ILR Application With Overstay

[systemn8]

Hello,

I've got a vexing concern that has been weighing heavily on my mind as is common regarding immigration status and potential pitfalls in regards to mistakes made along the way.

I am a US Citizen married with a British spouse currently living in the UK and have made my application to the Home Office for my ILR. I would like to know what sort of potential pitfalls I may face in regards to the circumstances of my ILR application.

Here are the particulars of my case:

I was coming to the UK from October 15th 2000 for business meetings and consultations and subsequently was issued a 2 year work permit in March of 2001.

While here under my work permit I met my wife and we married on August 8th 2002 and I received my temporary marriage visa from the british consulate in Amsterdam during our short honeymoon as I just wanted to get it out the way quickly and it only took an hour. I should note that I never looked at the visa nor was informed by consulate staff that it expired after one year.

I traveled to Paris almost a year later to the date on August 16th 2003 and returned to be informed that my visa had expired but the official was nice saw that it was an honest mistake and told me to get it sorted out and let me through. I had to travel again shortly afterwards for a wedding and could not risk not having my passport so I risked it again and was allowed re-entry under the same proviso.

Here is the kicker. I let my set M application sit unsent afterwards for a considerable and completely irresponsible amount of time and finally sent it off to the home office with all the necessary paperwork and then some to proving income, living situation, accountants letters, etc on January 21st of this year including a signed document explaining my serious and irresponsible delay in getting the paperwork in. I received my wife's passport and a letter about a month afterwards stating that my application is valid but more time is required to consider my application. My situation hasn't changed at all as I'm still married, working and paying taxes but I have been waiting for 7 months now and am feeling a sense of dread as to the outcome.

I've sent letters and tried calling the Home Office in order to check the status of my application or to at least make sure that they are still processing it and have received no word. Does anyone have any advice or experience in this matter? What is the potential outcome and what actions can I take to rectify this matter?

Furthermore, I was considering getting a second passport from the US Embassy here and traveling on that in the meantime. Would I be allowed re-entry back into Britain with a clean second passport? I have no rejection flags or anything on my old one so would this be a problem?

Thanks for reading my lengthy post but I'm getting worried and probably have every reason to be as Britain is my home... my life, my wife and my business is here.

[John]

I should note that I never looked at the visa nor was informed by consulate staff that it expired after one year.

I am not disbelieving you but that sentence does beggar belief. How long did you think the spouse visa was valid for? At that time, back in 2002, spouse visas were always issued for just one year.

And even when it was pointed out to you that your visa had expired you did not take prompt action to get your ILR back in 2003! Hm .... unimpressed.

So now, in 2005, you are having problems, or at least a delay, getting your ILR. I will not be at all surprised if they don't give you ILR, but instead give you another time-limited spouse visa ... which incidentally are now issued for two years. Whatever visa you do get I would strongly recommend you to look at the visa and make a note of its particulars.

Would I be allowed re-entry back into Britain with a clean second passport?

Allowed back in? As what? A visitor? I would think that would be a false declaration to the immigration officer. Strongly recommend that you stay put in the UK until you get your passport back from IND.

I'm getting worried and probably have every reason to be as Britain is my home... my life, my wife and my business is here.

Such a shame you did not get your ILR back in 2003. Shortly after getting that ILR you would have been eligible to apply for Naturalisation as British. Now you will probably have to wait three years after getting a new visa .... because you have been an overstayer for a couple of years.

[systemn8]

John,

Respectfully, I understand how unimpressive and unsurprising it is that I'm in this situation. I did little research and wasn't concerned with the particulars after all how many times does one get married in a foreign country? That's the least of it, it's the overstayer thing that keeps me up at night in cold sweats. I'm capable of supporting myself and my wife and have invested a lot of money in business here so the potential of denial and hoop jumping is what irks me. Especially when you're left to the whimsy of a bureaucracy like the home office.

So now, in 2005, you are having problems, or at least a delay, getting your ILR. I will not be at all surprised if they don't give you ILR, but instead give you another time-limited spouse visa ... which incidentally are now issued for two years. Whatever visa you do get I would strongly recommend you to look at the visa and make a note of its particulars.

