Overstayer bf, British Citizen, British children. Complex!

[Bunny82]

Hi,

I've been reading these boards for a little while now, but I can't find a similar situation (not recently, anyway). I'll try to give as much detail as I can as I require good advice. Sorry if I come across as abrupt or anything, but I write 'short' when giving facts.

I'm a British citizen (from birth). I've been separated from my husband (British) for 3 years and am in the final stages of divorce (all ready to go for nisi & absolut, just waiting for him to sort his finances, but I can basically go for nisi now if I wanted to).

I have 2 British children, aged 9 and 5, both are in school. The eldest is classed as disabled (ASD but yet to be officially diagnosed) and has special provisions at school, including 1:1 support throughout the day. The youngest is currently in the midst of a referral for an Educational Psychologist to assess further action as has slight difficulties too.

I am in a relationship with a non-EEA citizen, who has overstayed his visa. We are a few weeks away from living together.

My children and him have bonded very well & very quickly.

He is adding me to his bank account so it will be joint.

So my need for advice is this:

I'm aware that I have to add him to my tax credit claim. This will make him 'visible' to the authorities won't it?

With that in mind, is it possible to still make the 2 years period of living together to prove our relationship?

Are there ANY circumstances that will allow him to obtain a regularised status (leave to remain) sooner than the 2 years? (Not marriage - the new rules of 70 days clearance will probably scupper that anyway). I mean, does it absolutely have to be 2 years living together or are there instances where earlier than 2 years will be allowed?

We have our 'worst case scenario' plans already, but I guess I'm kind of hanging on to the hope that we can do this with him still here because the children will find it extremely difficult if he's 'ripped away'.

Any advice on this would be great. I know the odds are stacked, but I need to know the options.

[CR001]

does it absolutely have to be 2 years living together

For an unmarried partner visa, it has to be the full 2 years of living together 'in a relationship akin to marriage', there is no discretion.
He also might not be able apply for this visa from within the UK as he is an overstayer. How long has he been in the UK, what was his previous immigration visa history?

There are no guarantees that the visa will be granted. You would also have to earn a minimum salary of £18,600 per annum for him to qualify for this visa and provide evidence of this for at least 6 months. Only certain benefits qualify as an exemption from the financial requirement and child tax credits isn't one of them. What other benefits do you claim?

[Obie]

He also cannot apply for this visa from within the UK as he is an illegal immigrant.

Not sure that is right. You may wish to reconsider as it does not seem correct.

[CR001]

Obie, wouldn't it follow the same logic of spouse visa when someone is an overstayer? It is often advised on the forum for the spouse to return to home country and apply. One would think the same logic would be applicable for the Unmarried Partner visa if the applicant is an overstayer. The OP doesn't live with the partner as yet, so it would be two years before this visa could be applied for.

If it is possible, then I do apologise.

[Casa]

I would have to agree with CR001, especially as the children aren't his. Are you able to marry in his home country once your divorce decree absolute is granted and apply for a spouse visa from there? That's assuming you can meet the minimum income condition or have savings over £16,000 to make up the shortfall. The spouse visa fee is currently £956 + £600 NHS surcharge.

[Obie]

Obie, wouldn't it follow the same logic of spouse visa when someone is an overstayer? It is often advised on the forum for the spouse to return to home country and apply. One would think the same logic would be applicable for the Unmarried Partner visa if the applicant is an overstayer. The OP doesn't live with the partner as yet, so it would be two years before this visa could be applied for.

If it is possible, then I do apologise.

Yes both the private and family life route don't require a person to have a regular status in the UK in order to be able to apply from within the UK.

This is my only area of contention about your post.

I accept that the OP may need to demonstrate that certain mandatory requirement such as relationship requirements are met.

He will fail, not because of his irregular status, but because he will be unable to demonstrate that he meets certain mandatory requirements.

The rules incorporate Article 8 requirements as opposed to the old paragraph 284 which did not.

The old paragraph 284 indeed require a lawful status, but Appendix FM does provide an exemption.

[Casa]

So to sum up, what we're basically saying here is that as he doesn't qualify for an Unmarried Partner Visa (not currently living together) and they have no children together, an application from within the UK would stand little or no chance of success.

[Obie]

So to sum up, what we're basically saying here is that as he doesn't qualify for an Unmarried Partner Visa (not currently living together) and they have no children together, an application from within the UK would stand little or no chance of success.

You are expressing a view which was never under debate.

I simply stated that to say as Cr001 puts it " An illegal immigrant cannot apply from within the UK " is wrong in law and not consistent with the rules.

I also have issue with the contention that a person cannot qualify unless the child is their biological child.

The rules or the act does not accord with that. A child can also be a person's step child, provided they have a genuine and subsisting parental relationship with the child.

