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Liable to be detained paper served.

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tunab2
Junior Member
Posts: 67
Joined: Sun Apr 17, 2011 10:45 pm

Liable to be detained paper served.

Post by tunab2 » Sun Apr 17, 2011 11:14 pm

Hi all,
I would very much appreciate some help to figure out my problem.
Its is giving me sleepless nights now and any attempt for legal help/represensation were in vain.

Past CIrcumstance:
Basically i was stopped by police for a driving offence that led to immigration checks back in Jan 2005. As i had overstayed the terms of my visa (student), i was served papers waiting to be removed from the UK.

I had to sign at the Immigration in Hounslow every week but managed to change it to monthly as i was not living locally. I then sought some advice with an immigration lawyer (legal aid) who told me that in my case i had to go home and re-apply again to come back but it might not be easy and that if i carry on signing, i will be detained and sent off one day.

I was scared and stopped signing.

Current Circumstance:
My girfriend and i now want to get married here in the UK and live as a normal family (we are expecting a child), i tried seking legal advice and was told that i have to go home or wait till 2014 to apply for the 14-year concession. My girlfriend has her ILR for 4 years now and has actually passed the life in the uk test and is in the process of sending off the form for her passport.
We are not getting married for convenience and we are just rying to do things the right way before the baby arrive.
Can anyone help?

Thank you all in advance.
Last edited by tunab2 on Mon Apr 18, 2011 12:13 am, edited 1 time in total.

joh118
Senior Member
Posts: 511
Joined: Fri Nov 06, 2009 1:53 pm

Post by joh118 » Sun Apr 17, 2011 11:25 pm

you should wait until you partner is granted ILR as that will strengthen your case. Also, once your partner has ILR and your child is born, then the baby will be a British Citizen by birth, that will also make your case stronger.

You should then get hold of a good immigration solicitor to help you apply for Discretionary Leave to Remain as your case is complex.

The advice you got about the 10 year Long Residence ILR does not apply to you because you are an overstayer. Also, I don't think the 14 year Long Residence applies to you as well because have been served with removal orders and your 'clock' stopped when that happened.

tunab2
Junior Member
Posts: 67
Joined: Sun Apr 17, 2011 10:45 pm

Post by tunab2 » Mon Apr 18, 2011 12:10 am

joh118 wrote:you should wait until you partner is granted ILR as that will strengthen your case. Also, once your partner has ILR and your child is born, then the baby will be a British Citizen by birth, that will also make your case stronger.

You should then get hold of a good immigration solicitor to help you apply for Discretionary Leave to Remain as your case is complex.

The advice you got about the 10 year Long Residence ILR does not apply to you because you are an overstayer. Also, I don't think the 14 year Long Residence applies to you as well because have been served with removal orders and your 'clock' stopped when that happened.
Thanks Joh118.
My partner has her IRL for 4 years now and has actually passed her "Life in the uk test" and is in the process of applying for her british passport.

Do you recommend an in-country application or go back home in (Guinea)?
Also any referral for a good Immigration Solicitor?

Thank you!

joh118
Senior Member
Posts: 511
Joined: Fri Nov 06, 2009 1:53 pm

Post by joh118 » Mon Apr 18, 2011 12:17 am

I think you should consult a professional (any Level 3 registered OISC) consultant/solicitor/lawyer should do. They would then look at your case very carefully and they will be able to advise what your best options are.

note: the consultant/solicitor/lawyer really (must) be a level 3 to help you incase your case ends up in court, only level 3 can represent you. and the more experienced the better.

tunab2
Junior Member
Posts: 67
Joined: Sun Apr 17, 2011 10:45 pm

Post by tunab2 » Mon Apr 18, 2011 12:31 am

Thank you, i will start doing some research now.....:)
This forum is hot.....

tunab2
Junior Member
Posts: 67
Joined: Sun Apr 17, 2011 10:45 pm

Post by tunab2 » Mon Apr 18, 2011 7:29 pm

I was wondering what is the docs checklist for going home and re-applying for a spouse visa as that is from my opinion my best chance of sorting this out.
Can anyone help?

