What are the available options?

[uchida]

Hi Guys,
I sincerely apologise if there's already an existing post I should've used for this query.

The matter at hand involves a close friend. He entered the UK in 2002 and overstayed his visa. He married an EU national in 2008, but the his application for a stay was rejected by HO on the grounds that his partner was still legally married to another man, hence the marriage was null and void. He didn't know his wife was married to someone else, and she said it must've been her sister that has used her passport to arrange a sham marriage...That's neither here nor there at the moment, because the application was refused.
They made another application to the HO on the basis of living as partners. That application was also refused in 2013 by HO, citing that he has failed to prove he has a durable relationship with an EEA national. It further states that they don't believe they live together. He was given a right to appeal, which he applied for, but his partner decided not to attend the hearing because she was scared of being detained on charges of polyandry. She decided to move back to her home country, and asked my mate to come with her (but he can't because he doesn't have travel documents) The tribunal held a oral hearing, and found in favour of HO. The decision was communicated to his solicitor and himself. He has had no communication whatsoever from the HO since the hearing in 2013.

My questions are: why has HO been silent ever since the hearing? what sort of options are available/open to my mate? his EEA partner is 3 months pregnant with his child, but lives in Holland (she visits him twice a month), can he reapply for regularisation of his stay when the child is born and his partner moves back to the UK? does article 8 (a la Chikwamba) apply in that instance (when he has the baby).

Thanks guys, in anticipation of your responses. Please no trolling

[uchida]

Hi Guys,
Anyone there? Any suggestions or advice will be greatly appreciated.

[Wanderer]

Polygamy is illegal, it's up to the parties to ensure they are both free to marry, no excuses here, no issue.

[uchida]

Polygamy is illegal, it's up to the parties to ensure they are both free to marry, no excuses here, no issue.

Hi Wanderer, Thanks for your response. I believe this to be a case of polyandry, because it's the woman that has been adjudged to have an existing marriage, hence renders any other impending marriage null and void, unless she manages to divorce her first husband (who has gone AWOL) The option of divorce from her first husband is none existent.
What's your view on the Article 8 argument? what are the strengths and weaknesses?

Wanderer, I must say, I was a bit worried that you might troll this thread because your reputation sort of precedes you. I do admire your ability to clearly articulate your point of view, and put forward a sound argument, albeit it being flawed a few times.

[Casa]

Actually under British law it is possible to divorce a missing husband or wife.
https://www.gov.uk/divorce-missing-husband-wife

[uchida]

Actually under British law it is possible to divorce a missing husband or wife.
https://www.gov.uk/divorce-missing-husband-wife

That's really helpful Casa. I'll put forward this option to him....You're such a star.

[Casa]

Welcome.

[uchida]

Actually under British law it is possible to divorce a missing husband or wife.
https://www.gov.uk/divorce-missing-husband-wife

That's really helpful Casa. I'll put forward this option to him....You're such a star.

Hi Casa,
I have just spoken with my mate over the phone about the option you advised. He said a divorce has been made, but the divorce papers only came out two months after they both got married (which then renders their marriage null and void) He tried re-marrying her at the church they did it the first time, but was denied. Is it safe for him to try to re-marry her in registry? He thinks he'll be arrested if he applies to re-marry at a registry, asides his partner has moved back to Holland. Sorry if this sounds a bit complicated.

[Casa]

I understand by what you've written, that he didn't wait for the Divorce Decree Absolute before entering into another marriage. Under recent changes, if he decides to marry in the UK, this can only take place in a Home Office designated Registry Office. The Registrar is legally required to notify the Home Office and the authorities could then extend the notification period to 70 days while they investigate the validity of the relationship. He would probably be interviewed by Home Office officials before the wedding is able to take place. If his unmarried partner relationship is no longer subsisting and his partner has left the UK then he currently has no legal status here, which I'm sure he's aware.

[uchida]

I understand by what you've written, that he didn't wait for the Divorce Decree Absolute before entering into another marriage. Under recent changes, if he decides to marry in the UK, this can only take place in a Home Office designated Registry Office. The Registrar is legally required to notify the Home Office and the authorities could then extend the notification period to 70 days while they investigate the validity of the relationship. He would probably be interviewed by Home Office officials before the wedding is able to take place. If his unmarried partner relationship is no longer subsisting and his partner has left the UK then he currently has no legal status here, which I'm sure he's aware.

Hi Casa,
He's had no legal status since his visiting visa expired a while ago. He thinks and knows re-marrying might be an extremely difficult option, hence the enquiry into the Article 8 option.
His unmarried partner is pregnant with his baby at the moment. She's in Holland. She can/will return to the UK if he requires her to. Does he have a right to regularise his status when the child is born, citing Article 8 and the need to be with his natural child? I was thinking of the Chikwamba ruling under Article 8. Does this ruling apply to my mate, when his unmarried partner gives birth to his child? If indeed he can apply via this ruling, what form will he be required to submit?...Cheers Casa, you're too cool for school

[Casa]

I don't see how he will be able to claim that his right to family life is denied as the mother of his expected child isn't living in the UK. My view would be that he should be applying to live in Holland, but other members may have other advice.

[uchida]

I don't see how he will be able to claim that his right to family life is denied as the mother of his expected child isn't living in the UK. My view would be that he should be applying to live in Holland, but other members may have other advice.

The mother of the expected child can and will move back to the UK. He cannot travel to Holland. My question really is; is he able or fulfil the criteria for Article 8 vis a vis chikwamba (or indeed any ruling of that nature)...bearing in mind he will have a UK born baby to an EEA national. Thanks thus far, Casa