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Discretionary or get married?

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KC28
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Discretionary or get married?

Post by KC28 » Fri Sep 23, 2011 9:15 am

Hi all,

I am a US citizen and have lived in Britain for 9 years: 7 years on a student visa (undergraduate and PhD) and 2 years on Post Study Work visa.

I've been employed the whole duration of PSW and am now starting a new job. Problem is PSW ends the 31st Dec 2011 and my new employers can't obtain Tier 2.

I have a partner of 2 years, although we won't have been living together for 2 years until late January 2012. Also, my work was based a 3 hour drive away from home so I only came back to live with partner on weekends for the last year or so; my bank statements, car insurance etc. still went to his address. The current job means that we will now live together.

My lawyer is suggesting applying for Discretionary Leave based on my "Right to family and a personal life" but having read many of the posts here, I feel my case is shaky. The lawyer feels that even if refused, they can drag out appeals until Sept 2012, by which point I will be able to apply for settlement. Although not the favoured option for us, would it be better to get married pretty fast and apply for spouse visa? Or would getting married a few months before the visa expiry date look odd?

Please help! I've just finally landed a dream job and the chance for my partner and I to live together full time and all this immigration hassle is getting too confusing.

Thank you.

geriatrix
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Post by geriatrix » Fri Sep 23, 2011 9:24 am

Do you wish to marry your partner and live your life with him/her? Then the answer is simple ....

You would still be able to apply for settlement under long residence (next year) when on FLR(M) leave.



Alternatively, contribute to solicitor's profits!
Life isn't fair, but you can be!

KC28
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Post by KC28 » Fri Sep 23, 2011 9:42 am

I guess I just would be hoping for a nice wedding with friends and family someday, not a rushed job at the registry office with two witnesses. He's being a good sport about it and has said he'll do whatever it takes, I just feel bad imposing it upon him and his own idea of a wedding.

Lucapooka
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Re: Discretionary or get married?

Post by Lucapooka » Fri Sep 23, 2011 9:44 am

KC28 wrote:My lawyer is suggesting applying for Discretionary Leave based on my "Right to family and a personal life" but having read many of the posts here, I feel my case is shaky. The lawyer feels that even if refused, they can drag out appeals until Sept 2012, by which point I will be able to apply for settlement.
If you apply for DL and a decision is not made before you reach 10 years, you are permitted to vary your application for leave to remain under long residence and thus qualify for ILR. However, if you apply and are refused, you can't vary your application and would need to submit a new application under long residence. You are not permitted to do this when you have an outstanding appeal. Obviously if you withdraw the appeal and apply you will not have valid leave under 3c and the application based on unbroken long residence will be refused. Or maybe you lawyer thinks that he can win the appeal.

2.3.6 Cases where an applicant completes 10 years continuous lawful residence or 14 years continuous residence while awaiting a decision on an application or appeal

KC28
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Post by KC28 » Fri Sep 23, 2011 9:52 am

Thanks Luca, those are exactly the grounds I feel makes the case shaky. I can't imagine something like that dragging on for a year. If it falls short of next Sept, I suppose I would be totally stuck? I gather I wouldn't be able to get a spousal visa then if I got married next year in desperation as I will be overstaying my welcome?

mrlookforward
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Post by mrlookforward » Fri Sep 23, 2011 10:18 am

Your solicitors idea is totally flawed and by suggesting this, it shows that he doesn't understand the rules properly.

Lucapooka's advice is sound and I fully second it. There is no chance that you will get DL based on article 8.

Nowadays many stupid advisors give false hope to applicants by citing article 8, not to mentions a packet of cash for themselves. They just portray everything as an article 8 claim that can be won. If you go by their instinct to make money, then everything is an article 8 claim. Even eating an ice cream in towncentre on a sunny day is in a way a human right (enjoyment of private life) and arguable in a court. So is just sitting on a sofa in your house and watching tv is a human right (enjoyment of private life). Absolutely everything is Article 8.

The application will be refused and you will receive a decision very soon. Appeal will be finalised within 3 months, and while appeal is pending you can't apply on 10 years basis. If you withdraw the appeal, or loose the appeal (which you certainly will) you will be an overstayer=dead end=no chance of anything+you have spoiled everything.

mrlookforward
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Post by mrlookforward » Fri Sep 23, 2011 10:33 am

By the way, when will you complete your 10 years?
On a personal note, Why not do a quick wedding in register office, and then at a later date do the "full works" on a later date in a church wedding or blessing or something :)

KC28
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Post by KC28 » Fri Sep 23, 2011 10:34 am

Mrlookforward, what's that name all about! That's a bleak forecast :)
But seriously, I'm glad you've both confirmed my instincts on all this. I'm no lawyer but I can't help feeling like I would be starting to do the wrong thing by going down this DL route.
Thanks.

KC28
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Post by KC28 » Fri Sep 23, 2011 10:35 am

Will have completed the ten years in mid September.

mrlookforward
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Post by mrlookforward » Fri Sep 23, 2011 10:56 am

So that means a shortfall of 9 months. I would say, applying for DL to cover 9 months is a long shot and will most likely be fatal. I ain't clued up about PBS student route, but if possible you could look into further extending using study route for another year or more. Other members might be able to advice.
But I would stress once more, please do not follow the idea of DL article 8 route. Would be bad if you put yourself into a tricky and impossible situation after being in UK for 9 years.

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