Help Please Overstayed with kids born in the uk

[egw]

Hi

My husband and I realized I actually need a visa to stay here after I tried to apply for a job, so we now need to sort it all out and get legal.

My situation is that I’m a US citizen married a Brit and moved to England about 4 years ago. No one said anything to us at the airport about needing a visa. My husband is disabled and is on benefits for his disabilities. The local GP took me on without asking about my status, that’s when I found out I was pregnant. We live in a council house, and we had informed the local council that he is now married and expecting a child. They never asked for anything in regards to my status only asked us to sign a statement saying I had no income. My name is on the property as a resident just not as a joint tenant etc.
My husband and I had returned to the states to stay goodbye to friends and to collect and arrange shipping of the rest of my belongings, I was 7 months pregnant at the time. Upon returning to the UK, we again entered customs, I walked towards the non EU side, when a customs lady from the Brit Desk asked my husband if we were together and he said yes we were married and she told him that I could go through with him as we were married and dealt with us there, apart from some idle chit chat about when I was due, she said nothing about a visa. If I had known I needed a visa I would have done it when I was in the states.
Since then we have had another child. So currently, I have apparently over stayed 2 or 3 times, my husband gets benefits, my children are now 14months and 3 years and are British citizens, I claim no money from the UK in any shape or form. I have some savings but not much left now, hence why I was trying to get some form of employment. I have nothing left in the states anymore, no family ties, no home, no employment etc.
I’m just scared to death of being deported now, I know my husband can’t cope with the kids on his own for any length of time, as his condition as deteriorated over the past year, and the thought of being apart from my children and husband is too much to bear.
I’m going to see a Lawyer next month about this all, I just would like other opinions as well, as it’s a 50/50 chance that the lawyer will just tell me what we want to hear just to get paid rather than what is fact and reality. Any help or advice would be appreciated.
Regards
E

[thsths]

Since then we have had another child. So currently, I have apparently over stayed 2 or 3 times, my husband gets benefits, my children are now 14months and 3 years and are British citizens, I claim no money from the UK in any shape or form.

Your main problem is that the Home Office just announced a new "procedure" that will automatically blacklist over-stayers for a year. Even though this is an obvious violation of basic human rights, there seems to be little discrimination in applying these rules. Funny that they are applied even before they are effective, too.

Your two options are going back to the US and potentially facing blacklisting, or applying in country, which could take years and still end in a refusal. So there is no way that you can work any time soon.

If I were you (and I am not a lawyer), I would make the in country application. Your argument would be that you have a right for family union, and because of the disabilities of your husband you cannot live in the US. You will probably have to go to court over this issue, but I imagine you have a fair chance of success.

I’m going to see a Lawyer next month about this all, I just would like other opinions as well, as it’s a 50/50 chance that the lawyer will just tell me what we want to hear just to get paid rather than what is fact and reality.

Yes, so listen closely and check this forum, it gives you a good overview of what is going on. And you do not need the lawyer to write all the documents for your, which is expensive, and you can probably do that yourself. But you do need a thorough consultation, so you can decide on a course of action.

If you are in doubt, there are also immigration solicitors on this forum that you can go to.

[egw]

Just wondering if i went back to the states, i am still registered at an address there, thats where my passport and ID say i reside at, could i possibly apply for Visa from there, without anyone knowing i have over stayed?

I'm very confused on what to do, i just want don't want to loose my kids for a year? or more.

And a question about my husband being on benefits, would that make a difference to the application?

[jei2]

Hi egw

Sorry to hear about your problems. No doubt other contributors will fill in any advice I've omitted but your lawyer should be looking at/advising you as per the following:

1. The amendments relating to treatment of breaches by overstayers won't come into practice before the 1 April 2008. So you have 2 basic options:

2. Get back to the US for your entry clearance application for re-entry to the UK as a spouse. You will need to meet the criteria of the immigration rules Para 281. Try to provide (in a nice organised file) documents such as utility bills, official corespondence, children's documents (birth certs, copies of British passports - also husband's), health, nursery or school letters, etc) in either joint names or to both of you at the same address. An explanatory letter from yourself or your legal representative explaining how the overstaying occurred will also assist. Have a letter of support from your husband.

