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Overstayed in the past. Can I return now?

General UK immigration & work permits; don't post job search or family related topics!

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Caramelo
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Joined: Tue Dec 15, 2020 11:45 pm
Brazil

Overstayed in the past. Can I return now?

Post by Caramelo » Tue Dec 15, 2020 11:48 pm

Seasons greetings!

I Arrived in the UK in December of 2016, my tourist visa expired in June of 2017 and I stayed in the country until May 2019. So that's around two years overstay.

It was an absolute nightmare (props to Mrs May and her hostile environments policy). I had a horrible time and I'd never wish it on anybody, let alone do it again myself. During the whole time I was in the UK, I have never had trouble with the home office, never was deported or had any kind of trouble regarding my overstaying.

Somewhere along the road I met an amazing British girl (now my wife) and we decided that it was the time to put an end to that. So I left everything behind and went back to my country (Brazil). The exit through Gatwick was uncomplicated, I was stopped by no border officer, presenting my passport only at the gate, to the airline clerk.

I now have a new passport, with quite some stamps (Portugal, Spain, Italy, Ukraine, Georgia) and it's been 1.5 years since I left the UK, voluntarily and at no cost to the British state.

My question is, how risky is it going back to England to spend holidays with my wife and her family. I'd be flying from Lisbon, Portugal, spend a couple of weeks, and go back to Brazil to spend some time with my family.

I'm terrified of British border control and would be very useful if someone with an immigration law background could shed a light on my case.

Thank you so much, and hopefully can unknowingly see you guys around the South Coast!

vinny
Moderator
Posts: 32758
Joined: Tue Sep 25, 2007 7:58 pm

Re: Overstayed in the past. Can I return now?

Post by vinny » Wed Dec 16, 2020 4:25 am

After a year, it should be okay.
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THO
- thin ice -
Posts: 532
Joined: Sat Feb 17, 2018 12:12 am
Vietnam

Re: Overstayed in the past. Can I return now?

Post by THO » Wed Dec 16, 2020 10:44 am

Caramelo, sorry to contradict you, but a hostile policy is designed to make it hard for people who are illegally here in the UK, that is the point, you were breaking our laws, it was not a case of anyone being nasty to you for no reason.

Did you marry your wife while you were illegally in the UK, because if you did, how was it done since you would have needed permission and getting that would have uncovered the fact that you do not have a right to be in the UK, and so do not have a right to marry here?

Surely you will know if you are able to come back again, when you apply for a visa? I would say though, that since you have a history of overstaying and you now have a wife living here in the UK, that you would seem to be a prime candidate to abscond and then spend years here fighting deportation on human rights grounds. So my opinion would be that your visitor visa will be denied, but I am sure someone with more knowledge will be able to give a definitive answer.

Why don't you apply for a spouse visa and join her legally?

Caramelo
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Posts: 3
Joined: Tue Dec 15, 2020 11:45 pm
Brazil

Re: Overstayed in the past. Can I return now?

Post by Caramelo » Wed Dec 16, 2020 11:16 am

There's no contradiction, I was referring that the hostile environment policy made my life quite hard in the UK, so much that living there was impossible, achieving exactly what May's government wanted. That's how it is, it was a big mistake and I'm way over it and doing pretty well in life now. Anyway...

We married in Denmark this January, on a really uncomplicated and straight-forward process.

I wouldn't know whether a visa would be granted or not because, being Brazilian, I wouldn't apply for a tourist visa. Its granted (or not) at the border.

That's my doubt. I've left the UK on my own initiative and without any costs to the British taxpayer, never had any trouble in the country neither used public services.

I'm not sure I'm a prime candidate for overstaying, because I'm lawfully married to a British citizen, so surely I could just apply for a spouse's visa if wanted? It's her right after all, and we have all it takes for a successful applications (only troubles would be my overstating once).

Of course, a spouses visa is within the cards and we will start the process early in the next year. But for now I just wanted to spend Christmas with my wife and her family.

I'll be grateful for more insightful comments on the matter.

THO
- thin ice -
Posts: 532
Joined: Sat Feb 17, 2018 12:12 am
Vietnam

Re: Overstayed in the past. Can I return now?

