New 'blacklist' periods for overstayers

[Twin]

Home office are not stupid. They are aware that these new changes breach article 8 and that the AIT will be swamped with appeals once this comes into effect so I won't be suprised if they are in the process of circumventing appeals too.

They sure must be putting wheels in motion to take away appeal rights.

Does anyone know how once can appeal to the European courts? I think people should be thinking about this avenue from now.

[thsths]

Home office are not stupid. They are aware that these new changes breach article 8 and that the AIT will be swamped with appeals once this comes into effect so I won't be suprised if they are in the process of circumventing appeals too.

So you are saying that the Home Office is not just pushing a certain agenda, but they are actually behaving like criminals in full knowledge of illegality? I don't know whether I would subscribe to that, so far I just think that the rules look stupid as they are. We will see.

Does anyone know how once can appeal to the European courts? I think people should be thinking about this avenue from now.

That is a good question. I found the statement that you must use the available national recourse before appealing to the ECHR. So not giving the right of appeal in the UK would obviously counter-productive here. So indeed you may be right that the AIT will just be overwhelmed with cases. The question is how long you have to wait before it becomes clear that the national appeal is not feasible? I cannot see the ECHR take cases directly from average Joe in a (supposedly) first world country, but what do I know.

Tom

[Twin]

So you are saying that the Home Office is not just pushing a certain agenda, but they are actually behaving like criminals in full knowledge of illegality? I don't know whether I would subscribe to that, so far I just think that the rules look stupid as they are. We will see.

Really, i'm just frustrated. I'm trying to find out the rationale behind this and I can only assume that for the HO to have come up with these changes, they would have at least covered some loop holes. I mean, why would they make rules that does not comply with a convention they are signed to when knowing that these rules can be made useless in court?

I'm still trying to make sense and in my panic state I came up with my own theories.

That is a good question. I found the statement that you must use the available national recourse before appealing to the ECHR. So not giving the right of appeal in the UK would obviously counter-productive here. So indeed you may be right that the AIT will just be overwhelmed with cases. The question is how long you have to wait before it becomes clear that the national appeal is not feasible? I cannot see the ECHR take cases directly from average Joe in a (supposedly) first world country, but what do I know.

Well...if not from an average Joe in first world country, surely they would take one from and Average Abdulla from a third world country, surely... http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

[Twin]

thsths, what I actually meant by circumventing appeals was that they could take away certain appeal rights??? Non?

Okay, maybe they can't take away Human Rights appeals so these cases will eventually get to court one way or the other.

I'm not an immigration expert, just someone who has had to do her own research after being disappointed by advises by some immigration advisors.

[thelastman]

Absolutely not fair. Please consider this situation;
If an illegal entrant was thinking of leaving voluntarily at his own expence but for the purpose of applying at the home country for Entry clearance as spouse of a UK citizen. Does the ban still apply. the ban seems it can be anything from 1-5 years depending how lucky you are when leaving. might have to leave illegally as well so as to not leave any record. will they expect me to live at least a year without my partner? ( not gonna happen)
seem its better to stay for two more years and apply for a 14 years rule.
In a way they are encouraging rule breakers to stay and avoid trying to document themseves. Are they not suppose to be encouraging people to become legal so they know who is in the country, not force them into hiding by this harsh punishments.
Please reply.....

Maybe, just maybe (please I emphasise on "maybe" as I don't want some of the gurus to scold me for giving wrong advise), if you return home on a Travel Certificate, you could return after a year. I guess if you don't have a passport then the Immigration officer cannot serve you a removal notice on a TC (or can he?).

Either way, remove the thought of being back in less than a year from your mind. Except of course you're not going to claim having met your wife/fiancee in the UK which I wouldn't advise as you're likely to be caught in a lie and that would be a 10 years ban if caught for deception.

I think right now, you're lucky as you haven't had any form of removal notice served on you. If you manage to leave Heathrow without any hiccups then even better.

