ILLEGAL

[Konders]

hi everyone, l came to the UK in the yr 2000 on a 6 month visitors visa and l have stayed there ever since, almost 9yrs. l have 3 kids that were born in Enlgand to a English mum and lm Zimbabwean. I have been advised that the only way l can live in England permantly is to claim Asylum. Can any of you good people help or advice me on this sticky situation lm in. Thank you

[Mr Rusty]

An asylum claim may be refused, particularly because you have delayed making an application for such a long time.
However, if you are living with the mother of your children and can prove an enduring relationship, you may be able to make a successful human rights application on the grounds of your right to family life.

You should consult a good immigration solicitor with experience in such applications.

[Konders]

Due to my situation if the claim is refused do you think I have a right to appeal?

[Mr Rusty]

There is a right of appeal against refusals of asylum and human rights applications.
As a Zimbabwean national, you are not currently at risk of being forcibly removed from the UK. However, that situation will not last for ever, and it does not mean that a claim for asylum, or an appeal against refusal, will succeed.

[PaperPusher]

You would have a right of appeal, but it does not necessarily mean that you would win the appeal.

Please seek advice about your situation.

There has also been a recent judgement that may have some bearing on your situation:

http://www.bailii.org/uk/cases/UKHL/2008/40.html

Let me now return to the facts of the present case. This appellant came to the UK to seek asylum, met an old friend from Zimbabwe, married him and had a child. He is now settled here as a refugee and cannot return. No one apparently doubts that, in the longer term, this family will have to be allowed to live together here. Is it really to be said that effective immigration control requires that the appellant and her child must first travel back (perhaps at the taxpayer's expense) to Zimbabwe, a country to which the enforced return of failed asylum-seekers remained suspended for more than two years after the appellant's marriage and where conditions are "harsh and unpalatable", and remain there for some months obtaining entry clearance, before finally she can return (at her own expense) to the UK to resume her family life which meantime will have been gravely disrupted? Surely one has only to ask the question to recognise the right answer.

Conclusion

I would allow the appeal and hold that to remove the appellant to Zimbabwe would violate her and her family's article 8 rights. It was agreed that in these circumstances the respondent must pay the appellant's costs.

[Mr Rusty]

[quote="PaperPusher"]
There has also been a recent judgement that may have some bearing on your situation:

http://www.bailii.org/uk/cases/UKHL/2008/40.html

[quote]

Yes. The significance for the OP of the Chikwamba judgement is that the appellant had been refused asylum, but succeeded on human rights grounds because s/he had established a family life here and could not reasonably be expected to go back to Zimbabwe to apply for the requisite visa.

The OP hasn't said whether he is still together with his children and their mother, so the extent to which Chikwamba might benefit him is unknown

[PaperPusher]

That's why I like the word may, gets me out of all sorts of trouble.

Is it possible Chikwamba could be relevant to people who have not claimed asylum and for different categories such as access to a child if they are from Zimbabwe?

[Konders]

Would getting marraied be an option in my situation or not

[hamid84]

You have lived in UK for alomost 9 years as over stayer so when you apply for Asylum, you would be asked.. Why didn't you claim asylum when you 1st arrived?

When claiming asylum, you have to proof that you were persecuted in your country so having lived in UK for that long and not being persecuted, i don't see any luck in gaining in success this way.

Can you not go back to zimbabwe and come as spouse?

[Mr Rusty]

That's why I like the word may, gets me out of all sorts of trouble.

Is it possible Chikwamba could be relevant to people who have not claimed asylum and for different categories such as access to a child if they are from Zimbabwe?

Quite honestly I don't know. But I don't think that an asylum claim is a necessary precursor to an Article 8 Human Rights application, whichever country the applicant comes from.
A significant feature of the Chikwamba judgement was that the applicant's husband was himself from Zimbabwe, and had been accepted as a refugee here, so could not be expected to accompany the applicant to Zimbabwe. So the OP is in a different situation. But the judgement also says that only rarely should family cases involving children lose an appeal on the grounds that the applicant should apply from abroad.

We both agree that the OP should consult an appropriate legal practitioner.

[Konders]

Seriously speaking l dont have a family in zimbabwe both my parents passed away and almost everyone l know have been displaced by the events that have been taking place there. Basically l have no one to go to even lf l went back. Most people that are close to me live in the UK

[Mr Rusty]

The decease of your parents and diminished circle of friends or family in Zimbabwe is irrelevant to an asylum claim.
What Paperpusher and I have been trying to tell you is that if you are together here with a long-term partner by whom you have 3 children, you may be successful in a Human Rights application.
If this relationship no longer subsists, then when Mugabe goes and a more favourable situation in Zimbabwe is in prospect, UKBA will undoubtedly start removing people there, starting with "Failed Asylum Seekers", and will include you if/when you come to notice.

[Konders]

thanks guys for your advice, that means l should seek legal advice before l even attempt claiming asylum, and am elegible for free legal advice, since l dont work l wont be able to afford a good lawyer.

[PaperPusher]

Please get legal advice about how to make an application to stay from an OISC registered representative or solicitor:

http://www.oisc.org.uk/

http://www.lawsociety.org.uk/choosingan ... icitor.law

http://www.iasuk.org/ offer free advice to certain people

I believ you should think carefully about making an asylum claim if you do not have a reason to claim asylum. Leaving it so long to apply - 9 years - never looks good and may count against you. Please speak to your advisor about this. You may have other more suitable options if you have a partner and children in the UK.

[jei2]

thanks guys for your advice, that means l should seek legal advice before l even attempt claiming asylum, and am elegible for free legal advice, since l dont work l wont be able to afford a good lawyer.

You haven't answered any of the questions asked about your relationship.

If you're not with the mother of your children and are simply looking at marriage as a means to stay, you could face a lot of difficulty.

If you're still with the mother of your children and living together, have no fear of persecution back home, and haven't contrived significantly to frustrate the immigration rules, you should consider an application as an unmarried partner or spouse from Zimbabwe.

As already pointed out, an asylum application might be given little merit at this point.