failed asylum seeker has child with british girl!

hi would just like some advice
i met my partner about 3 years ago, he is a failed asylum seeker. we had a daughter 9 months ago and are in the long process of applying for article 8 meanwhile he is unable to work or recieve any benefits so is supported by myself. i am not sure how to proceed at the moment, it could be better to apply from his country but his passport expired, and ther is always the fear he'll never be allowed back. also i have been suffering with depression the last 5 months so am not able to work which would effect him coming back on a spousal visa.
please help me, don't judge me.

I don't think anyone would judge you, or al least has the right to judge you.

To be honest with you, the quickest and easiest way to go about this, is for your partner to go to his home country.

However, because of the baby and the fact that you suffer from depression, for which you partner provides support, and if he was to leave, it might exacerbate the depression, you will have a very strong Article 8 to a border line Article 3 case.

You will need to seek legal advise, for a solicitor to represent you properly.

Medical evidence of your health conditions, and proof that you have stayed together for the length of time you claimed will be useful for Discretionary leave in these circumstances.

I'd be surprised if u could build an Art 8 case on a bit of PND! Depression can be treated, I know, I suffered from it quite seriously and you know 'can't work' is only an excuse, the best thing I did was get back working. Also I have a friend who suffers still with the worst bipolar depression I've ever seen, he's been sectioned twice, and takes Lithium. He works.

The other point to consider....your partner has claimed Asylum. i.e unsafe to return to his own country. If he now returns in order to apply for a spouse visa...it would appear to the authorities that his Asylum claim was false. What nationality does he have? Are you both over 21?

my post natal depression is not the reason for article 8, it is it would be wrong to seperate my partner from our daughter. we are both over 21, and he is from china. i still have a child under 1 so even if i was working i would be able to be at home now to look after my daughter anyway. we are in the process of applying for article 8 with the help of a solicitor but it is a long process and don't like the idea of being in limbo for another 3 years. i have even considered moving to his country but i really wouldn't want to bring up my daughter there.

zomumsy wrote:my post natal depression is not the reason for article 8, it is it would be wrong to seperate my partner from our daughter. we are both over 21, and he is from china. i still have a child under 1 so even if i was working i would be able to be at home now to look after my daughter anyway. we are in the process of applying for article 8 with the help of a solicitor but it is a long process and don't like the idea of being in limbo for another 3 years. i have even considered moving to his country but i really wouldn't want to bring up my daughter there.

It's a question of proportionality, dependent on factors such as;

1. The age of the child - the younger the easier it is to apply from home.

2. The difficulty of obtained EC from the home country, eg Zim would be very difficult, USA easy. China not that hard I reckon.

3. Whether u knew ur partner was illegal at the time - if u did there is no valid Art 8 claim.

she is 9 months old i did not know until i was pregnant. the thing is in china it's quite a corrupt place and if we had lots of money i'm sure there would be no problem but we do not have that luxury.

Hi zomumsy,

Its a very difficult place where you at right now....however nothing is impossible....trust me my family and I went through hell and back when my hubby was applying for his spouse visa....all I can say is have a read through my posts regarding the spouse visa....you will start to realise your case has a chance if ours did...the odds were stacked against us but he his here we are very happy and my life is near enough to perfection as it can be!!!!

I feel that the easiest way for you to continue is for you partner to go back to country of origin and do things from there.

The money issue could be the downside of it , however I have known a number of people to have there partners return whilst they have been on benifits, although it is better to have some sort of income to prove that your partner will not need help from the state.

Around the Article 8 issue.......I knew my hubby was here illegally and there were mitigating circumstances etc etc ......

The people who gave me guidance and prepared everything for me were the Immigration Advisory Service.....as you are unemployed they will assess your case and work out if they can assist you....its worth a try and it will be free for you if they can help you.

I know where you are coming from with the depression side of it I have suffered from it since the age of 16 on and off.....and throughout the whole visa process I was emotionally crippalled as I felt useless.....the only thing that motivated me was my hubby, work and the kids......and the bigger picture.....the future...

Think about things and get good legal advice.....many memebers on this bored are really helpful and have excellent knowledge of the system...although get some independent advice and you can weigh up you options....

Good Luck and keep us posted

This is just my opinion - my wife has her hearing on 25 Jan, I'm not working, on benefits and we are generally in a pretty poor position but have a lovely, happy daughter of 18 months who holds a British passport. We don't meet the "rules". Article 8 wise, we are a family, we can't return to Asia as such but we can remain in the UK as such. I reckon the financial impositions of the "rules" are a breach of Article 8 in their own right - we are fine in all other respects.

It is ridiculous to suggest that the younger the child the easier it is to return "home". If anything, the younger the child the more important it is that essential developmental stages occur in stability, without anxious parents wondering when they will be together as a family again. Ask any educational psychologist - get an appointment with one through your GP if you like. In my case the Home Office is suggesting that we aren't settled. Our daughter has been attending our local Sure Start center since August and it is very clear that it has become very important to her preschool development. The center offers a lot of assistance in housing, in bilingual support for our daughter and ensuring developmental stages are being met. It is important for her well being and is evidence of our settled status. Check if you have one near you and join it. The one we have is simply wonderful. Aim the article 8 argument on the basis of your child and through that route you and your partner.

My experience of the Home Office is making me want to experience excruciating poverty for 2 years to retrain as a solicitor and spend the rest of my life making theirs very difficult.

Since we debate things on this forum I thought I would just play a Devils Advocate for once:

- How is it OK for UK criminal law to break human rights (i.e. send someone to prison and deny him/her his/her family life) and it's not OK to do so for UK immigration law? (both are laws?)

BLK235 wrote:Since we debate things on this forum I thought I would just play a Devils Advocate for once:

- How is it OK for UK criminal law to break human rights (i.e. send someone to prison and deny him/her his/her family life) and it's not OK to do so for UK immigration law? (both are laws?)

I understand, people underestimate the fact overstaying is a CRIMINAL offence. The culprit is a CRIMINAL.

Plus it's unfair to demand rights after commiting an offence like this, if someone broke into you house, sat down eating your food and watching your telly, is fair for them to claim, 'well, I'm here now, it's against my human rights to deny me what I've just stolen so I can't leave'?

i think there is a bit of a difference between stealing something and wanting to stay in a safe country with your family. my partner has not harmed anyone all he did was come to this country for safety. i'm not saying he is perfect but he is a good person all he wants is to provide for his family.

Totally agree with you zomumsy.....there is a lot of difference

Tut tut

BLK235 wrote:Since we debate things on this forum I thought I would just play a Devils Advocate for once:

- How is it OK for UK criminal law to break human rights (i.e. send someone to prison and deny him/her his/her family life) and it's not OK to do so for UK immigration law? (both are laws?)

UK Criminal Law does not contravene the European Convention on Human Rights as they quite specifically include provisions for the lawful arrest and detention of individuals in certain circumstances

Article 5: Right to Liberty

(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law....


Article 8: Right to privacy

(1) Everyone has the right for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

http://news.bbc.co.uk/1/hi/uk/946400.stm



We don't always like it, especially in our own circumstances, but the national authorities do have the right to manage borders for the good of the nation rather than for the good of one family.

BLK, the UKBA often respond to claims against Article 8 that they are not denying the right to family life, as the UK citizen could just as easily maintain a family life in their spouse's country.

Yeah agree but sometimes its not as simple as settling in your spouses country.....thats why assessment on an individual basis is required......