HRY2005
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Posts: 344
Joined: Tue Dec 08, 2009 3:16 pm
Location: UK

Post by HRY2005 » Tue Apr 19, 2011 6:42 am

tunab2 wrote:I was wondering what is the docs checklist for going home and re-applying for a spouse visa as that is from my opinion my best chance of sorting this out.
Can anyone help?
It's the best option, but in your case, absconding and any criminal record (you didn't mention the extent of the driving issue) could invoke 320(11). Consult a qualified and very good solicitor before you take that step my friend.

I wish you all the best.
Live and let live

Brown212
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Posts: 54
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Location: United Kingdom
Contact:

Re: Liable to be detained paper served.

Post by Brown212 » Tue Apr 19, 2011 8:41 am

tunab2 wrote:Hi all,
I would very much appreciate some help to figure out my problem.
Its is giving me sleepless nights now and any attempt for legal help/represensation were in vain.

Past CIrcumstance:
Basically i was stopped by police for a driving offence that led to immigration checks back in Jan 2005. As i had overstayed the terms of my visa (student), i was served papers waiting to be removed from the UK.

I had to sign at the Immigration in Hounslow every week but managed to change it to monthly as i was not living locally. I then sought some advice with an immigration lawyer (legal aid) who told me that in my case i had to go home and re-apply again to come back but it might not be easy and that if i carry on signing, i will be detained and sent off one day.

I was scared and stopped signing.

Current Circumstance:
My girfriend and i now want to get married here in the UK and live as a normal family (we are expecting a child), i tried seking legal advice and was told that i have to go home or wait till 2014 to apply for the 14-year concession. My girlfriend has her ILR for 4 years now and has actually passed the life in the uk test and is in the process of sending off the form for her passport.
We are not getting married for convenience and we are just rying to do things the right way before the baby arrive.
Can anyone help?

Thank you all in advance.
If you are in a marriage or partnership in which one partner is a non EEA national who is without leave to remain in the UK, and you have a British Citizen child together, then you should seek advice to see whether you could effectively invoke European Law to obtain a derivative right of residence in the UK. Duncan Lewis have a team ready to assist with these matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. This advice was recently given to people in this circumstances, concerning the recent Zambrano ECJ ruling.

joh118
Senior Member
Posts: 511
Joined: Fri Nov 06, 2009 1:53 pm

Re: Liable to be detained paper served.

Post by joh118 » Tue Apr 19, 2011 9:58 pm

Brown212 wrote:
tunab2 wrote:Hi all,
I would very much appreciate some help to figure out my problem.
Its is giving me sleepless nights now and any attempt for legal help/represensation were in vain.

Past CIrcumstance:
Basically i was stopped by police for a driving offence that led to immigration checks back in Jan 2005. As i had overstayed the terms of my visa (student), i was served papers waiting to be removed from the UK.

I had to sign at the Immigration in Hounslow every week but managed to change it to monthly as i was not living locally. I then sought some advice with an immigration lawyer (legal aid) who told me that in my case i had to go home and re-apply again to come back but it might not be easy and that if i carry on signing, i will be detained and sent off one day.

I was scared and stopped signing.

Current Circumstance:
My girfriend and i now want to get married here in the UK and live as a normal family (we are expecting a child), i tried seking legal advice and was told that i have to go home or wait till 2014 to apply for the 14-year concession. My girlfriend has her ILR for 4 years now and has actually passed the life in the uk test and is in the process of sending off the form for her passport.
We are not getting married for convenience and we are just rying to do things the right way before the baby arrive.
Can anyone help?

Thank you all in advance.
If you are in a marriage or partnership in which one partner is a non EEA national who is without leave to remain in the UK, and you have a British Citizen child together, then you should seek advice to see whether you could effectively invoke European Law to obtain a derivative right of residence in the UK. Duncan Lewis have a team ready to assist with these matters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. This advice was recently given to people in this circumstances, concerning the recent Zambrano ECJ ruling.
the original poster has said in his original post that his partner has already been granted ILR. plus, how could you possibly have a "british citizen child" when none of the parents have even leave to remain?

HRY2005
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Location: UK

Post by HRY2005 » Wed Apr 20, 2011 12:48 pm

Joh118,

The statement you responded to was ''one partner is a non EEA national who's without leave to remain'' not both parents. You only need one parent with a settled status for a child to qualify as a BC.
Live and let live

joh118
Senior Member
Posts: 511
Joined: Fri Nov 06, 2009 1:53 pm

Post by joh118 » Wed Apr 20, 2011 10:20 pm

HRY2005 wrote:Joh118,

The statement you responded to was ''one partner is a non EEA national who's without leave to remain'' not both parents. You only need one parent with a settled status for a child to qualify as a BC.
yes...I am very aware of the rules. what is your point?

