HELP!!!!

[kmo]

Hi all

Any advice on my partners huge immigration problem will be greatly appreciated.

I am a uk citizen and my partner is Kenyan and originally came here as a student and has now been here for 10 years. We married in 1997 as i was expecting our first child and he was granted leave to remain in 1999.

Three years ago my partners leave to remain was cancelled because the home office had found his application for leave to remain to be deceiptful. I discovered that he had married previously in Kenya and had not divorced before marrying me. My partner was arrested and interviewed by an immigration officer and was released a couple of hours later. The police have not charged him for this offence.

We had not heard a thing from the home office untill earlier this year when we received a letter refusing him leave to remain. He was given the right of appeal which we attended on the 31st of August 2005. The appeal was dismissed. He has been given the option to argue that there has been an error in law but we cannot find anyone to help on this matter.

We have also been advised that my partner could leave the UK and re enter as my spouse. We are considering doing this and i was planning to go with him so that we can remarry and i will return to the uk and support his application. i am worried that he will be refused because of his immigration history and because of our very low income. We now have two children 7 years and 7 months. I am in receipt of income support, child tax credit, child benefit and housing and council tax benefit. I am seeking work but if my partner returns to Kenya i will only be able to work part-time because I will have no-one to look after the children untill he returns. This means that i will still need to claim some benefits.

do you have any advice for us?????

[kmo]

In addition to what i have just posted does anyone know if my partner is elegible for The Long Residence Consession( he has been here 10 years) or The Seven year Concession (our eldest daughter being 7)

[Kayalami]

My partner was arrested and interviewed by an immigration officer and was released a couple of hours later. The police have not charged him for this offence.

Any way forward requires as a minimum clarification of this given that such is an offence under multiple laws - why was he not charged? Likewise can you give:

1. details of leave applied for i.e. category and length

2. When 1 was granted and for how long

3. Grounds of refusal of last application

4. Grounds of appeal dismissal (presumably on a point of law but would be useful to know).

5. Somewhat sensitive but on what grounds are you in receipt of such extensive social security payments? Does your spouse not work? Did he finish his education? How does he support himself?

In addition to what i have just posted does anyone know if my partner is elegible for The Long Residence Consession( he has been here 10 years) or The Seven year Concession (our eldest daughter being 7)

LRC on basis of 10 yrs requires as a minimum continuous legal leave - the clock stopped upon refusal. The deceipt factor categorically rules out an application in any case so best to forget this route. Same deceipt impacts on 7 yr aspect and indeed any leave application.

[Chess]

kaya,

Doesnt having a 7 year old child play a major role in this case?..

doesn't the above give any compassionate circumstances given that it may be difficult for the child to settle in parents home country

[Kayalami]

Chess,

Many applicants believe the child having requisite status/ age is all that is needed. Could not be further form the truth. Home Office operational policy especially on concessionary applications is to consider all relevant factors to include extant criminal records to include pending proceedings. I've been in the immigration field long enough to know original post has way too many holes in it. Perhaps kmo can pm me.

[John]

I discovered that he had married previously in Kenya and had not divorced before marrying me.

Has he since divorced (or his wife died)? And if so, have the two of you since got married?

I don't claim to be an expert on marriage law when related to bigamy but is it the case that your marriage in the UK is null and void? You would need to marry again (if he is now free) in order to be considered married?

Out of interest, how did the UK authorities find out about the previous marriage?

[Smit]

As far as the Kenyan marriage is concerned, was this under customary law or was it registered at Sheria House? If the latter, you will need a court order from the High Court of Kenya annulling the previous marriage before lodging a spouse visa application at the BHC in Nairobi.

[John]

Smit, that is of course right but it occurs to me that if the two of them are not married then given that they have lived together for over two years, he might well consider applying for an Unmarried Partner's Visa.

[Smit]

John, it is unlikely in my opinion that such a visa will be granted in this case due to alleged deception, low income, heavy reliance on public funds by OP etc.

