10 years, I thought you could apply on your own...

[Twin]

7 year concession (DP5/96) applies to a family subject to immigration control. Your daughter isn't. So you cannot benefit from it.

However, the length of relationship with your child is something that you should use in your Human Rights application.

You should send the documents requested by the Home Office asap. They may not ask for your husband passport, lets hope not. They may decide on the information you have already provided. You just have to be positive about this. If they do ask for it and subsequently refuse you, there is another way, although lengthy and tedious but there is.

One thing to tell you and there is a case law about this. If your application fail and you could not benefit from the Home Office concession because of the Home Office taking 3 years to consider it and your relationship now is no longer in being, you may claim that the delay has disadvantaged you. You will need to bring this ground to the Home Office attention. This is a very strong point....
But lets see what happens with your DP3/96, if they turn you down, we will see what to do next. Keep us posted!

Good luck!

But Jeff, I find it quite astounding that parents whose children are subject to immigration control can benefit from the seven year rule and people like me cannot. It's now a curse that my child is British? I was actually hoping and holding tight on that concession for vindication. I think that concession is lop sided then. but why does it say this here with emphasis on the emboldened?

The presence here of children of either the offender or his partner must be taken into account when deciding whether removal is appropriate. Removal will not normally be carried out where there are minor dependent children in the family who have been living in the UK continuously for seven or more years. (DP5/96 refers). Establish the following and report to the relevant casework section:
♦ the children's age;
♦ ties with the natural parent; how often the children see their natural parent; whether any maintenance is paid towards the children's upkeep;
♦ whether the children could easily adapt to a life abroad; whether such a move would cause hardship or put their health at risk;
♦ whether the children have the right of abode; the nationality of the children.
The above factors are balanced against the parents' immigration history and any criminal record.
Cases involving children who are British or have the right of abode here require the authority of a senior caseworker in the relevant casework sectionfor removal.

However i'll follow your suggestion and produce all that I have and just pray.

Also, some of my documents are in my maiden name like my council tax bills as its been before I got married. Do you think I should produce this?

Thanks for all your help. I'm truly grateful. Immensely grateful.

[Twin]

If you have lived here more than 10 years, I thought you could apply on your own...

Global gypsy, this only applies to individuals who have lived in the country legally for that period. I'm unfortunately an overstayer.

[Jeff Albright]

Twin,

I found some good news for you now from case law in FM (FGM) Sudan CG [2007] UKAIT00060.

[quote]
In MA (Seven Year Child Concession) Pakistan [2005] UKIAT 00090, the IAT set out the terms of Policy DP5/96 as follows:-

“Deportation in cases where there are children with long residence: Policy Modification announced by Under-Secretary of State for the Home Department Mr O’Brien on 24 February 1999.

3.1 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not usually proceed with enforcement action in cases where a child was born here and has lived here continuously to the age of [7] or over, or where, having come to the United Kingdom at an early age, they have accumulated [seven] years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all the cases, the following factors are relevant in reaching a judgment on whether enforcement action should proceed:

- The length of the parents’ residence without leave; whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;

- The age of the children;

- Whether the children were conceived at a time when either of the parents had leave to remain;

- Whether return to the parents’ country of origin would cause extreme hardship for the children or put their health seriously at risk.

- Whether either of the parents has a history of criminal behaviour or deception.

3.2 It is important that full reasons are given for making clear that each case is considered on its individual merits.â€

[Twin]

Jeff, with a risk of sounding patronising, I have to say you are indeed a blessing to this forum. Thank you! Thank you!! Thank you so much! I haven't slept for 3 days! Being on the internet searching for information, a way out of my predicament.

To be honest, I was hoping that the HO would reply sometime early next year when my daughter would have been 7 and in which case the HO might have found it difficult to refuse me but still i'm grateful for little mercies.

As it stands now, say the impossible happens and my application is granted, i understand that I only get two years spousal visa, is that correct? If so, what happens after the two years when I need to apply for ilr? Would I have to approach my husband again? wouldn't that meant going back to square one?

okay, say I get a refusal (i'm hoping this would not be the case but i'm preparing for all eventualities) and I decide to appeal, how long would this take? As I said my daughter turns 7 in 6 months. Should the appeal take long and drags into 2008, would this be taken into consideration or would I just get a DLR if successful? I'd rather wait till my daughter turns 7 but I guess the HO are aware that I might want to use this avenue hence their correspondence before Jan. For goodness sake they waited 3 years and a month!

[global gypsy]

If you have lived here more than 10 years, I thought you could apply on your own...

Global gypsy, this only applies to individuals who have lived in the country legally for that period. I'm unfortunately an overstayer.

Twin, could you use 14 years stay basis then? This applies even for unlawful stay...
http://www.ukimmigration.com/long_residence

[Jeff Albright]

Jeff, with a risk of sounding patronising, I have to say you are indeed a blessing to this forum. Thank you! Thank you!! Thank you so much! I haven't slept for 3 days! Being on the internet searching for information, a way out of my predicament.

You are very very welcome, Twin. We are here to help and will always do and will not charge you a penny

To be honest, I was hoping that the HO would reply sometime early next year when my daughter would have been 7.

Actually, because you got a reply, your file is now with a caseworker and therefore can be decided within weeks. Delays occur when files are in work queues awaiting to be allocated to the caseworkers that have expertise in dealing with particular type of cases. Home Office's resources are very limited when it comes to dealing with old cases where any period of illegal residence is concerned.

As it stands now, say the impossible happens and my application is granted, i understand that I only get two years spousal visa, is that correct?

