Is our defacto visa invalid?

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 2:32 pm

My current girlfriend is in the UK on a Defacto (Unmarried Partner) Visa.

We have been together for just over 5 years.

We are due to apply for our second later this year as our current one runs out in August.

However, a bit of a spanner has been thrown into the works in regard to our future - and just to add fun to the timing, our lease on our house is up in 10 days.

I have two questions.

Firstly, if we were to live apart for the next couple of months before things are (hopefully) resolved - would this stop any chances of us being eligible for another Defacto Visa or Indefinite Leave to Remain.

Secondly, if we were to split up - (and ethics aside here, I want to know legalities) would she have to immediately return to Australia or would that visa still be valid until August?

Thanks for your help.

VictoriaS · Post by **VictoriaS** » Mon Jan 07, 2008 2:49 pm

temporary seperation is fine. permanent is not.

if you split up before she gets ILR she will have to go home, regardless of the expiry date of the visa.

Victoria

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 2:52 pm

So, she couldn't even work/live in the UK till the end of her current Visa?

VictoriaS · Post by **VictoriaS** » Mon Jan 07, 2008 3:22 pm

That's right. if she is no longer your partner, her partner visa is invalid.

Victoria

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 3:25 pm

Thank you very much for your help.

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 3:58 pm

One last question - If her visa is invalid, how immediate does she have to leave the UK?

VictoriaS · Post by **VictoriaS** » Mon Jan 07, 2008 4:03 pm

As soon as practically possible. Certainly not over 28 days.

Victoria

paulp · Post by **paulp** » Mon Jan 07, 2008 4:04 pm

VictoriaS wrote:That's right. if she is no longer your partner, her partner visa is invalid.

Victoria

Hi Victoria, we know that the visa is technically invalid. But in practice, does it involve notifying the home office and curtailment of visa?

VictoriaS · Post by **VictoriaS** » Mon Jan 07, 2008 4:07 pm

There is no legal obligation on the sponsor to notify the Home Office at the moment. There IS a legal obligation for the non EEA nationla to leave. If she gets caught, she'll be in trouble.

Victoria

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 4:11 pm

As in "never allowed to return to the UK" or some sort of fine?

VictoriaS · Post by **VictoriaS** » Mon Jan 07, 2008 4:16 pm

As in possible administrative removal and a very hard time if she ever seeks to return.

Victoria

paulp · Post by **paulp** » Mon Jan 07, 2008 4:18 pm

VictoriaS wrote:There is no legal obligation on the sponsor to notify the Home Office at the moment. There IS a legal obligation for the non EEA nationla to leave. If she gets caught, she'll be in trouble.

Victoria

What I'm asking is whether a curtailment is required to invalidate a visa.

SYH · Post by **SYH** » Mon Jan 07, 2008 4:26 pm

paulp wrote:
VictoriaS wrote:There is no legal obligation on the sponsor to notify the Home Office at the moment. There IS a legal obligation for the non EEA nationla to leave. If she gets caught, she'll be in trouble.

Victoria
What I'm asking is whether a curtailment is required to invalidate a visa.

No it is not.
It can be invalid without curtailment. curtailment formally invalidates it.
In the reverse, there is no affirmative requirement to inform the HO so they can curtail the visa so without curtailment, the visa holder can continue to operate as usual even though they should be on notice that their visa status is precarious.

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 5:44 pm

What if a contract with work requires one months notice, for example?

Mr Rusty · Post by **Mr Rusty** » Mon Jan 07, 2008 6:11 pm

VictoriaS wrote:As in possible administrative removal and a very hard time if she ever seeks to return.

Victoria

No, this person will not be liable to administrative removal.
The offence under S24.i(b) of the 1971 act is failing to observe a condition of leave to enter or remain. However, Chapter 10 of the Operational Enforcement Manual on the BIA website lists those liable to administrative removal under S10(1) of the 1999 Act as (see10.3)
* Overstayers
* Those in breach of employment restrictions
* Those in breach of restrictions to access public funds
* Those who have gained leave to enter or remain by deception
* The spouse or dependant children of a person liable to administrative removal

In practice any immigration officer encountering someone living apart from their spouse or partner might enquire whether they had ever lived together, i.e. was the leave gained by deception. He/she might also submit a report which might in due course be considered by a caseworker for curtailment, although whether they would get around to doing it before the leave expired is questionable.
No IO would bother asking for authority to detain or remove somebody solely on these grounds.

