Certficate of Approval for marriage: Non EEA overstayed

[shandave2001]

Hi
Home Office doesn't properly follow the relevant EC directive (Metock ruling). I m writing for a guy whose English is weak. Any advice appreciated.

An overstayed non-EEA national (he) is living with his EEA national partner as a couple in UK. His EEA partner (non-UK) is exercising her treaty right (employed) for a few months. They have decided to marry, however, he needs Certificate of Approval from the Home Office according to current UK immigration rules.

I have checked Home Office website which says "enforcement proceeding could be started if he (illegal stayed) applies for COA". Should he takes this threat and avoid applying, or go forward and apply for COA? Their relationship is genuine and they don't want to get marry in Church of England.

[Jersey]

He needs to go out back to his country of origin and apply from there for a Fiance Visa which costs 500 or 600 Pounds if I'm not wrong. After that he'll get a Fiance Visa, he can come back to the UK, live for 7 days with his partner, and go to a registrar office to give notice for their planned marriage. They will have to wait another 15 days and then can get married. After getting married he will be able to exercise treaty rights in the UK.

[shandave2001]

Jersey thank u for ur reply. He doesn't want to go back to his country.

Also there is a new development, in a recent case decided by a Senior Immigration Judge Spencer on 13th Oct 08 in AIT, according to which a non-EEA visa national can apply for EEA family permit from a non EEA country (in other words Metock case has started to show its effect). So for EEA family permit no fees is required even from outside the EEA. If one needs this case, John has put a link to it, (see top of the page).

Any practical case where an overstayed/illegal person applied for Certificate of Approval? What I understand if they have:

1: both passports (for identity purpose),
2: EEA one is qualified person (exercising her treaty rights)
3: Genuine relationship with evidence that it is not going to be a sham
marriage
4: No question of public policy or national security

In such a situation, even where non-EEA has overstayed/illegal, the purpose of the relevant EU Directive is fulfilled (as Metock) and HO should grant Certificate of Approval to marry. I haven't come across a case where HO deported a non-EEA in such a situation.

[Jersey]

double posted.

[Jersey]

Jersey thank u for ur reply. He doesn't want to go back to his country.

Also there is a new development, in a recent case decided by a Senior Immigration Judge Spencer on 13th Oct 08 in AIT, according to which a non-EEA visa national can apply for EEA family permit from a non EEA country (in other words Metock case has started to show its effect). So for EEA family permit no fees is required even from outside the EEA. If one needs this case, John has put a link to it, (see top of the page).

Any practical case where an overstayed/illegal person applied for Certificate of Approval? What I understand if they have:

1: both passports (for identity purpose),
2: EEA one is qualified person (exercising her treaty rights)
3: Genuine relationship with evidence that it is not going to be a sham
marriage
4: No question of public policy or national security

In such a situation, even where non-EEA has overstayed/illegal, the purpose of the relevant EU Directive is fulfilled (as Metock) and HO should grant Certificate of Approval to marry. I haven't come across a case where HO deported a non-EEA in such a situation.

It's no up to him to decide if he wants to go back to his country, it's the reality. He can't apply from the UK (especially because he's overstayed) for a fiance visa, he'll have to do it from his country of origin.

Otherwise, I suggest your friend to marry his partner in a different EU country and then back to the UK and apply as a Spouse.

[thsths]

An overstayed non-EEA national (he) is living with his EEA national partner as a couple in UK. His EEA partner (non-UK) is exercising her treaty right (employed) for a few months. They have decided to marry, however, he needs Certificate of Approval from the Home Office according to current UK immigration rules.

This is a chicken and egg problem. Without a legal status, it is risky to apply for a CoA, but without the CoA he cannot regularise his status. To be honest, I think that this is a very much an intended effect of the law.

I think it is still possible, but it is a question of timing. If he applies for a residence card first (using form EEA2), that will take about 6 months. The pending application should prevent any enforcement. Then he can apply for the CoA, which takes about 6 weeks. Another two, and he can be married. Then he can forward the marriage license to the UKBA to complete the application.

Any comments on this approach? Or is there a better application to use as the first step?

[isceon]

An overstayed non-EEA national (he) is living with his EEA national partner as a couple in UK. His EEA partner (non-UK) is exercising her treaty right (employed) for a few months. They have decided to marry, however, he needs Certificate of Approval from the Home Office according to current UK immigration rules.

This is a chicken and egg problem. Without a legal status, it is risky to apply for a CoA, but without the CoA he cannot regularise his status. To be honest, I think that this is a very much an intended effect of the law.

I think it is still possible, but it is a question of timing. If he applies for a residence card first (using form EEA2), that will take about 6 months. The pending application should prevent any enforcement. Then he can apply for the CoA, which takes about 6 weeks. Another two, and he can be married. Then he can forward the marriage license to the UKBA to complete the application.

Any comments on this approach? Or is there a better application to use as the first step?

I agree with thsths .The certificate of approval for marriage cannot be refused if the intended marriage is genuine even for overstayers.
However ,if he can apply before for a residence card as a partner of an EEA on durable relationship he would have temporary leave because of that application he cannot be removed.
Good luck

[shandave2001]

Thank u thsths and isceon.

I think that is the only solution in this situation, namely to apply first for EEA2 based on duarable relationship.

Now in regard to UK immigration rule of "durable relationship akin to marriage where parties have lived together for 2 years in UK":

Which sort of evidence should he send to prove durable realtionship existed for two years (take into account Non EEA is without immigration status, so unlikely to have many evidence on his own)?

In case if there is an effort of deportation by the Home Office in such a case, couldn't an injunction be asked from the High Court because such a removal step will be contrary to all 3, namely:
1: relevant EU directive (2004/38/EC),
2: Landmark Baiai judgement by HL: 30th July 2008,
3: and Metock case by ECJ

[thsths]

Which sort of evidence should he send to prove durable realtionship existed for two years (take into account Non EEA is without immigration status, so unlikely to have many evidence on his own)?

The best would be shared bank statements and utility bills, and lots of them. However, I think it does not really matter, because applications of unmarried partners are usually refused unless they have a previous legal status. Whether that is compatible with European law is a question under discussion. Still, while the application is pending, he should be safe.

In case if there is an effort of deportation by the Home Office in such a case, couldn't an injunction be asked from the High Court because such a removal step will be contrary to all 3

I would think so, but I would ask a solicitor about the details.

Tommy