Help needed for Overstayer, married with child

[leelee]

Hello,

I recently joined this forum as I really need some good honest sound advise, so here goes:-

My now husband came to this country in May 2000 as a visitor, he applied for a visa extension on the basis of attending college. I understand now that he never did attend and the college apparently returned his paperwork to the address supplied but this was returned by the post office as 'addressee' unknown. His passport was then apparently returned to the HO who then returned this to the Jamaican High Commission. During this time my husband was unaware of this and believed that nothing was ever sent back to him including his passport. At this point he had overstayed. After growing rather concerned on the whereabouts of his passport he contacted a solicitor to investigate the matter who then made contact with the HO who took at least 2 years to respond, only to advise my husband that they returned his passport to the Jamaican High Commission. This all had happened before we met. I know how this sounds but when I met my partner we fell in love decided to get married and have my son who is now 3 years. All of this has happened while he has overstayed. In 2004 we decided to make an application for him to remain the UK based on our marriage I submitted the required paperwork and recieved all my documentation back from the HO but no details of my husband's status. After waiting 3 years with no reply from HO we decided to go to another solicitor who advised us to make another application on the basis that our marriage still exists and that we are a family unit. I also resent mine and my son's passport and birth certificate to support the application with pictures of us all on our son's first birthday etc, with a letter from our solicitor and family friends and still no reply from the HO after a further 9 months. We then decided to contact our local MP and we finally got a response saying that our case was complex and because my husband had overstayed at the time he got married they could not deal with our case within the normal timescales.

Now what I don't understand is why they haven't asked him to leave the country they are aware he has overstayed now, why have we got to wait further to be told this....and if not why don't they just make a decision..so we can get on with our lives.....Right now I have no idea of what the future holds for us...these people working for the HO have no idea what their lack of judgement is doing to my family

They have held onto both mine and my son's passport so we are all feeling like prisioners...

I have written letters to chase the progress of the application prior to going to the MP but have never had any reply back.

If there something else I can do or should be doing...

Appreciate a reply from some ASAP

[jei2]

Well leelee you've asked for good honest advice so here goes.

The Home Office takes a dim view of people who come to the UK and breach the rules. Having a British spouse or child will not cut any ice either.

As an overstayer his application would have gone to the back of a very long queue. The Home Office can also get a bit snippy when people contact their local MPs.

Not sure what you put in your first application but I would hope that the representative built enough on this to give you some consideration under the policy for married overstayers (DP3/96) rather than trying for Article 8 right to family life) of the Human Rights Act.

Moreover the policy generally applied to marriages that had subsisted for 2 years of more before coming to the notice of the Home Office. Many overstayers botched their chances by submitting a few months after the marriage.

DP3/96 was removed in March this year so it might be very difficult for you to get a favourable result from within the UK.

An Article 8 application will very likely get the response that you and your son could join your husband in Jamaica and continue family life there. Or you could remain here to support his application from Jamaica for entry under the correct rules.

Would your husband's passport still be valid?

I'm assuming that either your representative or MP have since mentioned the October exemption/concession for overstayers?

When were you married and how soon after did your husband submit his application?

Did your husband give the college his correct address?

[4444]

Well leelee you've asked for good honest advice so here goes.

The Home Office takes a dim view of people who come to the UK and breach the rules. Having a British spouse or child will not cut any ice either.

As an overstayer his application would have gone to the back of a very long queue. The Home Office can also get a bit snippy when people contact their local MPs.

Not sure what you put in your first application but I would hope that the representative built enough on this to give you some consideration under the policy for married overstayers (DP3/96) rather than trying for Article 8 right to family life) of the Human Rights Act.

Moreover the policy generally applied to marriages that had subsisted for 2 years of more before coming to the notice of the Home Office. Many overstayers botched their chances by submitting a few months after the marriage.

DP3/96 was removed in March this year so it might be very difficult for you to get a favourable result from within the UK.

An Article 8 application will very likely get the response that you and your son could join your husband in Jamaica and continue family life there. Or you could remain here to support his application from Jamaica for entry under the correct rules.

Would your husband's passport still be valid?

I'm assuming that either your representative or MP have since mentioned the October exemption/concession for overstayers?

When were you married and how soon after did your husband submit his application?

Did your husband give the college his correct address?

dear Jei2

i think the OP will benefit from Chikwamba case when his case comes to a decision. it is now easier to have a human rights (article family life case approved in this country since Chikwamba,s decision 2months ago. have a look at the extracts from Chikwamba case below (read note 1-10) . for now i suggest he starts making a complaint to the parliamentary ombudsman and also put further representations based on Chikwamba if he has not yet done so.

http://www.ncadc.org.uk/archives/filed% ... icle8.html

[jei2]

4444,

Call me a cynic but I don't believe that Chikwamba is going to bear fruit in every case that involves an overstayer with a child.

I think there are going to be a lot of broken hearts here.

Although the delay in this case would certainly be a useful factor, I feel the Home Office will try to dig their heels in on Chikwamba applications. Nothing to stop you trying though leelee.

Another issue is that there's little in the judgement itself about the relevance of marriage - which could open up the floodgates for both unmarried and unmarried couples with children. This would be an effective reinstatement of DP2/93 and DP3/96...

I think that if the Home Office feels its going to be railroaded by Chikwamba, it will simply become more critical of how applicants meet the requirements in future spouse/partner applications.

Or to save face, bring back in some covert concessions as the new Immigration bill progresses. Round and round we go...

[leelee]

Thanks for the advice, this all sounds a bit daunting.