Good Luck.

So you mean having met your fiancee in the UK will be detrimental to your application. I can't lie about that cause i still need to show we have lived together for two years! I didn't READ ANYTHING ABOUT YOU MEETING YOUR PARTNER WHILE UNDOCUMENTED BEING A FACTOR FOR CONSIDERATION.
Would my fiancee have to stay away with me or she can stay in the UK during the application. I have no removal notice because i have bee here since 15 years old and a bit in the system and don't get in trouble with the police. So it seems i might have to live in limbo for another two years (really 14 months plus waiting time for application)

[thelastman]

Absolutely not fair. Please consider this situation;
If an illegal entrant was thinking of leaving voluntarily at his own expence but for the purpose of applying at the home country for Entry clearance as spouse of a UK citizen. Does the ban still apply. the ban seems it can be anything from 1-5 years depending how lucky you are when leaving. might have to leave illegally as well so as to not leave any record. will they expect me to live at least a year without my partner? ( not gonna happen)
seem its better to stay for two more years and apply for a 14 years rule.
In a way they are encouraging rule breakers to stay and avoid trying to document themseves. Are they not suppose to be encouraging people to become legal so they know who is in the country, not force them into hiding by this harsh punishments.
Please reply.....

If you have two more years to meet the 14 years rule why then are you considering returning home? Is it because you wouldn't be able to work or get on with life? I know the feeling. Ideally, it would have been most appropriate to return home and apply for entry clearance as this shouldn't take more than 6 months but giving this new changes, one isn't so sure.

If you stay for the 14 years rule (Let's hope they don't change the conditions of that or remove it totally) you could be looking at up to 3 yrs or more to become legalised.

If you return home, you could be affected by the 1 year ban which if lets face it, could be the amount of time you could be home even without the ban. Why? There is no guarantee that your application would have succeeded without a ban (lets say you don't meet all the requirements), so if you make an appeal you'd be waiting some 7 months before hearing so effectively, with or without a ban you could be home for a year anyway.

It's your choice.

I hope I haven't confused you even further.

I'm sure the gurus will be able to advise further or correct me where i'm wrong.

Yes i was going to return home because I'm getting tired of living in Limbo. Its not a very nice Town. rough neighbourhood lol.
Why do you think the application might not succeed initially, is there precedence for this. i was hoping the entry clearance application only takes a month or two. My Fiancee can only afford to take a month of work so can i be the only one to travel?
Is it a fact that having lived in the UK illegally will count against the application?
Is it for definate that this new law will pass. What are the probabilities?
How long on average does a fiancee entry clearance take?
What if i go before the 1st of April will i be excluded from the rule?
This questions are not for you only in case you can't answer them all.
Thanks.......

[Wanderer]

IMHO the new draconian rules might have been introduced with a bit of a proviso, basically, say give till June 2008 to return home and regularise ur stay and apply under normal rules if u qualify.

If not, and choose to stay, the penalties apply if caught.

In the case of children I'd have introduced special rules, no child should be denied access to their parents and vice-versa. Haven;t worked out those rules yet...

Also the 'built a family life' situation should be respected, maybe even the HO could do a cost/benefit on each person, better than just chucking them out....

Just me thinking....

[Twin]

Absolutely not fair. Please consider this situation;
If an illegal entrant was thinking of leaving voluntarily at his own expence but for the purpose of applying at the home country for Entry clearance as spouse of a UK citizen. Does the ban still apply. the ban seems it can be anything from 1-5 years depending how lucky you are when leaving. might have to leave illegally as well so as to not leave any record. will they expect me to live at least a year without my partner? ( not gonna happen)
seem its better to stay for two more years and apply for a 14 years rule.
In a way they are encouraging rule breakers to stay and avoid trying to document themseves. Are they not suppose to be encouraging people to become legal so they know who is in the country, not force them into hiding by this harsh punishments.
Please reply.....