HRY2005
Member of Standing
Posts: 344
Joined: Tue Dec 08, 2009 3:16 pm
Location: UK

Post by HRY2005 » Wed Apr 20, 2011 11:21 pm

joh118 wrote:
HRY2005 wrote:Joh118,

The statement you responded to was ''one partner is a non EEA national who's without leave to remain'' not both parents. You only need one parent with a settled status for a child to qualify as a BC.
yes...I am very aware of the rules. what is your point?
This is my point
how could you possibly have a "british citizen child" when none of the parents have even leave to remain?
Live and let live

joh118
Senior Member
Posts: 511
Joined: Fri Nov 06, 2009 1:53 pm

Post by joh118 » Thu Apr 21, 2011 3:37 pm

HRY2005 wrote:
joh118 wrote:
HRY2005 wrote:Joh118,

The statement you responded to was ''one partner is a non EEA national who's without leave to remain'' not both parents. You only need one parent with a settled status for a child to qualify as a BC.
yes...I am very aware of the rules. what is your point?
This is my point
how could you possibly have a "british citizen child" when none of the parents have even leave to remain?
yes, at least one parent needs ILR (unless they are already british) for their child to be British.

HRY2005
Member of Standing
Posts: 344
Joined: Tue Dec 08, 2009 3:16 pm
Location: UK

Post by HRY2005 » Thu Apr 21, 2011 5:05 pm

joh118 wrote:
HRY2005 wrote:
joh118 wrote:
HRY2005 wrote:Joh118,

The statement you responded to was ''one partner is a non EEA national who's without leave to remain'' not both parents. You only need one parent with a settled status for a child to qualify as a BC.
yes...I am very aware of the rules. what is your point?
This is my point
how could you possibly have a "british citizen child" when none of the parents have even leave to remain?
yes, at least one parent needs ILR (unless they are already british) for their child to be British.
Yeah! That's what the OP said. The child's mum (the OP's girlfriend) is settled (ILR for 4 years). That's the point I was making.
Live and let live

tunab2
Junior Member
Posts: 67
Joined: Sun Apr 17, 2011 10:45 pm

Post by tunab2 » Wed Apr 27, 2011 11:10 pm

HRY2005 wrote:
tunab2 wrote:I was wondering what is the docs checklist for going home and re-applying for a spouse visa as that is from my opinion my best chance of sorting this out.
Can anyone help?
It's the best option, but in your case, absconding and any criminal record (you didn't mention the extent of the driving issue) could invoke 320(11). Consult a qualified and very good solicitor before you take that step my friend.

I wish you all the best.
It was driving without insurance and i was actually fined 100gpb that i never got that i did not pay as i was young and stupid at the time.

connie500
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Post by connie500 » Tue May 03, 2011 9:04 pm

@ tunab2

hiya just reading your post wanted to ask if you have had any progress with your case.

bango
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Posts: 33
Joined: Wed Mar 30, 2011 1:51 pm

Post by bango » Wed May 04, 2011 10:58 am

The OP can apply under 14 year long residence.It doesnt matter if the OP was served removal papers.The 14 year long residence is for overstayers category..Please refer to the homeoffice guidelines.

In a nutshell if you managed to evade homeoffice for 14 years in UK you will be eligible for ILR under human right section 8.Hope this helps.

joh118
Senior Member
Posts: 511
Joined: Fri Nov 06, 2009 1:53 pm

Post by joh118 » Wed May 04, 2011 7:14 pm

bango wrote:The OP can apply under 14 year long residence.It doesnt matter if the OP was served removal papers.The 14 year long residence is for overstayers category..Please refer to the homeoffice guidelines.

In a nutshell if you managed to evade homeoffice for 14 years in UK you will be eligible for ILR under human right section 8.Hope this helps.
Bango, why don't you refer to the Home Office "guidelines" before giving advice? Also, the Human Rights Act has nothing to do with the 14 year Long Residency ILR category.

