Mother of my child may be deported.

I am writing in relation to my partners visa.

I am a British national and my partner is Australian. We are proud new parents to a week old baby boy, and are caught in an unfortunate loophole, which could potentially result in my partner being deported.

We are both graduates of the Rambert School of Ballet and Contemporary Dance where we were both awarded with a Ba Hons. My partner has subsequently undertaken a Post Graduate Diploma. She completed this course earlier this year and it is a tier 4 student visa from this course that she currently resides under.

Roseanna is 20 and I am 21.

The problem is one cannot apply for a marriage or partner visa if the applicant or sponsor is under 21 years of age. (Unless one of the two is in HM forces.)

Roseanna turns 21 on the 23rd of October, and her student visa expires on the 8th of September. As you can see, there is a terribly annoying gap of just over a month in which there is not a suitable visa for Roseanna to apply for. What adds to this farce is the fact that many of her peers received the same visa, but there’s does not expire until December in some cases.

I have read about "Discretionary leave," and "Leave outside the rules," on the ukba website, but cannot work out how to apply for either of these.

There was a case fairly recently entitled Quila and Others v Secretary of State in which there was an appeal against the very same paragraph which we are having difficulty with. Their appeals were awarded and the ruling judge stated that the amendment to the immigration rules was a disproportionate interference with family life. It was then recommended that there be a full review of the rule in the Supreme Court, but to my knowledge this hasn’t happened yet.

The Secretary of State for the Home Department clarified that ‘clear exceptional compassionate circumstances not previously considered could warrant the exercise of discretion outside the rules.’

I would assume or at least hope, that we fall into this category, however I do not know how to apply for this? I have scoured the Internet and contacted various government advisory bodies but to no avail.

We are in quite a desperate situation so i would really appreciate any advice.

All the best.....

You partner is very young to have completed a three year bachelors course and a one year post graduate diploma!

Given that she is so close to the age of 21 i would say that, assuming she meets the other requirements of the rules as an unmarried partner or spouse of a British citizen, that she should apply just before her leave expires by post. She can then delay making an appointments to enrol her biometric s for 21. Days. By the time a decision is made she will probably be 21 and if not they may exercise discretion

Greenie has given you good advice. However, you mention your 'partner'. If you aren't married, how long have you been living together in a relationship 'akin to marriage' with documentary evidence to suppport this? You will need to show a minimum of 2 years co-habitation in order to qualify for an Unmarried Partner Visa.

You partner is very young to have completed a three year bachelors course and a one year post graduate diploma!

Of all the people who i have asked for advice on this issue, you are the first to notice that! Many of the dance institutions accept candidates onto there degree programs from the age of 16 due to the need to train at a young age.

Greenie, your suggestion is very clever and did make me smile, but would you genuinely recommend that course of action? It seems a little dangerous?

And Casa, we are not married, and I didn't realise that proof of 2 years co-habitation was required, this would not be possible. We have only lived together with paper work to prove it for 1 year. I guess I also hoped that us having a child would veto this......my naivety showing.

Having said that, we could quite easily get married tomorrow if it would aid our cause..... seriously.

If you get married and then take the route that Greenie proposes, then you will be applying for a visa under the provisions of the Immigraiton Rules. Leave to remain as a spouse should be granted for 2 years, after which (under current rules) your wife would become eligible to apply for INdefinite Leave to Remain ("ILR").

If you are unmarried, then you should still apply along the same timescale that Greenie suggests, but you will be asking the Home Office to exercise their discretion to allow your partner to stay. Having a child does demonstrate a serious unmarried partnership, and your child's rights should be taken into account. Discretionary leave is usually granted for 3 years, with ILR a possibility after 6 years.

In either case, if the application is refused, then your partner would have a right of appeal and would be allowed to remain in the UK until her appeal rights were exhausted/permission to stay is granted.

It's worth notice as well that she will not be "deported" unless she does something like comitting a serious crime. Provided she makes an applicaion before her current leave expires, and makes any appeals in time, then she will not even be an overstayer, so she will be here perfectly legally.

joshbt wrote:

You partner is very young to have completed a three year bachelors course and a one year post graduate diploma!

Of all the people who i have asked for advice on this issue, you are the first to notice that! Many of the dance institutions accept candidates onto there degree programs from the age of 16 due to the need to train at a young age.

Greenie, your suggestion is very clever and did make me smile, but would you genuinely recommend that course of action? It seems a little dangerous?

And Casa, we are not married, and I didn't realise that proof of 2 years co-habitation was required, this would not be possible. We have only lived together with paper work to prove it for 1 year. I guess I also hoped that us having a child would veto this......my naivety showing.

Having said that, we could quite easily get married tomorrow if it would aid our cause..... seriously.

joshbt, I am genuinely suggesting this as a course of action and in no way think it is dangerous. Your partner is so close to the age of 21 then it would be highly likely that she will reach the age of 21 by the time of decison, and will definitely have reached it by the time of an appeal in the event of a refusal. If you havent lived together for two years though, and actually want to get married, then do so as otherwise as Kitty says, they will have to exercise discretion or grant leave outside the rules.

Ok, well that's very clear.

My concern came from the fact that when the application would be submitted she wouldn't have reached the required age.

But just to clarify, you are saying that one can legally stay in the country while any application is being processed, and due to the likelihood that they would not process the application until after her 21st, it would probably be successful?

To do this then, would you recommend getting legal representation, or is it now as simple as applying for the spouse visa (or partner visa depending on our decision with regards to marriage) through ukba?

This has been a great help. Many thanks.

Suggest marriage asap. Subsequently, make a valid postal FLR(M) application shortly before leave expires. Then she should be okay if she meets the requirements on the date of the decision.

Thanks again.

Marriage is booked!

On a side point, can one travel outside of the UK while a visa application is still pending?

joshbt wrote:Thanks again.

Marriage is booked!

On a side point, can one travel outside of the UK while a visa application is still pending?

Nope.

Good luck on the wedding day!