Overstay and now detained, advice on next course of action

[daisymay]

Iam english and my partner Chamila is Sri Lankan. In November we decided to rent a house together as our relationship was now much more serious and we were both in love. We had also decided that we would like to marry. Chamila has been in uk since 2008 on student visa which ran out December 31st 2010. This we were aware of and had planned to renew and change to one of partner. However, just after moving in together my mother was taken ill and admitted to hospital. I was commuting to work and the john radcliffe in oxford to see her but she passed away 23rd December 2010. Everything then went out of my head and Chamilas as he was supporting me and looking after me. Funeral was arranged for January 2011. It was a very very upsetting time but Chamila was my best friend and supported me through it. In february I learned that i needed a hysterectomy. Once again, Chamila looked after me when I came out of hospital. At the end of February, we knew that we needed to sort the visa as soon as possible, so once I could walk a little bit, we went to London to see a solicitor. This solicitor told us he could help and that we needed to put in application for marriage and then he would put in application for visa. We paid him 500 pounds. This application was sent at beginning of March. We heard nothing until July 2011, when we received a letter from the home office stating the application was rejected as marriages no longer needed a certificate. The home office wanted to know why we had not been in contact with them as they had sent this information to our solicitor two weeks previous. When we phoned our solicitor, he was very unhelpful saying he had not heard anything and would look into it. We then received a letter from him a couple of days later returning our documents. When we spoke to him, he said he could not help us. We were both very worried and found another company on the internet that dealt immagration visas. We rang then and explained our situation. They asked if Chamila would go back to sri lanka and apply for a visa but we said we would like to apply from here if possible. They said they could help and they would apply for a discretionary indefinate leave to remain. We had to pay 1250 pounds, non refundable for them to proceed. They began our application and we had to supply documents, letters and photos. We then waited, but heard nothing so emailed the company and pointed out how serious the matter was and it needed to be completed asap. They finally got back to us and said we needed to pay 500 to put the application into the home office. On the day I was due to pay, we had the uk border agency arrive at our house. They had come to arrest Chamila. We showed them all our letters and documents and they were very kind and said they would not arrest Chamila but organise an interview for us both in Bristol. We had our interview on October 25th 2011 and went through all our documention and discussed our relationship. We were asked why we had not yet married and we pointed out, we needed a visa and we wanted to do this legally. There is an age difference between us and I think this makes them dubious about the relationship but we stressed that our relationship is real and we love each other so much. We are best friends, we are happy and we want to spend the rest of our lives together. Chamila was told to report to the police station in swindon twice a month while they decide his case. He has been doing just that. Also in October I had a knee operation which unfortunately has not helped but made it worse. Last week, Chamila had a phone call from immagration, a lady asked if he would go back to Sri Lanka and apply for his visa from there, to which he said at the moment he would like to be able to stay here as he was looking after me when I came home from work because of my knee. Once Im home, Chamila is doing all house work, cooking, making sure I rest my knee. I have to work to support us both. Im now on strong painkillers but have been told I need to go back to hospital as knee is worse. All the immagration lady then said was ok. On Monday 12th December when Chamila went to sign in at the police station, he was arrested. He was detained in a cell for 12 hours before being removed to Campsfield house. I had immagration ring me to go over the same information but was told it was to see whether he should be detained. I told them that he is not a risk and that his life is with me in our house. We know that if he is deported, his passport will be marked and then he wont be allowed back into this country for at least 5 years. If he goes voluntary, then he can apply after about 8 weeks to return but it usually takes anywhere up to a year. He is worried about leaving me but he knows if he goes voluntary then he can arrange our marriage in Sri Lanka and then after our marriage out there, apply for a spouse visa. He has spoken with immagration and I have spoken with immagration and have even said I will pay back the cost of the air ticket when I have the money. All they keep saying is that its under consideration. Chamila is an asset to this country, he is a very talented musician and artist. He composes music and plays over five instruments. We have even wrote a love song. He has his own youtube channel where he posts his music videos and has even been approached by a belguim director about doing a film score. One of his videos currently has over 11,000 views. He would like to be able to study music further in england and to give something back to the community. We would like to get involved in music projects in Swindon. We have converted one room into a music studio. So not only can he write, play, record but he does all the mixing and mastering and editing of the videos I shoot. He is exceptionally talented and gifted.
We know that we should of sorted the visa, but there were upsetting circumstances. In an ideal world, it would be lovely if immagration would say, he can stay in this country and apply for spouse visa, he is no risk, he is an asset to the community and country.
We now have a bail hearing on 30th December. We are now wondering the best course of action, either go with the fact that Chamila would leave voluntary and then reapply so we can marry and carry on living together or make an appeal, quoting article 8 asking for discretionary leave?
Any advice would be very welcome
thank you

