Non-EEA Overstayer with EU National – Advise SOS Please!

[mastermind72]

My girlfriend is Non EU, has been 11 years in the UK, out of which the first 7 under a student visa, and the remaining 4 unlawfully (the first two she managed to obtain full time employment, the last two she has been unemployed and fully supported by me).

I am an EU national and have been in full time employement in the UK for 9 years now (I have a very good and stable job, which has been paying and can still pay for both of us).

We met 2 years ago, and have been living together for 1.5 years now - I own a flat in London. We are serious about eachother and would like to settle and build our life and family in the UK.

I have read a lot about the EEA-route on this board (Form EEA2 – Residence Card), and I believe it is the only option for us if we want to sort things out at this stage of our lives.

So I would like to ask some specific questions please, if I may:

1. Form EEA2 “threatensâ€

[Ben]

Hi mastermind72,

What's your nationality?

Assuming you're not British, you either need to get married or you need to leave the UK and re-enter together.

The ECJ ruling on Metock applies to family members but not to beneficiaries, such as unmarried partners who are in a durable relationship with an EU national.

[Obie]

I think the policy which led to the conclusion in Metock also applies to Article (3) 2 family members, even though it did not expressly deal with "Other Family members".

This is confirm in the judgement below:

At no point in the judgment in Metock does the ECJ expressly consider OFMs. Indeed, in the extracts from the Directive which it carefully set out, Article 3.2(a) is omitted. However, it is accepted on behalf of the Secretary of State that the reasoning which underlies the conclusion that, in relation to Article 2.2 "family members", there is no need for prior lawful residence in another Member State, must also apply to OFMs. To that extent, the fourth and sixth propositions expounded by Buxton LJ in KG and AK (see paragraphs 10 and 11 above) require modification. This stems from the ECJ's reconsideration of and departure from Akrich. It follows that the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive. It cannot be the case that the policy which produced the result in relation to Article 2.2 family members in Metock is inapplicable in relation to OFM

Lawful residence in the UK is not a requirements and the UK are also required to look at Article 8 aspect of such applications before rejecting them.

[mastermind72]

Thank you for your responses.

My nationality is Greek (EU) and my girlfriend's is Cameroonian (obviously non-EU).

I have already obtained ILR/Permanent Residence in the UK, back in 2006 (I know it is not required but I guess it shows you seriously want to stay here).

So gettting married is the best way to "establish" our relationship, and we have agreed to proceed with this asap - but can we do that easily and quickly at a Church of England, which I understand do not require clearance from UKBA (Certificate of Approval)?

Regarding also my point 4: As explained my girlfriend's passport expires in 5 weeks, and she cannot renew it (the embassy asks for Home Office clearance) - Can we get married without her passport (i.e. with a birth certificate?) - And more importantly can we apply under EEA2 without a valid passport (i.e. again with a birth certificate) - the form says if you are unable to provide a passport, or ID, then provide alternative identification.

Thank you again for your time and assistance.

T._

[mastermind72]

Also, please read here - recent developments reading to the abolishment of the Certificate of Approval by the end of 2010 - early 2011.

http://www.ukba.homeoffice.gov.uk/sitec ... oa-changes

I guess that is a major decision, as a consequence of the Courts' rulings.

T._

[Ben]

Hi mastermind72,

I'm happy to say it looks like I was wrong, as Obie pointed out.

It would seem that the UK is taking Metock to include beneficiaries as well as family members, so you don't need to get married at all.

Wait six months, then have your girlfriend apply for a Residence Card.

[mastermind72]

Ben & Obie:

Many thanks again.

I guess you mention "wait 6 months" because you want us to complete 2 years living together - which is fine.

Two problems I see with waiting:

1. By the time the 6 months have ellapsed, her passport would have expired... so how will she be able to submit an EEA2 application with no valid passport? Do UKBA accept some other form of ID (e.g. a birth certificate)?

2. When living under the same roof, the burden will be on us to prove that, indeed we have been living like a married couple for two years... isn't this true? Whereas if you are married you just need to show the Marriage Certificate and nothing more, so getting married is a more powerfull position, no?