Paragraph 276B(i)(b) allows settlement to be granted where the applicant has had 14 years continuous residence here (whether or not the residence was lawful), excluding any period following the service of:
a. a notice of liability to removal; or
b. a decision to remove by way of Directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971, or section 10 of the Immigration and Asylum Act 1999; or
c. a notice of intention to deport (also known as a Notice of a decision to make a deportation order).

Service of any of the above notices "stops the clock" for the purposes of paragraph 276B(i)(b). This means that, if the applicant had not accumulated 14 years continuous residence on the date the "clock stopping" notice was served, they will never be able to qualify under paragraph 276B(i)(b).
Notices which stop the clock include:
•IS151A
•IS151A Part 2
•IS151B
•IS151B (NSA) (used in NSA cases)
•IS151B (CERT) (used where an asylum or Human Rights claim has been refused and certified under section 96 of the Nationality, Immigration and Asylum Act 2002).
•Notice of intention to deport ICD.1070
•Prior to the introduction of the ICD.1070 (on 2 October 2000), the notice of intention to deport was the APP 104.
•ICD.1071
•ICD.1072
•ICD.1075
•ICD.1076

Source: 2.2.6 Events that "stop the clock" for the purposes of the continuous residence

bango
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Post by bango » Wed May 04, 2011 7:36 pm

I am trying to find out the case reference number ( will post eventually) where the person was served deportation order and had served jail sentence for robbing at gunpoint. The person was granted ILR because he had family here even though he was an overstayer. The Ilr was granted under HRA sec 8. I assume it sets a precedent.( i may be wrong). The original advice was given on this case reference basis.

joh118
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Post by joh118 » Wed May 04, 2011 7:41 pm

bango wrote:I am trying to find out the case reference number ( will post eventually) where the person was served deportation order and had served jail sentence for robbing at gunpoint. The person was granted ILR because he had family here even though he was an overstayer. The Ilr was granted under HRA sec 8. I assume it sets a precedent.( i may be wrong). The original advice was given on this case reference basis.
yes, that case is to do with the Human Rights Act. As I have mentioned above, the HRA has nothing to do with the 14 Year Long Residence ILR Rule.

bango
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Post by bango » Thu May 05, 2011 11:51 am

"Its, that case is to do with the Human Rights
Act. As I have mentioned above, the HRA has
nothing to do with the 14 Year Long Residence
ILR Rule."

The OP wants to know how he can avoid deportation as he mentioned in the post.
This cade can be argued in his favour as he has a partner holding ilr and also expecting a baby. So HRA applies.

joh118
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Post by joh118 » Thu May 05, 2011 1:29 pm

bango wrote:"Its, that case is to do with the Human Rights
Act. As I have mentioned above, the HRA has
nothing to do with the 14 Year Long Residence
ILR Rule."

The OP wants to know how he can avoid deportation as he mentioned in the post.
This cade can be argued in his favour as he has a partner holding ilr and also expecting a baby. So HRA applies.
Yes, I agree, HRA applies. I never said the HRA did not apply to the OP's case.

The fact is, you incorrectly believed that the Long Residence rule is related to the Human Rights Act. This is not true and you need to relise this fact.

If the OP applies for ILR based on the long residency rules, he will be refused because the HRA will not be taken into account and he's notice on intent makes him ineligible. For the OP's Human Rights to apply, the OP will have to apply for Discretionary Leave.

Yet again, I have to tell you to read the IDI file on Long Residency:

10.1 Human Rights considerations
Where a person is found to have a legitimate claim to remain in the UK under Article 8, the period of leave to be granted should be determined in accordance with the Asylum Policy Instruction on Discretionary Leave.

If you are not aware, Discretionary Leave is NOT the same as ILR. Therefore, the HRA will only apply to an application made for Discretionary Leave and not the 14 year ILR as you wrongly advised.

tunab2
Junior Member
Posts: 67
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Post by tunab2 » Sat May 07, 2011 9:51 am

joh118 wrote:
bango wrote:"Its, that case is to do with the Human Rights
Act. As I have mentioned above, the HRA has
nothing to do with the 14 Year Long Residence
ILR Rule."

The OP wants to know how he can avoid deportation as he mentioned in the post.
This cade can be argued in his favour as he has a partner holding ilr and also expecting a baby. So HRA applies.
Yes, I agree, HRA applies. I never said the HRA did not apply to the OP's case.

