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Spouse overstay

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rickydarre
Newly Registered
Posts: 1
Joined: Sat Apr 30, 2011 6:39 pm
Location: Manchester

Spouse overstay

Post by rickydarre » Sat Apr 30, 2011 7:00 pm

Hi people. I needed some advice as I came into the country 2 years ago. I married a British National. I didn't apply for the indefinate to remain or extend the stay as I hadnt completed my ESOl course and thought I couldnt. Now i've finished the ESOL course I am 7 months over. I have a daughter that was born in UK. I am confused as to whether I need to apply for the indefinate stay or apply for an extention. Please help?

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

Re: Spouse overstay

Post by joh118 » Sat Apr 30, 2011 7:20 pm

rickydarre wrote:Hi people. I needed some advice as I came into the country 2 years ago. I married a British National. I didn't apply for the indefinate to remain or extend the stay as I hadnt completed my ESOl course and thought I couldnt. Now i've finished the ESOL course I am 7 months over. I have a daughter that was born in UK. I am confused as to whether I need to apply for the indefinate stay or apply for an extention. Please help?
I'm afraid, now that you are an overstayer, the process of getting a spouse visa is much more complicated. However as you are married to UK national and as you have a british daughter, you have human rights.

The easiest way to get the spouse visa, would be to leave the UK, and apply from your home country. under the current rules, after 2 years, you can then get ILR then citizenship.

However, if you cant leave the UK for some reason, then your best bet is to apply for Discretionary Leave. It will take 6 years on this leave to get ILR. as this type of application is complex, i suggest you get an expert to help you.

geriatrix
Moderator
Posts: 24754
Joined: Fri Mar 17, 2006 3:30 pm
Location: does it matter?

Re: Spouse overstay

Post by geriatrix » Sat Apr 30, 2011 7:22 pm

rickydarre wrote:I needed some advice as I came into the country 2 years ago. I married a British National.
What visa (if any) did you enter UK with?
Life isn't fair, but you can be!

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

Post by HRY2005 » Sun May 01, 2011 9:00 pm

If I understand your post, you came to the UK with a spouse visa on the basis of your marriage to a BC. You could not apply for ILR because of the English language test requirement and your 27 months visa ran out in the process.

You have now sorted out the English language test issue, 7 months after your spouse visa's validity and confused on what to do as a result of the overstay. If that's the case, my advise would as follows:

Get yourself a good solicitor, there was an Upper Tribunal judgement which I read about in December 2010, the case was not reported though but it can still be used. It was held that the requirement for ILR should be that the applicant was admitted to the UK on a spouse visa and has completed the 2 years probationary period, it does not require the possession of a current leave to remain.

Click on the link below and have a look. Click on the ''click here'' on the second (one line) paragraph which will take you directly to the judgement, you never know it might help and I believe it will.

The words ‘has completed’ had been held by the immigration judge below to mean ‘had just completed and reached the end of’. The panel, which included Dr Storey, held that this was wrong and that there is no need for the two year period to have just concluded. It could be historic, as long as it is the required type of leave, i.e. as a spouse. This allowed the appellant, who had allowed his leave to expire and had become an overstayer, to regularise his position and gain ILR
Live and let live

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