marriage visa and overstay question

[bellaboo]

I wonder if anyone could assist me please as im very confused. My partner and I intend to get married in the new year overseas, However he has overstayed in the UK for 6 years where we are now. He will be leaving the uk on his own accord in a few weeks time, in order for me to follow him to get married and I will then return to the UK and apply for him to join me on a marriage Visa. I am a British Citizen and he is from St Kitts. I qualify for all the requirements of the marriage visa being able to support us etc. The only stumbling block I can see if the overstay. I have been given conflicting information one telling me that they can not refuse on his overstay alone there has to be other factors but then when I have read something else it says overstaying could be a reason for refusal (but then it also said something about spouse it didn't apply) Please could anyone clear this up for me as it is very confusing.

Many thanks I would be so grateful for any advice or anyone who has been through the same circumstances.

[bellaboo]

Sorry I should say that he came here on a visitor visa and his uncle took charge of his passport and was meant to be getting him legal in the country by being is guardian as he has been supporting him however this was not done and my partner feels he has been deceived by his family who have now landed him in with this problem he has not intentionally deceived ukba. His uncle is happy to make statements as to what went wrong as the lawyer dealing, he claims was not informing him and took his money. I was under the impression that if we supplied a valid reason for his overstay by way of a solicitor that this would be sufficient to explain the circumstances.

[superll]

I'm also quite confused, I found this on the UKBA website (http://www.ukba.homeoffice.gov.uk/polic ... 5/#header4) which says:
RFL5.4 When does rule 320(7B) not apply? Rule A320
Under paragraph A320 of the Immigration Rules, you must not refuse an applicant under 320(7B) if they are applying for settlement as a family member under Appendix FM

But on another page (http://www.ukba.homeoffice.gov.uk/polic ... les/part9/) it says:
A320. Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM.

But subparagraph 11 says:
(11) where the applicant has previously contrived in a significant way to frustrate the intentions of the Rules by:
(i) overstaying;

[bellaboo]

Thank you for the reply


Yes its very confusing indeed, I know they have recently changed rules regarding overstay but im still not sure if that includes an application for spouse.

[superll]

No problem, I'm no expert, but going through something similiar so have been trawling the internet looking for answers! I also found this (http://www.ind.homeoffice.gov.uk/siteco ... iew=Binary)

62.2 Voluntary departure at individual’s own expense (one year bans)

Illegal entrants, those who breach a condition attached to their leave, and
those who overstay their lawful leave by more than 90 days, who leave the
UK voluntarily at their own expense are ordinarily subject to a mandatory one
year re-entry ban unless they are applying for entry clearance as a Family
Member (under Appendix FM of the immigration rules) or they were under 18
at the time of their most recent breach (as set out at paragraphs A320 and
320(7B) of the Immigration Rules).

[superll]

Perhaps the key bit is whether the applicant has previously 'contrived in a significant way to frustrate the intentions of the Rules', I found a definition here:
http://www.ukba.homeoffice.gov.uk/polic ... /rfl/rfl7/

[bellaboo]

Thanks again - I understood about the year ban but that does not apply for a spouse visa as far as im aware.

The other bit is interesting tho thank you...

Its a minefield of info isn't It.

[bellaboo]

I just found this not sure if its the same thing your looking for, but it says if they left themselves they can not use it - I think ive understood that correct

on the clearance officers notes:::::

320(7B) The applicant has previously breached UK immigration laws (and was 18 or over at the time or the most recent breach) by:
 overstaying  breaching a condition attached to their leave  being an illegal entrant, or  using deception in an application for a visa, leave to enter or leave to remain,
unless the applicant:
 overstayed for 90 days or less and left the UK voluntarily, not at the expense of the Secretary of State (whether directly or indirectly)  used deception in an application for entry clearance more than 10 years ago  left the UK voluntarily, at the expense (directly or indirectly) of the Secretary of State, more than two years ago, and the date the person left the UK was no more than six months after the date on which the person was given notice of the removal decision, or no more than six months after the date on which the person no longer had a pending appeal, whichever is the later

[Amber]

Paragraphs 320 (except subparagraph (3), (10) and (11)) and 322 do not apply to an application for entry clearance, leave to enter or leave to remain as a Family Member under Appendix FM, and Part 9 (except for paragraph 322(1)) does not apply to an application for leave to remain on the grounds of private life under paragraphs 276ADE-276DH.

[MPH80]

The point that's being made is that a general refusal under 320 is not going to happen for a spouse, with one exception - paragraph 320(11) - which is their catch-all 'you did a whole bunch of bad things' rule to deny entry.

So - providing he hasn't 'contrived in a significant way to frustrate the immigration rules' - he'll be fine.

M.

[vinny]

See also 320(11).

[Amber]

Indeed MPH80, and there must also be aggravating factors.

[bellaboo]

oh thank you all so very much..........i understand now.......no there are no other aggrevating factors ive checked them and he has never done or claimed anything he should not have or been in trouble any other way...its purely just the over stay.

thank you again for the advice and helping me understand more clearly.