No, you will never get any leave to remain under the Rules, because you do not qualify under the Rules. If you are successful under the DP3/96 or DP5/96 or Human Rights you will get 3 year discretionary leave to remain, which is called LOTR, Leave Outside the Rules. You will be able to apply for an extension after your 3 years are up and after you have completed 6 years in total on DL, you will be eligible for ILR. No you won't go to square one, because you have your daughter here and those circumstances will be assessed at the time.

okay, say I get a refusal (i'm hoping this would not be the case but i'm preparing for all eventualities) and I decide to appeal, how long would this take?

You will have to appeal within 10 working days and your appeal will normally be heard within a month after that.

As I said my daughter turns 7 in 6 months. Should the appeal take long and drags into 2008, would this be taken into consideration or would I just get a DLR if successful? I'd rather wait till my daughter turns 7 but I guess the HO are aware that I might want to use this avenue hence their correspondence before Jan. For goodness sake they waited 3 years and a month!

Don't worry too much about this at the moment. Once your daughter turns 7 you will always be able to bring additional grounds to the Home Office or the judge.

[Jeff Albright]

Twin, could you use 14 years stay basis then? This applies even for unlawful stay...
http://www.ukimmigration.com/long_residence

No, I am afraid she cannot because there is an application already pending, which will either result in a refusal and an enforcement action or a grant of leave. In any event, the clocks stopped when the application was submitted to the Home Office.

[Twin]

No, you will never get any leave to remain under the Rules, because you do not qualify under the Rules. If you are successful under the DP3/96 or DP5/96 or Human Rights you will get 3 year discretionary leave to remain, which is called LOTR, Leave Outside the Rules. You will be able to apply for an extension after your 3 years are up and after you have completed 6 years in total on DL, you will be eligible for ILR. No you won't go to square one, because you have your daughter here and those circumstances will be assessed at the time.

So, if I understand you correctly; you are saying that in any case; be it seven years rule or marriage or human rights, I wouldn't have gotten an Ilr outright? Did this change occur after 2002 as I know that my aunty obtained her ilr outrightly based on the 7 year rule.

I'm learning more every day and so happy i found this forum.

Don't worry too much about this at the moment. Once your daughter turns 7 you will always be able to bring additional grounds to the Home Office or the judge

with regard to your comment above, my little understanding of the DLR is that once issued, you cannot switch to a different visa? I thought you'd have to stick out the 3 years in any situation?

[Twin]

If you have lived here more than 10 years, I thought you could apply on your own...

Global gypsy, this only applies to individuals who have lived in the country legally for that period. I'm unfortunately an overstayer.

Twin, could you use 14 years stay basis then? This applies even for unlawful stay...
http://www.ukimmigration.com/long_residence

Global gypsy, that is very thoughtful of you but yet again, I haven't been here for 14 years yet.

[Twin]

one more thing, Jeff.

I noticed that on the HO's letter, the subject was Indefinit Leave to Remain. so, i'm assuming that had everything been straight forward ie my husband cooperating, it's likely that they would have granted an ILR or...am I being optimistic?

[Jeff Albright]

So, if I understand you correctly; you are saying that in any case; be it seven years rule or marriage or human rights, I wouldn't have gotten an Ilr outright? Did this change occur after 2002 as I know that my aunty obtained her ilr outrightly based on the 7 year rule.

In my knowledge, this all has now been changed. It is very rare when ILR is granted outside the Rules outright. DP3 and DP5 come under Human Rights and if successful, DL will be granted. Even asylum seekers are rarely granted ILR straight away now (only in exceptional circumstances).

with regard to your comment above, my little understanding of the DLR is that once issued, you cannot switch to a different visa? I thought you'd have to stick out the 3 years in any situation?

DL is granted only if you do not qualify under any other standard Rules. However, it does not mean that you cannot obtain other leave at a later date if you wish. It is not guaranteed that your DL will be extended so it is open for you to apply under the Rules in the future if you qualify. However, it does not make much sense because while being on DL you are getting more benefits than on any other category under the Immigration Rules. In your situation, because you have a child being a British Citizen and you are in close relationship with her, I see no reason why your extension of DL should not be granted.

[Jeff Albright]

one more thing, Jeff.
I noticed that on the HO's letter, the subject was Indefinit Leave to Remain. so, i'm assuming that had everything been straight forward ie my husband cooperating, it's likely that they would have granted an ILR or...am I being optimistic?

This reflects the type of the application you had made but does not mean that exactly this status will be granted. If your solicitor applied for ILR for you, the Home Office will echo it in their letters, however, the status will be granted in accordance with the relevant policies.

Your situation in this respect is like mine. My case was delayed for 8 years due to loss of my documents, my passport and my application for further leave to remain in 2000. I had been waiting for 8 years making representations to no avail. There was no response until I forced the issue by making series of complaints starting from 2005. Eventually, I had to make my Human RIghts claim because there was no outstanding application on file due to the Home Office losing it and because I have formed a family while waiting for the BIA to consider my case. I specified that I was applying for Indefinite Leave. I also completed my studies, got a highest degree and a top career job, which amounted to developing private life, which also comes under Article 8. My HR application was refused in October 2006. I appealed against it, represented myself and won the appeal in February this year. The Home Office wrote asking for photographs and my passport and in the subject they stated again "indefinite leave" because this is what was application made originally for, this is what was refused and this is what was being pursued. As a result, I got Discretionary Leave and not Indefinite Leave.

So, unfortunately, BIA no longer grants ILR straight away outisde the Rules. Don't put too much hope on it.