So my advice to the OP is that she can remain here until her leave expires if she chooses. However, she should expect any gaps in the relationship to be taken into account in any further application

Walthamstow · Post by **Walthamstow** » Mon Jan 07, 2008 6:19 pm

Mr Rusty wrote: The offence under S24.i(b) of the 1971 act is failing to observe a condition of leave to enter or remain. However, Chapter 10 of the Operational Enforcement Manual on the BIA website lists those liable to administrative removal under S10(1) of the 1999 Act as (see10.3)

* Those who have gained leave to enter or remain by deception

VictoriaS · Post by **VictoriaS** » Mon Jan 07, 2008 7:50 pm

I disagree entirely. To remain in the UK on any dependent visa once that relationship has ended IS deception.

Victoria

Mr Rusty · Post by **Mr Rusty** » Tue Jan 08, 2008 9:29 am

I apologise for my inaccurate rendering of the Operational Enforcement Manual, which I am now able to cut and paste as under:
10.3 Categories of those liable to administrative removal

â€¢ Overstayers

â€¢ Those in breach of employment restrictions

â€¢ Those in breach of restrictions to access to public funds

â€¢ Those who have obtained leave to remain by deception

â€¢ Spouse of a person liable to administrative removal

â€¢ Dependent children aged under 18 of a person liable to administrative removal

It was nonsense to say gaining leave to enter by deception falls under these offences - that is a form of illegal entry.

The fact remains however that in practice, unless someone's leave is curtailed (in which case they would have a right of appeal), if they remain they commit no offence which is subject to enforcement action.

Feel free to disagree, but that's what the OEM says.

Walthamstow · Post by **Walthamstow** » Tue Jan 08, 2008 9:47 am

Ok, worst case scenario.

We split. The Defacto visa is invalid.

Legally, is she allowed to work until she leaves the country?
What about notice periods?

Mr Rusty · Post by **Mr Rusty** » Tue Jan 08, 2008 10:44 am

"The Defacto visa is invalid"

The only mechanism by which this can happen is curtailment by a BIA caseworker. Unless/until this happens, she retains the rights conferred on her by the visa, right to stay, right to work, whatever. Unless an immigration officer proves that she got the visa by deception, i.e. she never intended to stay with you as your partner and it was all a scam to secure residence in this country (and the onus of proof is on the IO), she isn't committing any offence for which she can be arrested and subjected to enforcement action.

However, remaining for a substantial period when her circumstances have changed are likely to render any further application subject to close scrutiny, and obviously if she doesn't declare the separation and is then granted a visa or leave to remain she may be accused of deception if it comes to light, and would then be an offender.

Mr Rusty · Post by **Mr Rusty** » Tue Jan 08, 2008 10:57 am

I should also add that if she travels abroad and then seeks to return on the same visa before it expires, the Immigration Officer at the port of entry could cancel the visa if he was aware that her circumstances had changed. If she failed to declare it at that time, a case could be made that she had committed an offence.

Walthamstow · Post by **Walthamstow** » Tue Jan 08, 2008 12:10 pm

That doesn't really answer the question. You've just picked up on the statement before.

Technically, if we split - the visa would be invalid, regardless of IO chasing her. It is invalid.

So, let me gve a tighter example.

We split. The IO know this. They contact her and tell her that as her visa is now invalid she must leave the country.
She has a contract with work which says she must give - lets say - 6 weeks notice.

Would she be allowed to work that 6 weeks?

Would she need to immediately stop working and then leave at the earliest opportunity?

Wanderer · Post by **Wanderer** » Tue Jan 08, 2008 12:17 pm

Walthamstow wrote:That doesn't really answer the question. You've just picked up on the statement before.

Technically, if we split - the visa would be invalid, regardless of IO chasing her. It is invalid.

So, let me gve a tighter example.

We split. The IO know this. They contact her and tell her that as her visa is now invalid she must leave the country.
She has a contract with work which says she must give - lets say - 6 weeks notice.

Would she be allowed to work that 6 weeks?

Would she need to immediately stop working and then leave at the earliest opportunity?

I'd say she'd have to leave immediately. The HO won't care about employment obligations.

paulp · Post by **paulp** » Tue Jan 08, 2008 12:21 pm

If her visa is curtailed, she may be given the standard 28 days to appeal or leave the country. Her right to work will probably also cease straightaway.

Mr Rusty · Post by **Mr Rusty** » Tue Jan 08, 2008 12:25 pm

paulp wrote:If her visa is curtailed, she may be given the standard 28 days to appeal or leave the country. Her right to work will probably also cease straightaway.

Agreed.
And if it's not curtailed, she can stay until it expires.

Sounds like you intend to put the skids under her.....

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Is our defacto visa invalid?

Is our defacto visa invalid?