3. Remain in the UK and apply under DP3/96 the concesssion for overstayers who have been married to a British or legally settled person for at least 2 years before this comes to the notice of the Home Office. You need to provide the same as above. Letters from friends, family and officials etc who can vouch for the validity of your marriage will help. Also useful are miscellaneous items such as cards (Christmas, Birthday, Valentines). Emphasise your husband's disability and why it would be difficult to leave him eg the state might have to assist him.

In either case and given your husband's disability, you will need to show that you will be able to work so any written offers of employment would be good.

As stated this is a rough outline. I don't imagine that you will have too many difficulties; you appear to fall into a category that wouldn't normally be questionned too much about your immigration status. Good luck!

[sakura]

Just wondering if i went back to the states, i am still registered at an address there, thats where my passport and ID say i reside at, could i possibly apply for Visa from there, without anyone knowing i have over stayed?

I'm very confused on what to do, i just want don't want to loose my kids for a year? or more.

And a question about my husband being on benefits, would that make a difference to the application?

Firstly, you MUST tell the truth about your overstay - if you get caught out you just land yourself in more trouble. If they ask you about this, tell them. There's no use lying about it - e.g. if they know your kids were born in the UK they'd obviously assume you were in the UK at some point.

Just to find out - did you not know anything about spouse visas/immigration visas at all? The immigration officers should have known, but maybe because you are a US national and thus do not need a visa to enter the UK, they did not check things properly. Either way, it's a lesson for everyone to check embassy/high commission websites before migrating and never assume anything can be done in-country.

As for regularising - it can be done in-country, because of your husband's illness, so you can apply under exceptional circumstances, for a spouse visa.. The question is simply how long it would take for it to be decided. I doubt the Home Office will say to you "it will be decided in 4 weeks' time", so it could take a long while, during which time you still probably won't be able to work.

Read this post: http://www.immigrationboards.com/viewto ... a+overstay

and maybe this one: http://www.immigrationboards.com/viewto ... a+overstay

Generally, people are required to go home and apply from their country of origin. The problem with applying from the US is that your husband isn't working and so cannot prove that he can support you without public funds (I assume he is on disability allowance, or at least has a council house as an unemployed?). You would need therefore to prove that you are actively looking for work to support you both and maybe that your savings can carry the family for a few months.

[jei2]

Hi egw,

Sorry I posted my reply before your second post came up.

Sakura is absolutely right. Don't try to lie about your stay -that will make things worse, both now and in the future. Even though you have not made an application here, rest assured that that the Home Office will have a record of the dates of your entry to and from the UK.

Again the DP3/96 application will go to the back of the queue. My apologies for this ommission. If you've got some kind of base and family support in the US, it's best to go back there and re-apply. It will be a lot quicker.

If your children have British passports you might even be able to take them with you depending on the length of your visit, finances and the length of time it takes you to get an appointment at the relevant UK diplomatic post. But don't hang about - April's not that far away !

[sakura]

Assuming you were born in the US and/or lived there for a certain number of years and are a US citizen, your children are likely also US citizens. Simply apply for their passports. If you do decide to go to the US and take them with you, they need to enter the country on their US passports.

And, in case you wondered (as some people seem to do!), there is no problem whatsoever with them being dual US and UK citizens.

[egw]

Thanks for all your replies.

I must say I am now terrified!

Everything I have read (in the links provided) points me to believe the best option for success is going back before the April blacklist deadline and Appling there and then.
Now the problem being that I may well end up being automatically locked out of England and my kids and husbands life for at least a year and even if that doesn't happen I cannot be granted a visa because my husband’s dependence on benefits, I wouldn’t of thought this actually mattered too much as he gets the same amount with or without me there.

Can someone please clarify the public funds side of this for me? does it matter or not, as long as i am not claiming? seems a grey area.

The safer option which I don't like because it will take much longer before I can find employment is the in country application, assuming of cause that i am not thrown out as soon as I apply because of over staying.

I'm also curious about calling the UK embassy in the US, too try and talk to someone, and find how I would be affected and what are my chances etc, but I think everyone here will tell me not too...

