I need to sort out my partners status in the UK

[theroyalconsort]

OK our story runs like this....

I have been living with my partner for 4 years now.

She and her son (now 13) came to this country from Ukraine on a tourist visa 5 1/2 years and have overstayed their visa.

Our lives have not worked out too well so far and we would like to sort out her status within this country.

we do not own a house and our earnings arn't terrific but we both work.

We have managed to organise a divorce between her and her (now ex) husband although I dont believe that this is really going to be much help....

How do we proceed....

All advice greatfully received.

Cheers

[John]

Given that the two of you have lived together over two years an unmarried partner's visa seems to be appropriate. OK, an application could be made in the UK, outside of the immigration rules, but that could take years and therefore cause all sorts of uncertainty.

So I think your partner should return to the Ukraine and apply for her visa there. By the way, is marriage a possibility? If so she could apply for a fiancée visa in the Ukraine, come back to the UK, and then the two of you could marry in the UK.

Her son? Does she now have "Sole Custody" of him? He will also a visa and it will be necessary to show that his mother has Sole Custody. Was the Sole Custody issue sorted out as part of the divorce?

Finally, you say both of you are working, which therefore indicates that your partner is working. However, as you are probably aware, on a visitor's visa, she is not permitted to work. Her employer faces a £3000 fine for employing her. So best get the visa issue sorted out sooner rather than later.

[Chess]

Very complex case - but alot of information missing before we can give proper advise. Initially, please respond to issues raised by John and we shal take the case forward from there...

...unfortunately cases involving minors, overstaying, custody, marriage/divorce are not that straight forward.

[theroyalconsort]

Ok Stage 2


Well there is no mention of custody of her son in the divorce but I do not expect the father to create any trouble.

As to is it possible for is to marry.. I dont know.

We'd love to but with a long expired visa and no legal status in this country we have visions of the cerimony being interupted by the police.

Also how is my partner supposed to get to the Ukraine. No valid passport.

Also I have heard of people not being allowed to import their wives into the country.... so we are a bit worried about packing her off to the Ukraine and her not being allowed back!.


Cheers for this.

[John]

You have to accept that there is no easy answer to all this. If you were hoping to hear that a UK application would be possible and would quickly resolve everything ... well sorry, I would love to give you those reassurances ... but I would not be telling the truth.

To get this resolved speedily your partner needs to go back to the Ukraine and make the applications there. But nevertheless there are some issues to deal with :-

Well there is no mention of custody of her son in the divorce but I do not expect the father to create any trouble.

Your partner needs to establish exactly what the British Embassy in the Ukraine require to satisfy them as regards the matter of Sole Custody. It is not just a question of the child's father not raising any objection ... some sort of Court Order will probably be needed.

Your partner should phone the Visa Section at the British Embassy in Kiev and ask them. While speaking to them about the Sole Custody matter she might like to also ask "What is the current delay in getting settlement visa interviews?" or words to that effect.

We'd love to but with a long expired visa and no legal status in this country we have visions of the ceremony being interrupted by the police.

Sorry, you are totally missing the point. If your partner returns to the UK with a fiancée visa in her passport she would have legal status! In any case, at the moment, it is legally impossible for her to marry in the UK, in view of a change of law that came into effect on 01.02.05. But the fiancée visa will change all that.

Also how is my partner supposed to get to the Ukraine. No valid passport.

You mean she has a passport but it has expired? Isn't the answer obvious? She needs to contact the Ukrainian Embassy in London.

While taking a quick look at that website I noticed a page concerning marriage in the Ukraine. It doesn't sound too onerous. That is, if you also travel out there, the two of you could marry there, then your wife (as she would be) could apply for a spouse visa to come back to the UK.

I have heard of people not being allowed to import their wives into the country

If the conditions are met the visa will be granted. There is no quota system. Assuming that you are British or otherwise settled in the UK, you need to pass three main tests ... financial ... prove that your partner and her son will not need to claim certain public funds ... accommodation ... that the accommodation is "suitable" and certainly not overcrowded ... "evidence of contact" ... clearly not a problem after four years together.

Obviously you are worried about her leaving the country but the reality is that only by doing so will the visa issues be sorted out reasonably quickly.

