Post
by mastermind72 » Thu Jun 30, 2011 11:58 am
Answer to your questions:
1. Since they are cohibiting each other for the past two years can they apply for the residence card on basis of their civil partnership or relations?
Yes they can, but they will need to provide strong evidence (tenancy agreements in both names, bills in both names at at the same address, bank statements in both names, etc) that cover the full period of 2 years. Please note that, cohabition is not civil partnership, it is just cohabition. Photos, statements from friends that they know them and they are in a lovong relationship are also good evidence, in general they need to provide substansive evidence that they live together and their relationship is genuine.
2. If he don't go back and wait for his marriage to perform, will he be class as over stayer? Does this thing has any impact on his future or application for residence card?
This is a tricky question. If they manage to get married, then prior immigration history bears no effect on the issue of the residence card, i.e. after you are married (provided your relationship is genuine) being an overstayer has no impact on your application for the residence card. Things are a little different for when you are in a durable relationship, i.e. you are not married but cohabiting, UKBA will scrutinise things more and in the past many such cases were rejected on this fact.
Please note that UKBA cannot reject an application SOLELY on poor prior immigration history, but I am sure they will find something else to say when you are not married.
3. Since both are working in UK and non of them is illegal in this country, is this thing help them in their case?
Not really, see my answer above (no.2)
OK here's the suggested strategy I propose for you:
A. Book a date with the local council to arrange for the wedding to happen as soon as possible. Do not worry about the person becoming an overstayer. Getting married in the UK is now independent of immigration status (i.e. as of the 9th of May you can marry regardless of whether you are legal or illegal in this country).
When you call the council you will need to book a date to go and give notice that you intend to get married, and make sure you do this before you send your application (step B below) so that you still have your passports and IDs with you (you will need to send them in step B below to UKBA with your application, and if you do that before you give your notices, it will be difficult to prove who you are at the council when you go to give notice).
B. Immediately gather all the evidence I mentioned above and submit an EEA2 Application as an extended family member (cohabiting for 2 years) to UKBA. Use the new forms and instructions issues on the 20th of June. The fact that you have an application pending will cover you in case, before the wedding day, UKBA realise that one of you is an overstayer and they decide to stop your wedding or enforce some action against the overstayer (relax, nothing major, it will just create unecessary complications). So long as you have the application submitted before you get married, you are covered.
C. Get married, and then send to UKBA, as part of your application, your marriage certificate. From this point, your application is very very strong, as it cannot be refused (unless you are a threat to this country, terrorist, etc or unless you are not genuine, which will be hard to prove as you would have already submitted lots of evidence for your relationship).
Please also note that, regardless what enforcement action UKBA may take against the overstayer (in case they notice that, because also the date they become overstayer is very close to the date of your weddding, but you never know) it will be invalid, because from the moment you are married, your overstayer spouse has immediately rights to reside in this country, live and work and he is free of immigration control.
Of course this is the law, to prove it and to have no problems with working, traveling you will need to wait for UKBA to issue the resident permit to your non-eu spouse.
You can do all that without any cost as the applications are free of feees (you do not need to pay any fees).
If you can afford it, employ a solicitor as it will take some of the administration and communication burden away, but again this is not necessary (unless there are other things which you have not explained which may complicate things).
I strongly advise your friend to look in this website carefully as all of the questions you raise have already been rasied by other people in here. Also look at the UKBA website, as it has quite clear instructions and information.
M._
