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Advice on regularising immigration status needed

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blueorchids007
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Advice on regularising immigration status needed

Post by blueorchids007 » Thu Dec 31, 2015 11:31 am

Hello, new member here. My case is not unique and I know you've heard it a million times, but still, here goes. Came to UK in 2000 on a student visa and I've overstayed since 2001. (14 years). My siblings are British born/citizens, but parents decided to go back to our home country and have me there (my luck). Anyway, I've kept my head low and carried on with life (knowing the risk involved), hoping to use the 14 year rule. Unfortunately, that goalpost got shifted before my 14th year. Got married legally 2 years ago to a British born/citizen and we live together, no child at the moment (still trying). We meet all spousal requirements (wife is a senior accountant and earns more than £50000, I am a network/IT technician and I've worked in the same establishment for 13 years, we've got mortgage, and no criminal convictions, etc). The crux of the matter is that I do not want to go back to my home country and apply from there (I haven't been back since I left), and I don't know whether I can apply via the right to remain based on family life route either. Lastly, I have not once tried to regularise my stay with the HO, so I'm virtually non-existent and a persona non grata. Your advice will be greatly appreciated. Have a happy new year.

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Re: Advice on regularising immigration status needed

Post by CR001 » Thu Dec 31, 2015 11:37 am

blueorchids007 wrote:Anyway, I've kept my head low and carried on with life (knowing the risk involved), hoping to use the 14 year rule. Unfortunately, that goalpost got shifted before my 14th year. Got married legally 2 years ago to a British born/citizen and we live together, no child at the moment (still trying). We meet all spousal requirements (wife is a senior accountant and earns more than £50000, I am a network/IT technician and I've worked in the same establishment for 13 years, we've got mortgage, and no criminal convictions, etc). The crux of the matter is that I do not want to go back to my home country and apply from there (I haven't been back since I left), and I don't know whether I can apply via the right to remain based on family life route either. Lastly, I have not once tried to regularise my stay with the HO, so I'm virtually non-existent and a persona non grata. Your advice will be greatly appreciated. Have a happy new year.
Your best and quickest option would be to return home and apply for a spouse visa.

You have a number of obstacles to overcome and they might work against you. For example :

1. no attempt to regulise your stay
2. Working when you are not entitled to work. How is your employer verifying your right to work? What documents have you provided to your employer proving your right to reside and work in the UK? How did you apply for a national insurance number? This is a big negative against you given that you have worked for 13 years when not permitted to do so.
3. Is your mortgage in joint names?
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blueorchids007
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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Thu Dec 31, 2015 11:48 am

Thanks for your quick response. No, the mortgage is in my wife's name. I've worked under my name all through my years of employment, and I only presented my UK valid driving license when I applied for the job.Thanks again.

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Re: Advice on regularising immigration status needed

Post by CR001 » Thu Dec 31, 2015 12:00 pm

Your employment is a problem, combined with the fact that you are an overstayer with no right to reside in the UK.

Your employer faces a £20,000 fine for employing an illegal immigrant, possibly compounded by the length of employment and not complying with annual right to work checks.

Which begs the question, how did you apply for a driving licence with no legal status?? You do realise that your licence can be revoked.

What is your nationality?
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Re: Advice on regularising immigration status needed

Post by noajthan » Thu Dec 31, 2015 12:07 pm

It's also quite unclear how you can operate within the UK tax, NI, pension system & within the local government (council tax / marriage registration) systems and also within the UK NHS/medical system.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

blueorchids007
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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Thu Dec 31, 2015 12:16 pm

I didn't do anything dodgy in all my applications. I guessed I just slipped through the cracks. I sent my passport to DVLA and got a driving licence. Same with my NI. I've paid taxes and NI contribution for 13 years. I've hardly had need of the NHS since I've been here (Ibuprofen and co help for the niggling aches and pains). I've relatively lived a quiet life with no incidents whatsoever. I was thinking I should qualify for 'right to private life', but seems like your best advice is I go back to a country I've not been back to in 15 years, and all my family/siblings are based here. Confused is an understatement on how I feel about my situation. Maybe I should see a lawyer. :oops: :cry:

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Re: Advice on regularising immigration status needed

Post by noajthan » Thu Dec 31, 2015 12:34 pm

blueorchids007 wrote:I didn't do anything dodgy in all my applications. I guessed I just slipped through the cracks. I sent my passport to DVLA and got a driving licence. Same with my NI. I've paid taxes and NI contribution for 13 years. I've hardly had need of the NHS since I've been here (Ibuprofen and co help for the niggling aches and pains). I've relatively lived a quiet life with no incidents whatsoever. I was thinking I should qualify for 'right to private life', but seems like your best advice is I go back to a country I've not been back to in 15 years, and all my family/siblings are based here. Confused is an understatement on how I feel about my situation. Maybe I should see a lawyer. :oops: :cry:
If you really can't bite the bullet & return 'home' then a European sojourn to a.n.other EU country (with your wife) for 3 - 6 months could solve all your problems.
(For example, think Ireland or Malta or in fact anywhere you may even have some ties).