T._

[Ben]

Getting married is a more powerful position, in the context you have used.

Regarding the passport, why can't she get a new one from her country's embassy?

[mastermind72]

Ben:

We have checked it and the Cameroonian Embassy requires the passport applicant to be free of immigration controll in the UK (Visa, Permit, ILR, etc). Simply producing the old passport and getting an extension on it will not do - to be frank with you, it makes sense.

Nevertheless, the EEA2 form mentions that if the applicant is unable to produce a current passport or national ID, then they need some other form of identification. So there may be some flexibility there - after all an overstayer is expected not to have a valid passport.

We will speak to an immigration solicitor on this matter, but my main concern, right now, is to try to fit everything (marriage and EEA2 application) by the expiration date... which might be a challenge, but seems to be the best success option right now.

Can you please give me your comment as to how complicated such cases are? The way I understand it is that, when married, overstaying/unlafull residence does not really matter. And our solicitor told us that, in theory we should be able to get the resident card, but is this what happens in practice or do you have to go through endless cases of appeal? And are such cases appealable?

Thanks again for your time.

[Obie]

You need to bear in mind that COE cannot approve you and your partner to get married if you are not part of their diocese or if she does not have a valid ID, or in some cases evidence showing she has some form of leave to remain.

If you can convince them to organise a marriage , that is great, but if not, then you have to wait for the new legislation scrapping COA to come into effect, or try your chance applying for COA.

I will advice for you not to apply for COA except you can show evidence like bills or bank statement, showing you have been living together, and that your proposed marriage is not one of convenience.

If she has an HO document, or possible marriage picture, then even if she does not have a passport, Residence Card can be placed on Status document.

[Ben]

I would advise not to apply for CoA at the present time, for this reason.

[mastermind72]

This is something I do not really get.

How can UKBA and people on this forum announce that you can get married at a Church of England with regardless of immigration status, and when you go and ask a Church, they say they need a HO paper?

My girflriend is on the phone since 9am this morning calling and asking about that, and so far all Churches in our diocese have said no, they cannot marry us.

T._

[Ben]

If you really want to get married, you might consider entering Ireland via Northern Ireland (so no border controls) and getting married there.

I don't know the practicalities of this as far as the marriage itself is concerned, but it might be something to look in to.

[Obie]

How can UKBA and people on this forum announce that you can get married at a Church of England with regardless of immigration status, and when you go and ask a Church, they say they need a HO paper?

My girflriend is on the phone since 9am this morning calling and asking about that, and so far all Churches in our diocese have said no, they cannot marry us.

T._

To the contrary, i did mention in an earlier post that the churches are will ask your partner to show evidence of her status in the UK before they can conduct a wedding. The rules have been tightened due to pressure from the UKBA, although some diocese are a bit flexible.


The COA could be a good option too, if prior to the approval, there is an application, under Durable partnership. Tjis will prevent any unforseen evident.

I am not too sure the OP's partner will be able to marry in Ireland either, as they sometimes demand PPS and proof of ID, and other proof of residence in the state before wedding could be registered. Without lawful resident in the state that might be a bit difficult, but possibly not impossible.

[mastermind72]

Thanks again, I think this is what we will do: apply first for durable partnership and then apply for Certificate of Approval. The CoA should be issued earlier, so then we will get married and change the application from durable partnership to married.

I have two more questions please:

1. we spoke to an immigration solicitor and, she told us that we do not need to wait for 2 years to apply under durable partnership: she said it is not written anywhere in the legislation, it is something that UKBA expect/require arbitrarily. Is this correct? If this is the case, then we do not need to wait until next February when we will have clocked 2 years cohabition (we already have clocked 2 years in relationship, but only 1.5 years cohabition).