I am very mad now if we had known we would of dealt with this back in 2002/3

Just to find out - did you not know anything about spouse visas/immigration visas at all? The immigration officers should have known, but maybe because you are a US national and thus do not need a visa to enter the UK, they did not check things properly. Either way, it's a lesson for everyone to check embassy/high commission websites before migrating and never assume anything can be done in-country.

Not a thing, no one has ever said anything to either of us, till around 3 weeks ago.

[thsths]

Everything I have read (in the links provided) points me to believe the best option for success is going back before the April blacklist deadline and Appling there and then.

Yes, that would be an option. Although there is also rumour that the new rules are already applied on an informal basis. Anyway, since time is short, you may want to make the necessary arrangements in case you decide to go back.

Now the problem being that I may well end up being automatically locked out of England and my kids and husbands life for at least a year

That is exactly the risk.

and even if that doesn't happen I cannot be granted a visa because my husband’s dependence on benefits, I wouldn’t of thought this actually mattered too much as he gets the same amount with or without me there.

Finally you are lucky, because this is not a reason for refusal. Since he would get the benefits whether you are there or not, they do not affect your visa case. And your case is a very strong one, so I think there is no way that you would be refused a visa in the end. But it may take a lengthy appeal process to get there.

The safer option which I don't like because it will take much longer before I can find employment is the in country application, assuming of cause that i am not thrown out as soon as I apply because of over staying.

Unless you make a mistake, you cannot be thrown out until your appeal is heard. Since you have a good case for an in country application, I again assume that the appeal would be successful.

I'm also curious about calling the UK embassy in the US, too try and talk to someone, and find how I would be affected and what are my chances etc, but I think everyone here will tell me not too...

Good luck. They have outsourced the phone line to India and charge 3 dollars per minute now, or something along those lines.

I think your best option is to contact your MP. If he or she is sympathetic with your case, he can contact the Home Office and find a solution for you. With a bit of luck (and some nudging), you may get a reasonably fast in country application. Remember: there is no reason to panic. It may not be easy, but you have an excellent chance to succeed in the end.

Tom

[egw]

Thanks for the reply.

After some googling i found this page which has eased my mind on the public funds side,

http://www.ukvisas.gov.uk/servlet/Front ... oint%20two

Because we have managed easily on his benefits since i came here, i think we are safely covered on that aspect, of course the addition of the childern and a bigger house because of that they may decide is enough to class it as recourse to additonal funds.

Now does anyone know any really really good immigration lawyers? i may need a better one than the only one listed in my area!

[jei2]

Hi egw,

Don't panic. You have a strong case on the face of it. At this point your main problem appears to be finance.

Concentrate first on compiling your documentary evidence.

If you decide to apply from the US, check the waiting times for entry clearance appointments in the relevant UK post back home. If it is listed in days rather than months you might be able to go over at short notice for the interview itself.

As long as he is not claiming any additional benefits on your behalf, your husband's benefits won't exclude you from obtaining a spouse visa. The benefits and housing are being claimed by a British citizen on behalf of British dependants as is their entitlement.

Should you decide to travel back to the US with your family, British citizens with the new electronically read passports can enter the US under the Visa Waiver Program. This allows visa free entry for up to 90 days. If your children don't already have a British passport you can get one in around 4 weeks or less, depending on which processing service you use.

From your first post it would appear that your husband's disability doesn't prevent him from travelling; accompanying spouses in visa interviews are generally looked on favourably even if he is not actually interviewed himself.

Make a note of the chronological events of what happened when you first met your husband and came ito the UK. If your husband can validate this as well then this makes your position a lot easier.

Don't dismiss your lawyer before you've seen him or her; if they're the only one in the area they are more likely to have experience in all sorts of difficult issues.

The underlying issue is proportionality; would it be proportional to the immigration rules to exclude you for having entered the UK illegally? I would say not. You are a citizen of a country that is economically stronger than the UK. I doubt that many Entry Clearance Officers will make too much of your illegal entry which appears to have been created and compounded by UK adminstrative error anyway.

[sakura]

Hi egw,

If you decide to apply from the US, check the waiting times for entry clearance appointments in the relevant UK post back home. If it is listed in days rather than months you might be able to go over at short notice for the interview itself.