Even if a person does not meet the conditions of the rules, they may still qualify outside the rules, depending on the circumstances of their case.

I have never questioned the advise that if the OP does not meet the mandatory relationship requirement, he will qualify under the rules.

I never suggested that for 1 minute.

[Casa]

Obie, I was attempting to confirm that we were all on the same lines for the benefit of the OP and to avoid any confusion. I assume that as they are not living together as a family it would be difficult to prove that the overstayer has the role of a 'parent' to the children...joint care and responsibility etc.

[Obie]

Obie, I was attempting to confirm that we were all on the same lines for the benefit of the OP and to avoid any confusion. I assume that as they are not living together as a family it would be difficult to prove that the overstayer has the role of a 'parent' to the children...joint care and responsibility etc.

Well again Casa I agree with you 90%.

If a person spend a dad with a child, take them to school or hospital, and plays a father role in their lives, and probably puts food on the table.

He may reasonably be said to be qualifying parent . It will all depend on the circumstance.

However i accept that giving the facts of the case of the OP , there will indeed be a lot of hurdle for him to overcome, and the chances of success are pretty slim.

[Bunny82]

Thanks for your replies

We are aiming for the "2 year living together" situation to prove the relationship. that is our main plan.

During our time living together he will be a major part of the kids' lives. He already has been (as much as he could be, living 165 miles apart), more so in fact than their own biological father. He's attended support meetings with the school, school plays, done the school run with me when he's here etc. It's got to the point where him coming here every week or me going to him with the kids once a month just isn't enough for us, hence why we're going to live together. Skype just isn't cutting it anymore lol.

With the main plan in mind, our only concern was him having to go back before we get to complete the 2 years "proof", because I'm worried that the tax credits claim will be like a red flag and alert the authorities that he's here. Which is why I was asking to see if there would be any exceptional circumstances within the 2 years that would allow him to stay.

Our "worst case scenario" was that we'd both go back to his home country, get married & I'd have to come back and wait for a spouse visa to be granted. But we want to try to avoid this option because of the disruption to the children (they find it hard enough not seeing him for a week). however, we are fully prepared for it.

(Well, actually our absolute worst case scenario is that I'd have to move to his home country. The kids would find that extremely difficult, but ultimately it is being together as a family that is our goal).

I do get carer's allowance as I'm my daughter's carer.

[Casa]

Without appearing to be overly pessimistic, before you enter into a joint bank account you should be aware of the Government's intention that banks will be required to do more to check bank accounts against databases of people in the UK illegally. Also to quote:
A new offence of illegal working will also be introduced to close a loophole that means people who are in the UK illegally cannot benefit from working and their wages will be given the same status as a proceed of crime so making it subject to seizure by police.
Your tax credits claim may well flag up his overstay with the authorities as all information is shared between Government departments.
The new Bill due to be read on 27th May in the Queen's Speech is likely to be a lot tougher for those who have no legal status.

[Bunny82]

Without appearing to be overly pessimistic, before you enter into a joint bank account you should be aware of the Government's intention that banks will be required to do more to check bank accounts against databases of people in the UK illegally. Also to quote:
A new offence of illegal working will also be introduced to close a loophole that means people who are in the UK illegally cannot benefit from working and their wages will be given the same status as a proceed of crime so making it subject to seizure by police.
Your tax credits claim may well flag up his overstay with the authorities as all information is shared between Government departments.
The new Bill due to be read on 27th May in the Queen's Speech is likely to be a lot tougher for those who have no legal status.

Thanks casa. So it might be best to not add me to his account then? It's not an issue for us to keep our accounts separate, just thought it might add weight to proving a relationship when the 2 years has passed.

The tax credits is probably the main sticking point, but I guess what will be, will be. Even if we only get a few months together until we go to our 'plan B', it'll be worth it. Neither of us want to chance me getting into any trouble in 2 years time if I had stuck with a single claim, so there's no other choice.

[Bunny82]

Further to my other post http://www.immigrationboards.com/genera ... l#p1191506

I've been looking at appendix FM (ready for when we apply in the future - yes I know it could change by then, but I like to keep these things in mind) and I want to make sure I'm reading it correctly. https://www.gov.uk/government/uploads/s ... inal_2.pdf

In GEN.1.2 it gives the definitions of a partner, with (iii) being a fiancé(e).

Now, the way I read it is that a partner is any of (i), (ii), (iii) OR (iv).

So if a couple are engaged (genuinely, of course), is the 2 year cohabiting rule not actually required and an application FLR(FP) can be submitted in the same way as a spouse?

[Casa]

It's referring to someone who has applied to enter the UK as a fiance on a 6 month visa prior to marrying here. You can't apply or qualify for a fiance visa from within the UK.

[Bunny82]

Thanks casa