Post by THO » Wed Dec 16, 2020 11:34 am

So, is the only way you will find out if you are allowed into the country, is to turn up at immigration and see if you are allowed to stay? The reason I ask this is because I don't know if anyone on here can tell you for 100% sure that the immigration officer will or won't let you in.

So, it would be a big gamble, but I can see that if you are visiting your UK wife, they might see you as not going to go back. Don't forget, firstly the cost of the spouse visa and IHS charges, plus you need to be able to demonstrate high enough income, accommodation requirements and not to mention that the relationship is genuine before a spouse visa is issued, and for all the immigration officer knows, you might not be able to meet those criteria and so just want to circumnavigate the problems, so come on a visitor visa and just not go back.

That is why I think your reasoning is not the same as the officer might have.

Caramelo
Newly Registered
Posts: 3
Joined: Tue Dec 15, 2020 11:45 pm
Brazil

Re: Overstayed in the past. Can I return now?

Post by Caramelo » Wed Dec 16, 2020 1:36 pm

I know nobody here can speak for the immigration officer, I want to know whats the legal understanding, and whether anyone knows of a similar situation and how it went.

I'm 100% living the UK, I'd have an outbound ticket to Brazil, and I have where to stay in the UK, and plenty of money. I don't want to stay in the UK for more than two weeks.

My question is whether I'm likely to have trouble at the border.
Hopefully we can get some knowledgeable inputs!

Thank you so much for taking the time to reply!

THO
- thin ice -
Posts: 532
Joined: Sat Feb 17, 2018 12:12 am
Vietnam

Re: Overstayed in the past. Can I return now?

Post by THO » Wed Dec 16, 2020 1:48 pm

An outbound ticket does not mean you will use it. Having plenty of money is no indication you will return, none of what you have said is going to convince an immigration officer of your intentions to return. Not even having a job to go back to and a holiday form filled in. You overstayed for 2 years previously, and the fact you left of your own accord, is as you said, a result of the hostile environment. The HO did their job.

An immigration officer will consider that as the reason for your decision to leave, and that now you have married someone, just so you have an excuse to come back and not leave this time. I personally think if you can't apply for a visit visa through the UK immigration, so you have it when you arrive, that you do stand a good chance of being sent straight back. Sorry to say this.

I know from personal experience, from trying to get a visit visa for my fiancé which was impossible, and she had never broken any immigration rules of the countries she had visited. She could not prove she would return, as nothing to ensure she left, like a child dependant on her, despite her well paid job and return flights already booked.

My advice, would be go for the Spouse visa as this (so I have read on here) does not take into account previous overstaying.

secret.simon
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Re: Overstayed in the past. Can I return now?

Post by secret.simon » Wed Dec 16, 2020 3:09 pm

Caramelo wrote:
Wed Dec 16, 2020 1:36 pm
I want to know whats the legal understanding
The legal position is that it is up to the Immigration Officer at the airport/border to make a judgment on your in-effect on-the-spot application at the border and they have a wide breadth of discretion in such cases.

If the Immigration Officer sees that you have a history of overstaying, then that application/decision can take a long time. So I would factor in a few hours at the airport if you plan to go down this route.
Caramelo wrote:
Wed Dec 16, 2020 11:16 am
I'm not sure I'm a prime candidate for overstaying, because I'm lawfully married to a British citizen, so surely I could just apply for a spouse's visa if wanted? It's her right after all,
You might not understand just how hostile the immigration environment is.

Just because your wife is a British citizen does not give her an automatic right to have a non-EEA spouse join her in the UK. It is worth keeping in mind that any leave to remain in the UK is never a matter of right, but a grant of the Home Office.

Indeed, the requirements for non-EEA spouses of British citizens are so onerous (such as a Minimum Income requirement of at least £18,600 per annum, etc) that about 40% of the British population do not meet the requirements. There are thus many Skype-only families where the only chance to meet each other is over Skype or by travelling out of the UK.

The fact that you have a British citizen family member (and that applies to many British citizens who have non-EEA parents as well) makes it more likely that you will overstay (because the British citizen family member may support you while you live illegally in the UK) and thus increase the chances of refusal.
I am not a lawyer or immigration advisor. My statements/comments do not constitute legal advice. E&OE. Please do not PM me for advice.

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