I've learned my lesson in regards to the particulars and would be more than happy to have something, anything so that I can at least feel free to travel as opposed to the purgatory that I'm inhabiting now. Though of my own creation, 7 months is a long time to wait considering that they aim to 'decide most claims within 13 weeks'. I'd rather bring the wife in and have an interview just to get this over with.

Allowed back in? As what? A visitor? I would think that would be a false declaration to the immigration officer. Strongly recommend that you stay put in the UK until you get your passport back from IND.

Agreed, my luck is bound to run out at some point may as well not push it further.

Thanks for the response. Anyone other insights would be appreciated.

[John]

systemn8, just be very thankful you are a US citizen, that is a so-called non-visa national.

Had you been a "visa national", that is someone requiring a visa to get into the UK for any reason whatsoever, including as a visitor, well back on 16th August 2003 you could well have been denied entry. In fact it would probably have been worse than that .... the airline would have probably prevented you boarding your flight in Paris ... fearing a £2000 fine for bringing in a visa national without a visa.

You say you have a business. It may not have occurred to you that you currently have no right to work in the UK. But hopefully all this will be shorted out in the near future.

At least, worse case, they deny you any visa in respect of the current application, you could probably fly to say New York and promptly make an application for a two-year spouse visa there, and then fly back with new permission to enter the UK as a spouse. Hopefully it will not come to that.

You ask for other comments .... I too would welcome that .... in case I am being too negative here.

[systemn8]

systemn8, just be very thankful you are a US citizen, that is a so-called non-visa national.

I am thankful. I believe that has saved my skin a few times not to be arrogant about the fact but I'm sure the process would've been much different had I not spoken the native tongue. As I've noticed when it does come down to individual immigration officials the final decision is fairly arbitrary.

You say you have a business. It may not have occurred to you that you currently have no right to work in the UK. But hopefully all this will be shorted out in the near future.

It has occurred to me but being a freelance/contractor I have to work and service my clients regardless of my status, I have a national insurance number and have built a network of contacts out here. To not work or turn down work would be professional suicide especially while the home office is dragging their feet in giving me my decision. The inland revenue certainly doesn't mind me paying my taxes and my books are up to date.

At least, worse case, they deny you any visa in respect of the current application, you could probably fly to say New York and promptly make an application for a two-year spouse visa there, and then fly back with new permission to enter the UK as a spouse. Hopefully it will not come to that.

That would be fine, I would welcome being able to do that just so that I could travel and go on holiday and visit my friends and family back in California. I have a friend who is a pilot for Virgin Atlantic and one of his routes is to Los Angeles, my original home, and have subsequently missed several free flights back home. It's a constant source of frustration for me.

I was thinking about going back and applying for another two year visa before applying for the ILR but decided that I may as well just go for it and see what happens I just did not expect it to take this long.

You ask for other comments .... I too would welcome that .... in case I am being too negative here.

I don't think your comments have been overwhelmingly negative at all, actually they've given me a sense of hope that at the least I may have to jump through a few more hoops but that I can manage, outright denial and deportation would be detrimental to my mental wellbeing.

[John]

It has occurred to me but being a freelance/contractor I have to work and service my clients regardless of my status

Of course, that is understood. But do appreciate that your right to work expired with your spouse visa back in 2003.

Also, as a contractor you have your own limited company? If so that company is employing you to do the work for your clients. Accordingly in your current status, or rather lack of it, your company is currently employing someone who is not allowed to work and accordingly faces the threat of a fine of thousands of pounds should that ever get discovered. Not suggesting that there is much risk of getting caught but nevertheless the criminal offence is there.

If you don't work through a Limited Company but instead work direct for clients then those clients are facing a similar risk.

But hope it all works out fine, and soon.

[systemn8]

Also, as a contractor you have your own limited company? If so that company is employing you to do the work for your clients. Accordingly in your current status, or rather lack of it, your company is currently employing someone who is not allowed to work and accordingly faces the threat of a fine of thousands of pounds should that ever get discovered. Not suggesting that there is much risk of getting caught but nevertheless the criminal offence is there.

No, I'm operating as a sole proprietor without a limited company. So I work directly for other clients. As far as the potential threat, if it comes to that I'll have to deal with that if it arises.

I too hope it works out fine, thanks for exposing the things that I did not take into consideration. Knowing the potential pitfalls is far better than just dangling in the breeze.