How To Apply For Discretionary Leave To Remain

Hi all,
I am a Nigerian, I arrived this country in 2003 without a visa (undetected), my wife, a Brazilian arrived in thesame year with our 6 year old son on a visit visa, which she later converted to a student visa, and she has been renewing that visa every year (about to expire again in January 2011) and none of us has left the UK since. We had a another child in 2004 who is now 6, and our first child is now 13.
I know that I do not qualify to apply for any visa within UK Immigration Rules, but I hear that I could apply for Discretionary Leave, based on article 8 of the Human Rights Law.
I presently cannot afford a Solicitor to take this matter up for us as we are presently living from hand to mouth, I am therefore considering doing this myself, however I do not know where to start, what forms to download and so on.
I beleive the time has come for me to present myself and face this matter sqauerly, it is getting increasingly difficult to survive without papers and I can no longer remain clandestine. I know it would be wise to employ the services of an expert but we are still struggling to make up the HO fees. So please help me out with information on what steps I need to take for myself?
Thank you.

Just before I start - can I just clarify the situation - as I want to be clear about the wife and kids:

You - Nigerian citizen, illegally in the UK
Your wife - Brazillian citizen, legally in the UK on tier 4 visa.
Child one (13 yo) - ? citizen, legally in the UK as dependant of wife?
Child two (6 yo) - ? citizen, legally in the UK as dependant of wife?

Ok - you're right - you really do need a solicitor for an article 8 application as if it's not carefully prepared it's likely to be turned down initially and have to go to appeal.

AFAIK - you need to make the application on FLR(O) form (which covers all other application types) with a strong cover letter, and evidence of the family, kids and the fact you're their father etc. The children are strongly in your favour.

However, since your wife is not on a visa leading to settlement, you may struggle to prove that you have a established family life, because her course and visa here may come to an end at some point and she would then need to return to Brazil with the children, and this would be a known/accepted risk for her and the kids. This means they might have cause to refuse article 8 as she isn't making the UK her permanent home yet.

If you are living hand to mouth (and care barely find the HO fees) - how is it you are going to prove that she has sufficient funds for the new student visa?

http://www.ukba.homeoffice.gov.uk/study ... /how-much/#
http://www.ukba.homeoffice.gov.uk/study ... ts/family/#

It looks like she needs to show 2 months funding - which is £1200 and for two kids - a further £800 - meaning £2000 in the bank.

M.

Hello there,

You will need to fill out form FLR(O) and sent it by post on next day delivery, form cost 500 pounds. Along with the form you will need to write a letter explaining your situation to them, perhaps your wife could also write a supporting letter. Also if you have your name on your kids birth certificate then also include that in your letter and get the original birth certificate copy if you can and sent it together with the application form.

Your 6 year old kid was born here so that counts heavily on your favour. Also try and include letters from friends and family if you have one in the UK. Baically you have to try and show that you have settled here in the UK.

You are basically asking the home secretary to give you discretion and you have to try and show that you're settled here. The home office could turn around and say that you could take your family back to Nigeria or Brazil where your wife is from and live there, therefore you have to try and convince them that you're better off here.

The more supporting letters from friends, pastor, family etc the better. Also include utility bills, tenancy agreements, photo-graphs etc. Basically anything that you feel can support your application. If your wife is studying then perhaps a letter from her college/universtiy stating she is studying there because that could be one reason why you prefer to be here in the UK.

If your wife is studying and kid born here you may have a good chance of being granted 3 years discretionary leave to remain but it all depends on how you put your situation in writting, wording it perfectly plus supporting evidence as ive stated above.

What ive just told you is what you would have paid to hear from solicitors so do everything ive said and double check everything and you should have a good chance.

Good luck brother, hope all goes well.

Many thanks MPH80 and Highlanderz1,
Very helpful advise indeed. Yes the details below are correct;

Me - Nigerian citizen, illegally in the UK
My wife - Brazillian citizen, legally in the UK on tier 4 visa.
Child one (13 yo) - ? citizen, legally in the UK as dependant of wife?
Child two (6 yo) - ? citizen, legally in the UK as dependant of wife?

