EEA2 "Durable Relationship" and overstay with crim

[deltauk]

I came to UK on a student visa in 1998. Finished my undergraduate degree in 2003 and graduated in 2004. After that I applied for PHD visa (student) which was valid it July 2006. Due to unforseen circumstances I had to leave PHD and I started working full time whilst on student visa.

At the time of my renewal of the previous student visa i got hold of some fake university document to extend my student visa, I sent my application and after 9 months or so i had immigration on my door, arresetd me and charged me with "applying for further leave to remain by deception".

I went to court and got sentenced to 4 months custodial sentence for using fake documents to apply for FLR.

I was also served removal -- IS151A

During all this i met my girlfriend EEA citizen (now my fiancee) in September 2004 and we started living togther from November 2004 (co-habiting).

The reason i used fake documents and not went throught the route of applying on my then girlfreind's route was that i didnt want her to think that i am with her just because of a visa. It is a genuine relationship and that's what matters to me most.

So in Feb 2007 when i got charged my immigration lawyer quickly filed an application for a Durable relationship extended family visa. In august 2007 my fiancee got her passport back with the approved residence card and i am still waiting for mine.

I have been reading on HO website the European Casework Instructions --

Regulation 8 of the 2006 Regulations covers partners of EEA nationals, i.e. common-law partners and same-sex partners when no Civil Partnership has been entered into but the third country national is in a ‘durable’ relationship with the EEA national.

Under no circumstances should a person be granted a residence card on the basis of a durable relationship if s/he is not lawfully resident in the UK at the time that the application is made.

Although a non-EEA national can be considered on the basis of Regulation 8 if s/he has provided proof that s/he is in a durable relationship we have discretion with regard to the issue of a residence card. We should not seek to exercise discretion in his/her favour in instances where the non-EEA national is not lawfully resident in the UK.


Now following are my questions or concerns.

1) Since it says clearly as above that under no circumstances that the residence card should be issued if the applicant was not a resident of UK legally (in my case overstayed and criminal conviction).

So am i just wasting my time waiting for HO for the decsion when it says clearly that i wont get it on the basis of durable relationship due to my immigration history. And also it mention above that no discreation will be used in such cases.

2) I see that if i was married to my fiancee then things would be different. ( due to my status now i cant get COA and not sure if i could married in Church of England)

I really dont wanna do this as i would like to get married properly as we both discussed and have plans for for later this year or early next year.

No idea what to do next If in the end i would not get the residence permit due to the facts above should i not just pressure the HO to give me a decision and then think of the next plan of action. Or should i just get married in Church of England.

But it states above that the applicant should be legally resident in the UK at the time the application was made. So it doesnt make any difference if i get married now.

Please help as to what i should do and also if anyone has been in the same situation as mine and what was the outcome.

Thanks again for all the help from this forum.

Regards
DeltaUK

[Mr Rusty]

So in Feb 2007 when i got charged my immigration lawyer quickly filed an application for a Durable relationship extended family visa. In august 2007 my fiancee got her passport back with the approved residence card and i am still waiting for mine.

DeltaUK

Hmm... the same European Casework Instructions from which you quote also say this....

"1.9 Six-month rule

Community law requires us to decide applications for a residence card within 6 months from the date of receipt of the application. Every effort should be made to do so, particularly where an applicant draws our attention to an alleged breach of this requirement. Failure to comply with this requirement could leave the Home Office open to a claim for damages. "

Have you given the full chronology? I wonder what's going on.

[deltauk]

I read about the Six months rule but i cant go back to HO and say guys u took more then six months so you cant use the overtsay clause with my durable relationship.

I would really appreciate if someone has had similar experiences like this and what one would think the best plan of action would be. I dont wanna waste time knowing in the end the HO gonna decline the application anyways as stated in the European Casework Instructions.

HELP GUYS

[deltauk]

Dear All,

Anyone else with some advise??

[Patience]

Delta you will have a stronger case if you get married.At the moment you can qualify as an extended family member but if you get married you qualify as a family member/spouse.Therefore your case will be stronger.

However that is no guarantee you will get the residence document but a good solicitor can fight for your case in front of a judge since it is certain the ECW may refuse your application for the reasons you quoted above.

Someone correct me if I am wrong.

You may as well just return with your partner get married and apply for an entry clearance from home.If it is refused, you can appeal from the UK and get a good solicitor.Your case will be very strong in that case.You may have a bad immigration history but your representative can argue your right to a family life with your partner and your marriage will count most.

[William Blake]

Deltauk,

I don't know much about this so can't offer any advice.

I remember reading your original post and I am just sorry you are having such a tough time. Keep persevering and I hope you find a way through.

[William Blake]

Thats not to say others should stop posting.

[deltauk]

Everyone,

Many Thanks for your advice. Please let me know your views or any advice you may have.

Kind Regards
deltauk