Discretionary leave with unspent conviction helpppp needed

[connie500]

First posting so pls go easy.

I am a british citizen born in uk with full time job, flat,savings etc. My partner is a 5 yr visa overstayer who is currently serving 8 months in prison (has to do half) for possession of a false passport with intent. We have been together since 2007 but have proof since august 2009 (some months one document/other months 2 or 3 documents). my question is would he qualify for discretionary leave upon release, would he get it with his current criminal record. Also, if he was granted the discretionary leave for 3 yrs and then a further 3 yrs how would he overcome the new law regarding denying ppl with unspent convictions as his conviction will be pent in 2021. We have no children and it is a genuine relationship.

Any advice we be appreciated, thanking you in advance

[Greenie]

Whether your partner will get discretionary leave will depend on all of the circumstances of his case, for example, how long he has been in the UK, his family and other ties here, his age and other compassionate circumstances.

Even if they grant him DL, they may give him a 'non standard' grant due to his criminal conviction, sometimes this is for 6 months at a time. they may not do this as his conviction is less than 12 months but it is possible.

What is his nationality?
Why did he originally come here and why did he overstay?
Did he make any attempts to regularise his stay on the basis of your relationship before his conviction?

[connie500]

First off thank you for your response.

In reply to your questions, he came to uk may 2006 from nigeria on 6 month visit visa and he is 30yrs old, his mum passed away a month before he was due to go back (dad passed away before he came to uk, when younger) he has a sister here (with UK citizenship), he has a nephew with learning difficulties whom he helps out with as well (bathing, dressing, etc).unfortunatly we were in the process of gathering more documents when he was arrested, so never made any aplications yet. He has no one to go back to thats why he didnt go when meant to (i no that is no excuse).

We just both very scared that he will be sent back, do you think he has chance of any possible stay in uk.

[connie500]

@greenie

Would it maybe possible to apply for the unmarried partner visa? if we did how would we over come the 10 yr unspent conviction rule.

Thanks

[Greenie]

to qualify for the unmarried partner visa he would need to apply from outside the UK and wouldn't get it due to the unspent conviction. Discretionary leave is the only realistic option but you may find it difficult considering you are not married and don't have any children.

does he have a solicitor?

[connie500]

we have no solicitor at present, i am looking for a good one as I dont want to go to one whi just wants to collect money without giving proper help.what do you suggest we do now

[connie500]

@greenie

what would happen if we got married in a church of england church then?? would this be possible and would the ukba think it is a sham marriage even though i have proof of us living together since 2009, photos friends and family confirmation.

[Greenie]

as long as you can prove the relationship is genuine there is no reason to think the UKBA will say your marriage is a sham, however the fact that you are married will not necessarily mean the application has a greater chance of success although it does at least suggest your relationship is more committed/permanent.

[connie500]

Does anyone know the chances of my partner getting temporary release after his sentence to sign weekly at a police station, what are the things they take into consideration when deciding etc. In court it was also mentioned that the Home Office have not found any records for my partner??? what are the implications of this. I intend to pay for his flight to go back voluntarily and we then intend to get married and do things properly.What would be the chances of him being allowed to come back with a spouse visa now he has an 8 month prison sentence on his file. I know he cant be refused cause of overstaying following paragraph 320 (7C), but if we meet all the other requirements accomodation, no resource to public funds, over 21 etc.
can we still be refused cause of his criminal record alone.

any help we be much appreciated, thanking you in advance.

[Greenie]

He cannot be automatically refused because of overstaying under 320(7A) but his conviction and conduct in the UK could mean that the spouse visa is refused on discretionary grounds.

See Immigration Rules 320(11), 320(18 ) and 320(19).

http://www.ukba.homeoffice.gov.uk/polic ... les/part9/


Whether he can get temporary release will depend on whether he is easily removable to his home country (it's usually fairly easy to remove to Nigeria esp if he has a travel document), his previous immigration history, his conduct in the UK etc, and whether they will think he will abscond if released etc.

edited because a random and innappropriate smiley appeared within the text..

[connie500]

thanks for your speedy response. So bascially it is not looking to good, discretionary grounds meaning, it will all come down to the officer in charge of our case, looking at our file on the day. So stressful. 10 yrs is a very long time to wait for his conviction to become spent and the idea of me going to live full time in nigeria is very difficult due to wrk, language barriers, living conditions, my diabeties etc. My only hope now will be for them to give him temporary release so we can at least see each other before he is removed, and then take it from there.

[connie500]

Update so far, any help or advice will be much appreicated

My partners prison sentenced finished yesterday but they are refusing to release him from prison. They have not served any IS15a etc form yet but only given him a [b]IS91R form reason for detention and Bail rights[/b]. My worry now is the reasons they have put for refusing bail are

1) He previously failed to stick to bail conditions [b](he has never had an immigration or police case before so this is untrue)[/b]

2) He used or attempted to use deception [b](are they referring to the criminal case)[/b]

3) He has not produced any ID [b](Is this a valid reason for refusing bail/temporary admission)[/b]

Could anyone please give there views as to what will happen next, his chances or getting bail and is it normal for some to still be held in a prison (not detention centre) without being served the relevant papers.


Thanking you in advance

[connie500]

ok so since my last post in 2011 me and my partner's case has moved forward but not yet concluded.
He was eventually released after being transfered from prison to detention centre, with signing restrictions etc. We found a solicitor who put in an application for leave to remain (whilst he was still in dentention). This was refused and we put in an appeal with was allowed in August 2012. We then heard nothing from UKBA / Home Office and our solicitor chased them for feedback. We received a biometrics letter in Jan 2013 and my partner submitted his biometrics on the same day. Til today we have not heard or received any status document or residence card. Is this normal?? my solicitor has called them and they have said they are busy and they cant say when he will receive his documents. My partner decided to call his caseworker direct and he was told that he had been granted discretionary leave from 14th December 2012. BUt we have still not received anything to confirm this. We really do not know what to do please can anyone advise. Do we write to MP, JUdical Review?? What should be our next step. it has now been 11 weeks waiting... Thanks in advance

[connie500]

Hi, Is anybody able to advise please. thanking you in advance

[Gagan1986]

You can write to your MP and see where they are at the moment