My wife will not be renewing her student visa when it expires in January 2010, she can not continue studying at the moment due to several difficulties, so we are both going to enter this application as a family with children.

My Brazillian Leave has expired, and my wifes temporary Nigerian Permit has also expired, so we are left with few choices indeed.

I will be following Highlanderz1 directions.

Thank you indeed.

I understand the fact that you can barely raise the FLR(O) fee. Having said that, I am of the opinion that you need the help of a solicitor in a case like this. Contrary to what you are told earlier, you have no right of appeal, if you get refused(as you haven't got a valid leave to enter/remain).

Think deeply about this before you declare yourself and your whereabouts to the HO.

Best of luck brother.

Hi HRY2005,

Like you pointed out, I have also heard that one does not have the right to appeal if application is refused in my circumstance, but I have been reading up the case of Chikwamba vs Secretary of State, she had no status when she applied to the HO yet her case was decided in an appeal.

I also recall some Solicitors that I consulted in the past who cited similar cases like mine which they won in the appeal stage - whether true or not! But it does seem to me that there will be avenues.

Cheers!

how about the immigration service at citizens advice bureau?

anudo wrote:I have been reading up the case of Chikwamba vs Secretary of State, she had no status when she applied to the HO yet her case was decided in an appeal.

AFAIK, a caseowner would need to make an ''Immigration decision'' to generate a right of appeal(Section 82, Nationality, Immigration & Asylum Act 2002). A refusal of an application, made when the applicant have no valid leave at the time of application is not regarded as an ''Immigration decision'' and there will be no right of of appeal.

If as a result of you submitting an application, the HO issue an enforcement/removal direction, it will be regarded as an ''Immigration decision'' which comes with a right of appeal.

You mentioned ''Chikwamba'' but dont forget that Chikwamba was an asylum seeker which gives appeal rights. Solicitors do challenge refusal/decision where there is no right of appeal by way of ''Judicial Review''.

That is why I wouldn't suggest you take on the HO in case like yours without the help of an expert (immigration). Like Skyepark already suggested, why not try the IAS(Immigration Advisory Service), there might be help available.

I wish you the best.

Thanks Sky anf Hry, I shall approach the Advisory Service imediately.

I still have one question HRY2005;

If I submit an application and the HO refuses; will they not automatically issue a removal direction, which as you say, will then be an immigration decision which gives a right of appeal? Will that not ammount to the same thing as having the right to appeal following a refusal?

See also Nasire, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3359 (Admin) (21 December 2010) and associated cases, relating to rights of appeal.

It all depends my brother. The HO are now very sneeky in cases like that. They tend to refuse DL applications in cases like that and advice the applicant to leave the UK on a given date or as soon as possible without issuing a removal direction. In doing that, the HO is avoiding making an ''Immigration decision'' and avoid given the right of appeal.

You definately need someone who knows the rule (a lawyer) to guide, present and argue your case, do not dare the HO. They might issue a removal direction at the end of the day if you dont do anything about it but I have heard of cases where the HO would just refuse and advise the applicant to leave without issuing a removal direction.

I see! Thanks for that link Vinny, quite and eye opener.

[quote]They tend to refuse DL applications in cases like that and advice the applicant to leave the UK on a given date or as soon as possible without issuing a removal direction.

I see! Thanks for that link Vinny, quite an eye opener.

Does anyone have a slight idea of how to put a letter of discreation together base on human right article 8?

yusfaith wrote:letter of discreation

What do you mean?

If there is anyone in the forum who have applied for discretional leave before can advise on how to write the covering letter. Though, the case may vary but just an idea.

yusfaith wrote:Does anyone have a slight idea of how to put a letter of discreation together base on human right article 8?

Your letter is required to tell about your life before coming to the UK, and how life is like since coming to the UK.
This should be structured around work and family life.