Maybe, just maybe (please I emphasise on "maybe" as I don't want some of the gurus to scold me for giving wrong advise), if you return home on a Travel Certificate, you could return after a year. I guess if you don't have a passport then the Immigration officer cannot serve you a removal notice on a TC (or can he?).

Either way, remove the thought of being back in less than a year from your mind. Except of course you're not going to claim having met your wife/fiancee in the UK which I wouldn't advise as you're likely to be caught in a lie and that would be a 10 years ban if caught for deception.

I think right now, you're lucky as you haven't had any form of removal notice served on you. If you manage to leave Heathrow without any hiccups then even better.

Good Luck.

So you mean having met your fiancee in the UK will be detrimental to your application. I can't lie about that cause i still need to show we have lived together for two years! I didn't READ ANYTHING ABOUT YOU MEETING YOUR PARTNER WHILE UNDOCUMENTED BEING A FACTOR FOR CONSIDERATION.
Would my fiancee have to stay away with me or she can stay in the UK during the application. I have no removal notice because i have bee here since 15 years old and a bit in the system and don't get in trouble with the police. So it seems i might have to live in limbo for another two years (really 14 months plus waiting time for application)

Absolutely not! Admitting meeting your spouse in the UK and having cohabited for 2 or more years should normally work in your favour. I only pointed not mentioning it if you were looking to be absolved from the ban. I mean the only way you will not be affected by the ban is if you say you met your spouse in your country and have never travelled to the UK (but you don't wanna do that).

Now, my opinion of the 14 years rule is that it might not be around for long. Why? Well...this new changes in paragraph 320 will affect leave to remain applications in the UK also. So, you see, I don't know how this silly rule is going to work. I mean, if they are looking to punish people for overstaying, then they wouldn't be providing an avenue for them to be legal (you get my drift?) The 14 year rule and other concession makes a mockery of this changes.

I doubt that your fiancee needs to be with you throughout the duration of the application. You could return home, file the application and she could come to support you for your interview and return home immediately after. As a matter of fact, she could support the application from here without leaving. I just think it might be better if she at least turn up for the interview.

The fact that you have never made an application works in your favour as you've never had a removal notice issued against you. However, if you decide to return home, be mindful that you could be issued a removal notice at departure and this could automatically place you on the 10 years ban as i've just learnt today.

It's a tricky situation, i know. It's a damn if I do and damn if I don't case. Either way, a decision has to be made. Return home, stay for a year (hopefully) or see the 14 years through.

[Twin]

Absolutely not fair. Please consider this situation;
If an illegal entrant was thinking of leaving voluntarily at his own expence but for the purpose of applying at the home country for Entry clearance as spouse of a UK citizen. Does the ban still apply. the ban seems it can be anything from 1-5 years depending how lucky you are when leaving. might have to leave illegally as well so as to not leave any record. will they expect me to live at least a year without my partner? ( not gonna happen)
seem its better to stay for two more years and apply for a 14 years rule.
In a way they are encouraging rule breakers to stay and avoid trying to document themseves. Are they not suppose to be encouraging people to become legal so they know who is in the country, not force them into hiding by this harsh punishments.
Please reply.....

If you have two more years to meet the 14 years rule why then are you considering returning home? Is it because you wouldn't be able to work or get on with life? I know the feeling. Ideally, it would have been most appropriate to return home and apply for entry clearance as this shouldn't take more than 6 months but giving this new changes, one isn't so sure.

If you stay for the 14 years rule (Let's hope they don't change the conditions of that or remove it totally) you could be looking at up to 3 yrs or more to become legalised.

If you return home, you could be affected by the 1 year ban which if lets face it, could be the amount of time you could be home even without the ban. Why? There is no guarantee that your application would have succeeded without a ban (lets say you don't meet all the requirements), so if you make an appeal you'd be waiting some 7 months before hearing so effectively, with or without a ban you could be home for a year anyway.

It's your choice.

I hope I haven't confused you even further.

