Spouse Visa overstayer

[Aron78]

Hi,

I have been married for around 6 months now ( islamic ceremony).
My wife originally came to uk on visitor visa and has been overstaying, she has overtstayed for around 10 years at the time she arrived in uk she was only 14years old. Her parents passed away and rest of her family are based in uk, she does not have any family of friends in her home country.

My question is can we apply for spouse visa from uk? If not what other options do we have instead of her going back to the home country and then applying for visa as she has nothing to go back to in her home country, she was a child when she left.

We are currently living together, i am a British citizen. I work for a private company and i earn 25k yearly.

I will be seing a lawyer but just wanting to find out the options we have.

Reading some forums on here it suggests she does not have many options but to return to her home country and apply for spouse visa which will be a huge issue for us.

Also if we was to have a child together could she apply for visa on that basis?

Thanks in advance for any help.

[Frontier Mole]

In order to access a spouse visa you would have to be legally married. This would involve getting permission to marry from the Home Office. Obviously at some point she will have to tell the Home Office she is in the UK, that will then start the ball rolling. One way or another she will have to go the overstaying process which will probably include an interview and having to report to an immigration centre.

I would guess legal opinion is likely to say that you do not attempt the spouse route as it places all the power with the HO.I doubt the HO would grant the right to marry.

I suspect the more favourable route would be a claim through human rights. That could take a considerable amount of time to process and may involve an appeal and possibly years to get to immigration status.

The quickest and safest way is for you both to return to her country of origin, formally marry and then apply for her spouse visa. Her overstaying and immigration history will be questioned but spouse visa applications have to disregard general overstaying as the right to a family life outweighs that.

Once you take formal legal advice you will be in a better position to judge the best route to take.

[Aron78]

Thanks alot for the reply,

What are our chances through the human rights application? And what route will we have to take?

Also what documents will we need as proof of our relationship? Should i put come of the bills on her name?

[Frontier Mole]

Human Rights claim - her case is not simple as she does seem to fall squarely into a single category. Not having all the facts and history it is impossible to predict any level of success. HR claims are considered weighing the rights of the individual against the proportionality of their removal from the UK.

Your relationship is very late on her immigration journey and not a particularly persuasive reason to remain. It will support her claim but the years spent in the UK, her links with the UK, her integration into society, family links to the UK are the back bone of her claim.

She arrived in the UK at the age of 14, so was a child. There is a 7 year rule for children, if they are here as a child for 7 years then they would have access to FLR. At the point of 7 years in the UK she was no longer a child. So that will not fully meet the need - but it explains the part of her non-adult stay.

Thereafter once she is considered an adult it becomes more problematic - living in the UK for ten years illegally does not give rise to a sure route to FLR. Normally 20 years would. As it stands mathematically she has not spent more than half her life in the UK which is another point of consideration.

As you will see it is a complex area in law and there is substantial policy and legal cases that govern or guide HO decisions. Hence you need to seek proper legal representation

Bills in her name will make little or no difference to an HR claim.

[alana7]

Hi,

I have been married for around 6 months now ( islamic ceremony).
My wife originally came to uk on visitor visa and has been overstaying, she has overtstayed for around 10 years at the time she arrived in uk she was only 14years old. Her parents passed away and rest of her family are based in uk, she does not have any family of friends in her home country.

My question is can we apply for spouse visa from uk? If not what other options do we have instead of her going back to the home country and then applying for visa as she has nothing to go back to in her home country, she was a child when she left.

We are currently living together, i am a British citizen. I work for a private company and i earn 25k yearly.

I will be seing a lawyer but just wanting to find out the options we have.

Reading some forums on here it suggests she does not have many options but to return to her home country and apply for spouse visa which will be a huge issue for us.

Also if we was to have a child together could she apply for visa on that basis?

Thanks in advance for any help.

If she is not yet 25 you may have a claim with FLR FP for compassionate circumstances as she would fall in 276 ADE (1) (V) and prove that she would be unable to integrate back into her country or has no ties any longer. Good luck.

[Frontier Mole]

Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.1 to S-LTR 2.2. and S-LTR.3.1. to S-LTR.4.5. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

[Frontier Mole]

The “qualifying” sub section that appears to meet her circumstances is (vi)

This is a particularly difficult point to work with and the onus is on the applicant to show why there would be insurmountable obstacles on her return.

[vinny]

she arrived in uk she was only 14years old. Her parents passed away and rest of her family are based in uk, she does not have any family of friends in her home country.

Provide evidence of above.

Assessing whether there are ‘very significant obstacles to integration into’ the country of return

[Frontier Mole]

I believe there is little prospect of success if a claim was made through the partner route. Six months as a partner is not going to get any serious consideration.

2 years is considered the minimum period as a partner

[vinny]

Agree, if her (islamic) marriage isn’t valid.