The fact is, you incorrectly believed that the Long Residence rule is related to the Human Rights Act. This is not true and you need to relise this fact.

If the OP applies for ILR based on the long residency rules, he will be refused because the HRA will not be taken into account and he's notice on intent makes him ineligible. For the OP's Human Rights to apply, the OP will have to apply for Discretionary Leave.

Yet again, I have to tell you to read the IDI file on Long Residency:

10.1 Human Rights considerations
Where a person is found to have a legitimate claim to remain in the UK under Article 8, the period of leave to be granted should be determined in accordance with the Asylum Policy Instruction on Discretionary Leave.

If you are not aware, Discretionary Leave is NOT the same as ILR. Therefore, the HRA will only apply to an application made for Discretionary Leave and not the 14 year ILR as you wrongly advised.
Thanks to both of you (bango, john18) for your advice, they are so rich of information.
My sitution is as follows :
my girfriend and i are engaged now, we will be holding a traditional wedding ceremony in the course of the coming month and the pregnancy is in its second month.
Do we have to have a white wedding (registrar's office) before i can submit any application or do i have to wait for the baby to come?
Also in terms of evidence that we live together we do not curently have anything with both our names on...

Please help as i think you guys really understand my situation very well.

Greenie
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Post by Greenie » Sat May 07, 2011 8:17 pm

joh118 wrote:
bango wrote:"Its, that case is to do with the Human Rights
Act. As I have mentioned above, the HRA has
nothing to do with the 14 Year Long Residence
ILR Rule."

The OP wants to know how he can avoid deportation as he mentioned in the post.
This cade can be argued in his favour as he has a partner holding ilr and also expecting a baby. So HRA applies.
Yes, I agree, HRA applies. I never said the HRA did not apply to the OP's case.

The fact is, you incorrectly believed that the Long Residence rule is related to the Human Rights Act. This is not true and you need to relise this fact.

If the OP applies for ILR based on the long residency rules, he will be refused because the HRA will not be taken into account and he's notice on intent makes him ineligible. For the OP's Human Rights to apply, the OP will have to apply for Discretionary Leave.

Yet again, I have to tell you to read the IDI file on Long Residency:

10.1 Human Rights considerations
Where a person is found to have a legitimate claim to remain in the UK under Article 8, the period of leave to be granted should be determined in accordance with the Asylum Policy Instruction on Discretionary Leave.

If you are not aware, Discretionary Leave is NOT the same as ILR. Therefore, the HRA will only apply to an application made for Discretionary Leave and not the 14 year ILR as you wrongly advised.
I agree that the OP does not qualify for ILR under the 14 year residency rule but it is not correct that human rights are only considered as part of an application for discretionary leave. Human rights (including article 8) should be considered in any application where a human rights claim (strictly speaking a human rights allegation) is made or where there are clear human rights issues that arise. If the OP or someone in a similar position were to make an application for settlement and includes information about his family life in the UK then if settlement were to be refused human rights would need to be considered, and a grant of discretionary leave would follow if appropriate.

I am not advising the OP to apply for ILR under the 14 year rule as he doesn't qualify but I think it should be made clear that it is not correct that human rights are only considered in an applicaiton for discretionary leave.

vinny
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Post by vinny » Thu Feb 23, 2012 1:38 am

tunab2 wrote:Hi all,

Let me first thank all the contributors in this forum. It is rich of unbiased honest information, and for that i am particularly greatful.

[b]Brief History[/b]:
I need some guidance on my situation. I am an overstayer since 2003 and was once stopped by the immigration and served papers to sign every month at the home office in hounslow. I stopped that as well as i was scared by my then lawyer that i was liable to be detained and removed anytime.
I legally came into the country as a student in novenmber 2000, my visa was renewed twice up to 2003 from which point my parents run into financial difficulties and could no longer sponsor my studies.

My Current situation:
I have met a partner who has an ILR Since 2007. We have been together for 3years and last december (2011) were blessed with a beautiful daughter. I believe my daughter is elligble to have a british passport, which we intend to apply for asap. Our intention is to get married but given my situation is that the right decision or is there an alternative route i can use.
I just would like to point out that i am unemployed and my partner is currently on benefit (Housing + Income Support). She might start a job in a couple of months though while i stay home with the baby.

NB: Going home is not really an option for me, in country application is my only option.

Thank u
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