I'm sure the gurus will be able to advise further or correct me where i'm wrong.

Yes i was going to return home because I'm getting tired of living in Limbo. Its not a very nice Town. rough neighbourhood lol.
Why do you think the application might not succeed initially, is there precedence for this. i was hoping the entry clearance application only takes a month or two. My Fiancee can only afford to take a month of work so can i be the only one to travel?
Is it a fact that having lived in the UK illegally will count against the application?
Is it for definate that this new law will pass. What are the probabilities?
How long on average does a fiancee entry clearance take?
What if i go before the 1st of April will i be excluded from the rule?
This questions are not for you only in case you can't answer them all.
Thanks.......

Even without the new changes, you could have been refused on the general grounds for refusal basis ie overstaying, anyway. However, because it is now mandatory for an overstayer or illegal entrant to be refused, you are guaranteed a 1 year ban. However, as Victoria pointed out somewhere, if it's just a year ban, then it might not be so bad as you know that once you serve this ban, it can no longer be used as a basis for refusing your application whereas before, it could be used indefinitely.

Aside the general grounds for refusal, the HO might not be satisfied that your relationship is genuine (well, we have read of cases where despite a couple providing overwhelming evidence, the ECO has gone ahead and refused).

With that said, we have also read of cases where someone had been removed; they made an application the very next day and they were granted leave to enter. It didn't even take a month!

Basically, entry clearance is not so cut and dried but i'm sure the consensus is that once you meet the requirements, you are granted, anyway and I also share this school of thought but this new rule has basically thrown all that confidence in the gutter.

To answer your questions specifically:
Yes, previous overstay or illegal entry will have adverse effect on every entry clearance application (at least that's what the changes states)

Yes, I think it's definite.

I can't be specific on the length of time an EC takes. It varies from country to country. With Nigeria being the most populous black nation, I wouldn't think it will be one of the quickest. It might be best to check with the consulate, direct. Abuja tends to be quicker.

I know that a few people have advised people on here to return and apply before the 1st of April but you have to bear in mind that you might not be called for an interview until after the 1st of April. Whether the ECO will use the old rule as in when you applied, I don't know.

I hope i've been of little assistance but nevermind, there are lot of well versed people here who will help.

[thelastman]

Thanks you have been of great help. I have been getting a much better picture of my circumstance now that i have been to this forum. so thanks again.

[sally12345]

The bad news is...this has been addressed...and BIA have said that those given removal notices whilst they are about to leave voluntarily are still stuffed for 10 years like everyone else...

...sorry guys.


Victoria

Probably the worst news of my life!

How did they explain those who leave voluntarily on public funds, then? Does it mean that those didn't leave after 28 and calls the HO for assistance to leave only gets 5 years? Is it really possible for the HO to pay their air fare and not issue them with a removal notice?

Very confusing!

sorry Victoria, then why do they even mention the 1 year ban! are they doing this as they dont want to be seen as unjust? I dont get this one bit we want to leave but how? whats the point on leaving we are going to be hit with a 10year ban now.. it makes no sense at all

[olisun]

The bad news is...this has been addressed...and BIA have said that those given removal notices whilst they are about to leave voluntarily are still stuffed for 10 years like everyone else...

...sorry guys.


Victoria

Probably the worst news of my life!

How did they explain those who leave voluntarily on public funds, then? Does it mean that those didn't leave after 28 and calls the HO for assistance to leave only gets 5 years? Is it really possible for the HO to pay their air fare and not issue them with a removal notice?

Very confusing!

sorry Victoria, then why do they even mention the 1 year ban! are they doing this as they dont want to be seen as unjust? I dont get this one bit we want to leave but how? whats the point on leaving we are going to be hit with a 10year ban now.. it makes no sense at all

It's probably a warning for all those you plan to overstay in the future...

[paulp]

The question here is how can an overstayer, willing to leave by their own means, ensure they only get a year ban? Does it involve contacting the home office to get on one of their assisted removal programmes?