[Mr Rusty]

You don't seem to have grasped the difference between getting married, and being given Leave to Remain on the basis of marriage. Since May this year, anyone can get married in the UK without permission from UK Border Agency, but they are unlikely to be given Leave to Remain as a spouse unless they are legally here with Leave to Enter or Remain for more than 6 months. Your partner is not here legally, so his chances of a successful application within the UK are very slim.

Your partner should return to Sri Lanka as soon as possible, and you should go there and marry him. Then he can apply for Entry Clearance as a spouse and his overstay does not mean that he will automatically be refused. It would appear that you should be able to supply sufficient evidence of a genuine relationship, and if you can satisfy the requirements for support and accommodation, and he can pass the English test, he has a reasonable chance of making a successful application. However, he might be considered for refusal on the grounds that he has contrived to "frustrate the intentions of the Immigration Rules". The longer he digs his heels in and refuses to cooperate in his removal, the more likely that he will be deemed to have frustrated the intentions of the Rules. If they have evidence that he has been working or claiming benefits since his Leave expired, that will also count against him.

Others may wish to comment about his chances of staying in the UK on the basis of an Article 8 HR claim, but they seem pretty slim to me. He doesn't have to stay in the UK to be able to post music videos on YouTube or write a film score, he can do all that in Sri Lanka.

[daisymay]

Many thanks for your reply. I do indeed know the difference between getting married and leave to remain. The first solicitor and the visa company were advising marriage and leave to remain. Unfortunately, we do not seem to have chosen advisors well. Its good to have your advice about returning to Sri Lanka as my partner has not been digging his heels in, he has asked and signed papers to return to Sri Lanka but the border agency say his case is still under consideration. He has not worked or claimed benefits while here so the only thing against him is the overstay. We do know he can post videos from sri lanka, i should of edited my post better, it came from my email trying to get advice from someone else.
Once again, many thanks for your reply. He has a bail hearing soon and we hope he will be able to return to Sri Lanka.

[Mr Rusty]

I'm sorry you've had such rotten advice from these people who call themselves solicitors but who will tell you anything you want to hear to get a few hundred quid or more out of you.

I'm not sure what is the point of a bail hearing if your partner has signed a disclaimer to return to Sri Lanka (which is the best thing he could do in the long run IMHO - you will have a few months apart after your wedding, unless you can stay there with him, but then he could be back with you in the UK).

But in the true spirit of Christmas I wish you peace of mind and a better outcome in the New Year.

[daisymay]

Many thanks. We are not sure of bail hearing either but he just wants to get out of the detention centre so he can sort out going home. Our MP has even spoken to immagration and they told him the only option was to go home. So when we spoke with them, we were told the case is still under consideration. I dont know what the hold up is. Unless its because of the holidays. Many thanks again and merry christmas to you.

[Mr Rusty]

If they haven't actually set removal directions, i.e. given him a notice IS151D which specifies the flight on which he will be removed, then as you say, there must be some matter "still under consideration", although it's difficult to see what that might be if he has signed a disclaimer that he is willing to go home. He's in a bit of a Catch-22, because if he has accepted that as his fate, he is unlikely to be released to "sort out going home", and if removal directions have been set then he is unlikely to be granted bail. If UKBA haven't actually set removal directions then, depending on what it costs you, he might as well take his chances at a bail hearing, but the original advice still stands, that if he attempts by whatever ruse to prolong his stay in the UK, it might just prejudice his chances of getting back to you in the future.

[daisymay]

Thank you. We certainly do not want to delay this any further. We just want it sorted either way. He has not been given any notice with flight details. I think we will try contacting immagration again to see why there is a hold up. The sooner he gets back to Sri Lanka, the sooner we can sort our marriage and visa out properly. Unsure now whether bail application is the way to go.
Thank you again for advice. At last getting some sensible, constructive advice.