2. Also, we do not have hard evidence (utility bills, etc) that we have been cohabiting, there is proof (some correspondence, plus letters from the porter of our building, and the building management agent) but there is no tenancy agreement (as I am the owner of the flat). According to your opinion, how strong are non-hard evidence (utility bills, council tax, etc)? I only recently added her name on the electricity and BT bills, I could have done from the start of our cohabition but at that time I did not know that she had an immigration problem.

Thanks.

[babie_meg]

Thanks again, I think this is what we will do: apply first for durable partnership and then apply for Certificate of Approval. The CoA should be issued earlier, so then we will get married and change the application from durable partnership to married.

I have two more questions please:

1. we spoke to an immigration solicitor and, she told us that we do not need to wait for 2 years to apply under durable partnership: she said it is not written anywhere in the legislation, it is something that UKBA expect/require arbitrarily. Is this correct? If this is the case, then we do not need to wait until next February when we will have clocked 2 years cohabition (we already have clocked 2 years in relationship, but only 1.5 years cohabition).

2. Also, we do not have hard evidence (utility bills, etc) that we have been cohabiting, there is proof (some correspondence, plus letters from the porter of our building, and the building management agent) but there is no tenancy agreement (as I am the owner of the flat). According to your opinion, how strong are non-hard evidence (utility bills, council tax, etc)? I only recently added her name on the electricity and BT bills, I could have done from the start of our cohabition but at that time I did not know that she had an immigration problem.

Thanks.

HI mastermind, i suggest that you get married with your girlfriend in Jersey. There is no border control between the UK and Channel Islands and there is no need to apply for COA to get married in Jersey. It can all be arranged rather quickly by post. they recommend giving 1 month's notice but if you need to get married quickly I think it can be arranged as soon as within 10 days. You just need to arrive on the Island 3 working days before your wedding day to pick up your marriage license. further details please visit the Jersey Superintendent Registrar website and it will be a civil wedding. you can call or email them first to tell them a date that you want to get married so that they can hold the date provisionally in their diary until you give your notice in writing (they will send u a notice of marriage form to complete).

and then with the marriage certificate it is much easier and quicker to get the RC. with unmarried partners you need to provide a lot of evidence and from the experience of the people on this forum it seems to take a long time for Home Office to decide as they need to check a lot of things, and until they make a decision your gf won't have any right, whereas if she's your wife, she has automatic right even before Home Office makes a decision. They will send u a certificate of appliction to confirm what right she has and that she is free to live and work in the UK.

As for no ID, I think on the EEA2 form it says you can provide other forms of ID and include a cover letter to explain why a passport is not availab.e Not sure how this will affect the application.. because I don't know anyone that didn't submit a passport but you can always try or seek advice from an immigration lawyer.

If you want to go for unmarried partner route you do need to have lived together for 2 years (that's what my lawyer told me, and what I have read on the home office website and cos I didn't have 2 year evidence, i went for the marriage route).

[babie_meg]

[quote="mastermind72"]Thanks again, I think this is what we will do: apply first for durable partnership and then apply for Certificate of Approval. The CoA should be issued earlier, so then we will get married and change the application from durable partnership to married.

I have two more questions please:

1. we spoke to an immigration solicitor and, she told us that we do not need to wait for 2 years to apply under durable partnership: she said it is not written anywhere in the legislation, it is something that UKBA expect/require arbitrarily. Is this correct? If this is the case, then we do not need to wait until next February when we will have clocked 2 years cohabition (we already have clocked 2 years in relationship, but only 1.5 years cohabition).

also if you can take some time off your work and travel to jersey with your gf I think you can even give notice in person - that way the marriage can take place much sooner. I gave my notice by post because I didn't have the passport exiry issue like your gf does so wasn't realy in a rush and I had a job in London that I couldn't relaly leave for a week or 2 to go to jersey to arrange my marriage. after i gave my notice by post, i just flew there 3 days before to get married and came back and applied for the RC.

I also looked into getting married in Ireland as an option but it's more complicsted there and takes longer to get availability and they need some residence requirment as well. Jersey is the only way for you now if your gf cannot leave the UK to get married abroad and cannot apply for Certificate of Approval.