[olisun]

The question here is how can an overstayer, willing to leave by their own means, ensure they only get a year ban? Does it involve contacting the home office to get on one of their assisted removal programmes?

It's difficult... Some people will try to overstay with the assumption that they will be banned only for 1yr for the first time they are caught...

[aa123]

Are the rules going to be applied to appeals that are pending, if the hearing is after April 2008.

[Twin]

Question for the Gurus, please.

Since this Statement of Changes isn't statute, does it make it unlawful? Afterall, it wasn't passed by the parliament. Then again, if it can be slipped into the rules then I guess it makes it statute? And when it is slipped in, it actually stops it from being just a statement but in fact a law??

Can this really be made a law without the signet from the Parliament?

It would be good to see how Immigration Judges decide cases that would arise under this changes.

[Twin]

Okay, so the HO has something called Statutory Instrument as someone earlier stated in the thread. They have secondary legislation power so this is in fact lawful.

What a bummer!!

[Twin]

What interests me particularly is the category of 'Persons Exercising Rights to a child Resident In the UK' where a court order states clearly that you have residence order which can only be exercised in the UK. Would the ECO just say: "surd it! You overstayed so you lose your right to be with your child, so I don't care about no court order"?

That is a BRILLIANT point. I am going to see if I can get a response.


Victoria

Victoria, any news on this, please?

[aaa123]

so if any overstayer is applying for out of country visa ......how the out of country visa issuing authorities are going to find this out that a person overstayed for some extra days (say a couple of weeks or so) after end of 28 days period..........

as i take that out-of-coutry visa issuing authorities will be the ones most conerned about this rather than HOME OFFICE themselves.........

[Twin]

so if any overstayer is applying for out of country visa ......how the out of country visa issuing authorities are going to find this out that a person overstayed for some extra days (say a couple of weeks or so) after end of 28 days period..........

as i take that out-of-coutry visa issuing authorities will be the ones most conerned about this rather than HOME OFFICE themselves.........

I guess they would only find out if they had to check the person's immigration history to see if they'd previously made an unsuccesful application whilst in the UK or if their passport was stamped on exit.

[paulp]

They can also find out by the next entry stamp into another country.

[a12345]

Generally the advice here to overstayers is to leave asap and apply from their home country in order to regularise their immigration position, but people should be aware that amongst the 6 February 2008 statement of changes to the Immigration Rules the government are slipping in the below:

7.25. Applicants who have been refused entry clearance after having used deception in their applications will have any future applications they make refused for ten years. Other immigration offenders (other than those who overstayed for 28 or fewer days and left at their own expense) will be refused for the following periods: One year if, following their breach, they left the UK voluntarily at their own expense;
Five years if, following their breach, they left the UK voluntarily at public expense; and
Ten years if they were removed or deported from the UK following their breach.

http://www.bia.homeoffice.gov.uk/siteco ... iew=Binary

how much are those few days ......a week and a half (with some noce reasons in hand)

[paulp]

They mean fewer than 28 days.

[William Blake]

Are the rules going to be applied to appeals that are pending, if the hearing is after April 2008.

Yes what about this?

In my case my application for ILR was refused and subsequently my student visa expired. I wasn't given any appeal rights and am going to apply for a Judicial Review with the hope of switching to a work permit by leaving and seeking entry clearance to return from abroad. Strictly speaking I will be an overstayer when I leave and seek re-entry. So would this bar apply to me and others in my case. If I took the high court letter with me when leaving would that help?

Is this then grounds to seek discretionary leave to remain as a work permit holder from within the UK. On the grounds that 1) I have a legal matter pending and can be called to court at anytime 2) I can not practically leave as you will not let me back in to see to the legal matter

[Twin]

I've read about those who get removal orders at the airport. How about those who were advised to seek entry clearance after their application was refused and thereby was issued IS151. Do they get a 10 year ban also?