By taking the Surinder Singh route & moving your 'centre of life' to EU your wife will be able to return to UK in due course as an 'EU citizen' & so EU immigration rules will kick in;
(ie for you when you are back in UK).

Note Your sponsor (wife) will have to work in the EU country (either as an employee or self-employed); it is immaterial what your activity is although, under free movement, you should also have the right to work 'there'.

Wife will ofcourse retain her BC & you will gain legal rights to reside, work &/or study.

So via 'home' or via Europe you are likely to have to move out of your comfort zone, but, even so, 2016 could be your year.
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Thu Dec 31, 2015 12:43 pm

Thanks again for your response. I guess indeed I just got too comfortable with my situation: steady income, steady home,etc, I never bothered rectifying my stay, and I was also scared of being asked to go back. Now that I'm married, its become imperative I sort it out so as to improve my career prospect (I've virtually stayed at my current place of employment for same reason), and be able to further provide for my home. I've decided to spend 2016 exhausting all avenues to fix this. I definitely need an immigration solicitor for sure. I will look at the EU option you've suggested. That's a better option than going back to my home country. Thanks again for all your suggestions.

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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Thu Dec 31, 2015 12:57 pm

Wow! So much information! I guess when one hides under a rock, the whole world just passes by. Just reading on the Surinder Singh route gives me some hope on options available. Thanks! :D

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Re: Advice on regularising immigration status needed

Post by CR001 » Thu Dec 31, 2015 1:27 pm

Bear in mind that even if you do the Surinder Singh route, you will be prohibited from applying for British Citizenship for 10 years from the date that your stay in the UK becomes legal as you fail on the good character requirement.
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Re: Advice on regularising immigration status needed

Post by noajthan » Thu Dec 31, 2015 1:36 pm

blueorchids007 wrote:Wow! So much information! I guess when one hides under a rock, the whole world just passes by. Just reading on the Surinder Singh route gives me some hope on options available. Thanks! :D
Be aware (& as just advised by CR001) Surinder Singh is not a magic bullet for all life's (migration) ills.

You have not made things easy for yourself if you do have ambitions for the privilege of citizenship (as that sits firmly within the UK legal framework not EU).

And the UK government isn't sitting on its hands, for example, the controversial centre of life test is a UK wrapper around the EU system of free movement.
HMG may yet move the goalposts again (as has happened in the past).

To succeed under Surinder Singh you need to plan & ensure you are able to back your case with unimpeachable documentary supporting evidence.
In other words don't leave the HO any 'wriggle room'.

Plenty on SS within the forum if you search & on WWW ofcourse.

Here are good place to start:
https://www.freemovement.org.uk/surinde ... tion-route

(Disclaimer: I have no connection with these website).
All that is gold does not glitter; Not all those who wander are lost. E&OE.

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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Thu Dec 31, 2015 1:45 pm

Thanks. The Surinder Singh route is just an option, since it will require my wife relocating for it to apply anyway. Just glad that there are options to consider. We went to see a solicitor 6 months ago who flatly said no, my case was impossible, before we even sat down in his office. That knocked me back into my shell and I wasn't going to make any attempt till I did 20 years (Yes, I was considering the 20 year rule). Just trying also to be careful and not end up in the hands of charlatans who might want to exploit my ignorance and desperation.

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Re: Advice on regularising immigration status needed

Post by CR001 » Thu Dec 31, 2015 1:50 pm

Even if you manage to stick it out for 20 years, it is not an easy route and your working illegally for the length you have will certainly crop up. HO have access to HMRC and DVLA systems etc.

The 20 year route does not give you indefinite leave to remain (ILR/PR) like the 14 year path would have. The 20 year route is a 10 year path to ILR (4 x 2.5 year visa extensions and associated costs plus health surcharge).
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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Fri Jan 01, 2016 8:02 pm

Happy new year to you all. Still doing my research. Was looking at options and the most obvious (going back and applying from my home country) is not even as straightforward as it should be. The HO is definitely not making it easy for people to go legit! If I go back voluntarily, I will have to wait for 12 months before I can apply without risking a refusal based on my breaking immigration rules due to my overstaying. I'm 38, wife is 35, and our number one priority now is having a baby, of which we have already started treatments for. Going back throws a spanner in that process if I have to stay away for 12 months. Anyway, 2016 is a year that something positive must happen. Thanks y'all, and have a wonderful new year.