Her children are probably also US citizens. In that case they must enter the US using ther US passports, not their British passports.

egw - can you confirm that the children are indeed entitled to US citizenship (through you), as they really should obtain their US passports before travelling there.

[egw]

sorry for not replying sooner.

replying on behalf of the wife (sorry my keyboard has dislexica)

Have visited immigration lawyer, who has applied for discretionary leave to remain, he said this was the best course of action due to how long we had been married and how long i had been in country and overstayed thus far and of course because of the april deadline (since changed).

he seemed very hopeful stating around 90% of the cases get approved those that don't normally get thru on appeal.

he wasn't cheap, we saw some Burger king change out of £1500.

But he did say once granted Discretionary Leave, that she should go and get her spousal visa anyway, then apply for ILR asap etc.

evidence we sent off were.

wedding/personal photos
every bill/letter we had in joint names
former employers letter
future employers letter
various charactor witness letters from
Doctors, Nurse, one very senior manager of a well known international company.
letter from mother and father in law, donating £20,000 to my wife if she needs anything and more if she needs it.
housing documents from local council with both names on it.
passports of the wife/husband+childern
husbands benefits/tax documents etc.

[Twin]

sorry for not replying sooner.

replying on behalf of the wife (sorry my keyboard has dislexica)

Have visited immigration lawyer, who has applied for discretionary leave to remain, he said this was the best course of action due to how long we had been married and how long i had been in country and overstayed thus far and of course because of the april deadline (since changed).

he seemed very hopeful stating around 90% of the cases get approved those that don't normally get thru on appeal.

he wasn't cheap, we saw some Burger king change out of £1500.

But he did say once granted Discretionary Leave, that she should go and get her spousal visa anyway, then apply for ILR asap etc.

evidence we sent off were.

wedding/personal photos
every bill/letter we had in joint names
former employers letter
future employers letter
various charactor witness letters from
Doctors, Nurse, one very senior manager of a well known international company.
letter from mother and father in law, donating £20,000 to my wife if she needs anything and more if she needs it.
housing documents from local council with both names on it.
passports of the wife/husband+childern
husbands benefits/tax documents etc.

Maybe I wasn't patient enough to finish your first post but I got the gist that you are American, right? Well...since the ban isn't going to cone into effect until October, why not return home and be back in less than a month and also save you some hard earned cash?

It's far more easier for an overstayer from the US to be granted a spousal visa than any other national in my opinion. Why not lessen your burden by just taking the opportunity that's been provided now? Do you know how long your application is likely to take with the home office? Remember, this is an out of the Rules application which notoriously takes long!

You'll be lucky to get an answer in a year!

[jei2]

Everything that Twin said plus ask your solicitor handle the Entry Clearance application from the US.

It might cost a bit more but ultimately it might well be worth it.

[John]

You might be rather interested to read :-

As per House of Lords' Immigration Debate (17 Mar 2008 : Column 96):

A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 320 (7B) of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

So if anyone currently an overstayer in the UK. you would be well-advised to leave before 1st October.

[egw]

I agree with everything you are saying.

Do i simply ask the HO for my passport back?

[John]

Given that you now have a paid adviser I think you need to consider your options with that person.

[Liberal Immigrant]

You might be rather interested to read :-

As per House of Lords' Immigration Debate (17 Mar 2008 : Column 96):

A number of people have, however, suggested that we will achieve our aims better if we give people who are currently here illegally a chance to leave before the new rules are applied to them. We have listened to their argument and reflected on it, and we agree with them. I can announce that we will not apply the provisions in new paragraph 320 (7B) of the Immigration Rules to anyone currently in the United Kingdom who leaves the country voluntarily before 1 October 2008. Those people will be able to apply to come back without being automatically refused under these provisions, although it is possible that they will be refused under other parts of the Immigration Rules.

So if anyone currently an overstayer in the UK. you would be well-advised to leave before 1st October.

edit

[egw]

Just to finish the post.

3 years granted then apply again for 3 years then after the 3 yrs is up (total 6 yrs) all done etc.

did an entry clearance Q&A in Jan, just heard today my outcome.

Thanks to all who gave advice.