[theroyalconsort]

Stunning....

It looks like we can finally start to get this cloud removed from our heads...

ok, one last question though.

you need to pass three main tests ... financial ... prove that your partner and her son will not need to claim certain public funds ... accommodation ... that the accommodation is "suitable" and certainly not overcrowded ...

So as a ballpark figure what do I have to be earning (I live in London) and what counts as "suitable" accomodation.

Thanks for this, trying to get accurate information on this subject is a nightmare and you really do seem to know your stuff.

Cheers

[John]

Hi, the financial and accommodation aspects. Have a good read of Annex F of the instructions to the staff dealing with visa applications.

Lots of detail there. How much you need to earn? Sorry, it is not possible to simply specify a figure. One reason for that is that housing costs are liable to vary so considerably. But have a good read through Annex F and you will have a better idea what they are looking for.

The strange thing in all this is that once your partner and her child are back in the UK with valid settlement visas, you (and certainly not your partner) will be able to claim Child Benefit for the child, and the two of you jointly will be able to claim Child Tax Credit, and dependent upon personal circumstances, possibly Working Tax Credit as well. That joint claim for Tax Credits would be legal (once Settlement visas are in place) because of "small print" in the Tax Credits legislation, and would not be a breach of any visa condition.

Hope it all works out.

[Kayalami]

My interpretation of the immigration regulations pertaining to public funds are that by way of concession child benefit and appropriate tax credits may be claimed by the sponsored partner i.e. the one with limited leave to remain despite an annotation on said leave of 'no recourse to public funds'. These are rightly an entitlement for the family and as such either parent can claim.

[John]

Kayalami, as regards Tax Credits, and in the circumstances facing "theroyalconsort" and his family, it is not a concession that the claim can be made.

Basics of Tax Credits, if there are two people living together who are married, or living together as married, then any Tax Credits claim needs to be made by them jointly. That applies even if one of the couple has a restricted visa with a "No recourse to Public Funds" restriction on it.

But luckily some of the "small print" in the Tax Credits legislation comes to the rescue. That "small print" in particular is :-

Statutory Instrument 2003 No. 653 - The Tax Credits (Immigration) Regulations 2003

The part in play here is regulation 3(2) which reads :-

Where one member of a married couple or unmarried couple is a person subject to immigration control, and the other member is not or is within any of Cases 1 to 5 or regulation 5 .....

As it goes on to say, any Tax Credits claim by the couple shall :-

be determined in the same way as if that person were not subject to such control

Or to explain all this in language that is easier to understand ..... where one of the couple is British (or not subject to immigration control for any other reason) and the other of the couple is subject to immigration control, and therefore has a "No recourse to Public Funds" restriction on their visa, then for the purpose of Tax Credits only, their claim to Tax Credits shall be determined as if neither of them is subject to immigration control, that is, the claim can be made.

But does the claim breach the visa restriction? I got my MP to ask a Parliamentary Written Question on exactly that point, namely :-

Mr. Simon: To ask the Secretary of State for the Home Department whether a claim under the terms of Regulation 3(2) of The Tax Credits (Immigration) Regulations 2003 (S.I. 2003, No. 653, by a couple including a person who is subject to immigration control will not be considered to be a breach of any restriction contained in a visa. [104441]

Beverley Hughes: The provisions of Regulation 3(2) of The Tax Credits (Immigration) Regulations 2003 will be fully taken into account when any changes are made to the list of public funds given at paragraph 6 of the Immigration Rules. In line with this regulation, receipt of tax credits by a couple, including one member who is a person subject to immigration control, will not be regarded as a breach of any condition of leave to enter or remain.

Source : Hansard : 27 Mar 2003 : Column 345W

So taking all that into account, it is not "by way of concession" that the Tax Credits claim can be made, well certainly not in the sense that it is outside of the rules. The entitlement is clearly in the rules.

Child Benefit? I am not aware of a concession, but would merely add, given that Child Benefit is claimed by one person only, it is very easy to make the claim without seeking any concession .... the claim is made by the person who is not subject to immigration control. It appears not to matter at all that the child has a restricted visa, given that the child is not making the claim.