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Re: Advice on regularising immigration status needed

Post by CR001 » Fri Jan 01, 2016 8:05 pm

Where does it say you have to wait 12 months? Please provide the link to the source of this.
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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Fri Jan 01, 2016 9:02 pm

CR001 wrote:Where does it say you have to wait 12 months? Please provide the link to the source of this.
I was reading grounds for refusal here https://www.gov.uk/guidance/immigration ... or-refusal and the section 7B (iii)
"(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach)by:
(a) Overstaying;
(b) breaching a condition attached to his leave;
(c) being an Illegal Entrant;
(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);
unless the applicant:
(i) Overstayed for 90 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;
(ii) used Deception in an application for entry clearance more than 10 years ago;
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;"
Unless of course, I am interpreting it wrongly.

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Re: Advice on regularising immigration status needed

Post by CR001 » Fri Jan 01, 2016 9:07 pm

So where does it say you have to wait 12 months after leaving the UK before you can apply for a spouse visa?
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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Fri Jan 01, 2016 9:31 pm

CR001 wrote:So where does it say you have to wait 12 months after leaving the UK before you can apply for a spouse visa?
"(7B) where the applicant has previously breached the UK’s immigration laws (and was 18 or over at the time of his most recent breach)by:
(a) Overstaying;
(b) breaching a condition attached to his leave;
(c) being an Illegal Entrant;
(d) using Deception in an application for entry clearance, leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application (whether successful or not);
unless the applicant:
(i) Overstayed for 90 days or less and left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State;
(ii) used Deception in an application for entry clearance more than 10 years ago;
(iii) left the UK voluntarily, not at the expense (directly or indirectly) of the Secretary of State, more than 12 months ago;"

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Re: Advice on regularising immigration status needed

Post by CR001 » Fri Jan 01, 2016 9:35 pm

You are misinterpreting. It does not say you have to wait 12 months.

Although to be honest, given your circumstances (combination of things), any application you make will come under a lot of scrutiny.
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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Fri Jan 01, 2016 10:35 pm

Maybe I am misinterpreting it. Looking for a competent solicitor for a better explanation. Seems like going back might be the viable option instead of trying to fight from here.

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Re: Advice on regularising immigration status needed

Post by vinny » Fri Jan 01, 2016 10:44 pm

320(7A & 7B) may be exempted under A320, but they may refuse under 320(11).
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Re: Advice on regularising immigration status needed

Post by Obie » Fri Jan 01, 2016 10:58 pm

Yes, 320(11 ) may be unduly harsh. However these days, I will put nothing past the UKVI or the Immigration Tribunal.

I think you can make an in country application, using FLR(FP), and I do not think, giving the facts of your case, that it will be certified.

Surinder Singh may be your best option.
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Re: Advice on regularising immigration status needed

Post by avjones » Wed Jan 06, 2016 3:02 am

If you ask enough solicitors, you will definitely find one who will happily take your money and put in a spouse application, and take more money for judicial review when that is refused.

The test (as you are here illegally) is whether there are "insummountable obstacles" to your married life continuing in your home country.

That is a tough test. Owning a house, working here, your wife being here, none of that is likely to be enough.

For example, I've had refusals in Judicial Review in cases where the spouse has very serious medical conditions as a result of a very bad brain injury, and permanent physical disability from the same car accident. it's that tough.

Even if you do succeed, it's a long, slow route to ILR if you do eventually get a spouse visa in-country. And what happens if your employer takes fright if the Home Office contacts them?

Going back to your country of origin presents no guarantees. But the chances of success and in a reasonable time frame are much higher.
I am not, and cannot, offer legal advice to particular people. I can only discuss general areas of immigration law.

People should always consider obtaining professional advice about their own particular circumstances.

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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Wed Jan 06, 2016 7:47 pm

Thanks @avjones. We are seriously considering me going back and putting in the application from there. I was mostly concerned about the 12 month wait to apply, but from reading the grounds for refusal again, it doesnt seem to apply to application to join FM. Might just be the best option for us going forward. Thanks again.

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Re: Advice on regularising immigration status needed

Post by blueorchids007 » Sat Nov 10, 2018 10:50 am

Hi y'all. This is 2 years late, but felt i should give an update. I bit the bullet and went back May 2017, and 3 months later, I got my LLR based on spouse. I am on the 5 year route to ILR. Thanks to everyone for their advice. Really helped a lot!

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