My husband submitted his application about 6 motnhs after we married.

I understand that the address he supplied was correct but this was such a long time ago that his sponsor has moved on.

Is there any possibility of my husband getting amnesty or is this a long shot? I read somewhere that after 10 years of being an overstayer the HO are granting some people status.

I have heard about the 1st Oct, but this apparently does not apply to married couples.

Well leelee you've asked for good honest advice so here goes.

The Home Office takes a dim view of people who come to the UK and breach the rules. Having a British spouse or child will not cut any ice either.

As an overstayer his application would have gone to the back of a very long queue. The Home Office can also get a bit snippy when people contact their local MPs.

Not sure what you put in your first application but I would hope that the representative built enough on this to give you some consideration under the policy for married overstayers (DP3/96) rather than trying for Article 8 right to family life) of the Human Rights Act.

Moreover the policy generally applied to marriages that had subsisted for 2 years of more before coming to the notice of the Home Office. Many overstayers botched their chances by submitting a few months after the marriage.

DP3/96 was removed in March this year so it might be very difficult for you to get a favourable result from within the UK.

An Article 8 application will very likely get the response that you and your son could join your husband in Jamaica and continue family life there. Or you could remain here to support his application from Jamaica for entry under the correct rules.

Would your husband's passport still be valid?

I'm assuming that either your representative or MP have since mentioned the October exemption/concession for overstayers?

When were you married and how soon after did your husband submit his application?

Did your husband give the college his correct address?

[4444]

4444,

Call me a cynic but I don't believe that Chikwamba is going to bear fruit in every case that involves an overstayer with a child.

I think there are going to be a lot of broken hearts here.

Although the delay in this case would certainly be a useful factor, I feel the Home Office will try to dig their heels in on Chikwamba applications. Nothing to stop you trying though leelee.

Another issue is that there's little in the judgement itself about the relevance of marriage - which could open up the floodgates for both unmarried and unmarried couples with children. This would be an effective reinstatement of DP2/93 and DP3/96...

I think that if the Home Office feels its going to be railroaded by Chikwamba, it will simply become more critical of how applicants meet the requirements in future spouse/partner applications.

Or to save face, bring back in some covert concessions as the new Immigration bill progresses. Round and round we go...

jei2

Chikwamba will work for any overstayer or failed asylum seeker who has a family life here with or without a child. on par 44 of Chikwamba judgement ,it says only comparative rarely ,certainly in family cases involving children shud an article 8 claim dissmissed on appeal on the basis that it is proportionate and more appropriate to go and get an entry clearance from abroad. the HO Manmood policy has turned back on them. this means that it is now for the HO to show an exceptional case if entry clearance is to be suggested as the answer. so the thing is if your immigration history in uk is good and you are in a genuine and subsisting marriage or relationship whether you have children or not ,there is a very high chances that your article 8 claim will be approved in UK. Chikwamba replaces the long and overdue Manmood . leelee Chikwamba will help you and you need to send further representations to the HO.

her case has a delay factor in it which makes it extra strong coz that was one of the considerations also mentioned in Chikwamba. other considerations were that if the case is strong under the rules for example if someone meet maintainance and accomodation requirements then there is no longer any need to go and get an entry clearance also if someone doesnt meet the requirements the law lords are also saying there is no longer any need to ask those people to go and get an entry clearance coz the ECO will refuse them this permanently break family life. so Chikwamba is an all rounder case and a lot of people will benefit from it and there is nothing HO can do abt it until such a time when they appeal and win at the european courts of human rights which cud take 3years from now

[jei2]

leelee,

it's not as daunting as it may seem. Given the current leniency towards married couples under the October concession (not sure what you mean about not applying), and your limited options, Chikwamba would be your best bet.

There is no amnesty at present (none that the Home Office are calling that anyway) and the 10 year rules requires that all stay in the UK is legal. Your husband would have to apply under the 14 year rule which also covers stay that is illegal. Although that concession seems to be in jeopoardy with the proposed new legislation.

4444,

Chikwamba will not work for any overstayer or asylum seeker here with or without a child. Now that's pushing optimism too far.

[4444]

so tell me jei2 who is it gonna work for according to how you understand the caselaw.

[jei2]

Whoa 4444,

Not sure you've really read or understood my comments.

But in any case I think it's easier that we agree to disagree. Life's just too short.

Have a nice day.

[sally12345]

Whoa 4444,

Not sure you've really read or understood my comments.

But in any case I think it's easier that we agree to disagree. Life's just too short.

Have a nice day.

Hi All, my partner is an overstayer and after years of waiting we have now deceided that my partner will go back to jamaica and I will file for him from there! I have a child and worry what effects that it could have on our daugther being apart from daddy! but its a step that we need to take inorder, to move on and live our lives... You wait so long on the Home office with no real realpy and it hurts the waiting around is the worse part... So therefore our best bet was to leave the uk before the 01 Oct 08 and then apply and see what happens...

leelee, have you not thought about going back to JA and applying from there? as I am guessing you all the docs required to pass there test! Per say, it has happened many people have got so fed up gone and come back.... sometimes what you will find is that its sometimes faster that route! I have a mate the same case as your's well close and he has been waiting 14 years and still no reply and his son is 17years old... the Home Office dont care you just get pushed to the back... its a nightmare

[4444]

Whoa 4444,

Not sure you've really read or understood my comments.

But in any case I think it's easier that we agree to disagree. Life's just too short.

Have a nice day.

yes i have understood your comments very well and like you say it,s easier that we agree to disagree. am quite chuffed with that