[samsaq]

Hi, all,
i live in UK with my gf and we are trying to get married in Jersey as she has over stayed here. But when we contact registrar office there they told us we need to check with immigration office first if we are okay to get married in Jersey. So how we do it now? as someone mentioned its easy to get married here?

[mastermind72]

I think with the recent publicity on sham mariages and the church of England plus the big propaganda that the British government has started on immigration freeze/bans/caps, things are bound to be more difficult for everyone.

I would suggest you do like us: wait to see what happens with the Certificate of Approval abolishment and also try and build a case of durable partnership (by first completing 2 years of cohabition with your unmarried partner).

So for the time being: wait and see how things evolve, while gathering evidence for durable partnership, until end of 2010/early 2011.

T._

[mastermind72]

I do not want to start a new thread so I am adding on this one as there has been an unexpected update in our case (please read above).

While waiting to "clock" 2 years of cohabition (Feb 2011), my girlfriend's nephew, who is 15 years old and an EU (French) citizen (French passport holder) has been sent by his mother (my girlfriend's sister, also an EU/French citizen), from France, to a boarding school here in the UK (he started end of August 2010). My girlfriend has been registered as the first poin of contact here in the UK with the school, as her sister lives permenantly in France. The plan is for the nephew to complete his education and go to University here in the UK.

I have been looking into the law/regulations, and if I read correctly, nephews are not considered immediate members of family, they are considered extended family members - so it seems to me that she cannot automatically benefit from the law/regulations of immediate family members.

Do I get this right? Or not? And if not, what are the options?

Thank you for your time reading and responding to this.

T._

[mastermind72]

I thought it'd be useful if I were to give you some updates on our case.

Using the services of a solicitor, we applied for a Certificate of Approval and an EEA2 (Durable Relationship) in early March.

We received acknolwedgements for both applications in late March.

As you probably know, on 9 May the Certificate of Approval Scheme was abolished. And so far we have not received a Certificate fo Approval, so we assume that we will not get one.

The next step for us is to get married. But after contactint our local council register office, they insisted that they needed a valid passport or other form of photo-id for my gilrfriend: now she cannot produce a valid passport, as her expired passport is with UK BA (and will probably stay with them while they consider the EEA2 application).

Even if we were to request it back, it would be expired and the registrar could make a fuss about it. Needless to say, she can produce a Birth Cerrtificate (from Cameroon) in English, but I asked and they need something more than that.

So we are in a dead end again... any ideas or other similar experiences and possible solutions? of course our solicitor will explain all these in a letter but the council need that valid passport or other photo-id.

I do have a date set for the notice, and intend to go with whatever we have at hand, but I need to know how to argue with them.

Thanks in advance.

[Ben]

they needed a valid passport or other form of photo-id

Any definition? What about a bus pass or work's ID?

[mastermind72]

They mentioned "valid passport", "valid national id", "driving license".

She has none.

But she has:

Medical Card (what this is, is the NHS card you get from your GP, although no photo on it, it is listed as "acceptable" on the Westminster council, if it is to go along with the birth certificate).

TfL Travel Card Photo ID (this is issued by my employer - TfL - as a free travel pass to our partners, etc and it has a photo and her name, but I am not sure how official that is...).

National Insurance Card (no photo though).

Last but not least: letter from UKBA addressed to her stating about her application for CofA and EEA2 (not sure if this is proof enough).

+ utility bills (but they have to be produced anyway)

No employer pass as she is self-employed.

I mean if she can bring all of the above it would be difficult for the council to argue that they do not accept these, however they may still do so and we may end up getting into the "overstayer, trying to get married" conversation...

Thoughts?

[miriam2]

Maybe you should request for her passport and take the latter from HO confirming her application along to the Cameroonian Embassy for extension

[alekos]

Your best bet is to explain everything, with evidence such as photocopy of expired passport and acknowledgement of application from UKBA, to your partner's embassy. Ask there what you need to do in order to get a new passport.

In my embassy, they are able to authenticate a photocopy of passports and other documents, but you must fulfil certain criteria. Just some ideas...