It has been possible since 1997 for unmarried partners both in a heterosexual and same sex relationship to gain entry to the UK. These sort of applications tend to be more difficult than those based on marriage as you need to show that you have been together for two years and that it is a permanent relationship. The requirements since April 2003 are as follows:

You have to show that any previous relationship whether in marriage or as an unmarried couple has ended.
You should have been living together for at least two years in a relationship similar to marriage. You will need to provide documentary evidence confirming that you have been living together for this time.
If you have been together for less than four years you are granted a visa for a probationary period of two years. If you are still living together at the end of two years in the UK permanent residence (properly known as indefinite leave to remain) will usually be granted.
If you have been together for four years or more outside the UK you will be granted indefinite leave to remain (permanent residence) in the UK without having to live in the UK for two years. Again, you will need to provide documentary evidence proving this.
You must intend to live together permanently with your partner.
You must possess sufficient funds to pay you and your partner's living expenses and those of any dependants without claiming public funds. Public funds cover various benefits paid by the Government if you are currently looking for work, if you are on a low income and if you are in various other situations.
Accommodation for the unmarried partners, and any dependants, must be suitable and available.
It is a requirement that the overseas unmarried partner has to be 16 years old or over, and the sponsor in the UK has to be at least 18 years old.
Children of the unmarried partners who are under 18 years old are allowed entry to the UK as dependants, and can make their application at the same time as the main applicant.
After a total period of five years in the UK if you meet the residence requirements you may then apply for UK citizenship.

[kmo]

Kaya

1) My partner originally applied for leave to remain as a person married to a uk citizen in 1997. The application was refused because he had overstayed. He appealed against this decision and was granted stay for 1 year.

2)A year later he applied for indefinate leave to remain and it was granted in 1999.

3)His leave to remain was cancelled in 2002 because the Home Office had reason to believe that he had obtained leave to remain by deception.

4)Appeal was dismissed because of no.3

5)My partner was told by the home office that he should not work. I have had another child this year and as I have been breast feeding up untill now it has been difficult for me to work. My partner lives of his overdraft!!!!

John

1)His divorce to his ex-wife in Kenya was settled in june of this year.

2)We want to remarry but I doubt very much that the immigration would give us permission.

3)His exwife informed the home office of their marriage!!!!

And to everyone else

I hope this answers all of your question, if not i am happy to answer more.

Thankyou to everyone who has posted!!

I AM STILL OPEN TO ADVICE SHOULD ANYONE HAVE ANY

[Chess]

Habari,

very complex scenario...

in hindsight - why didn't hubby apply for Naturalisation in 1999?

The ex-wife did not help the situation as well...

Asante Sana - Good Luck

[John]

Given that your partner is not a EEA citizen, and he does not hold a fiancé visa or a marriage visitor's visa nor ILR, he cannot marry in the UK without first getting a Certificate of Approval to Marry ("CoA"). However guidelines issued by the Home Office indicate that there is no way they would issue a CoA to your partner given that he has no current visa.

Accordingly, especially in view of lack of valid marriage at the moment, I cannot see any course of action apart from him returning to Kenya and applying for a new visa there. Possibilities include you also flying out to Kenya and the two of you marrying there, after which he would apply for a spouse visa, or alternatively he would apply for a fiancé visa, return to the UK, then the two of you would marry in the UK, then he would apply for a spouse visa, now of two years duration.

However, as already pointed out by Smit, there must be considerable doubt that the financial test would be met. That is, the fiancé visa and the spouse visa would both have a "No recourse to Public Funds" condition, and thus there is the need to be able to prove he will not need to claim those Public Funds.

I wish my view on all this was better but "I tell it how I see it". At least he was not prosecuted for bigamy.

[Kayalami]

in hindsight - why didn't hubby apply for Naturalisation in 1999?

Such would have been void pursuant to misrepresentation of a material fact.

My partner was told by the home office that he should not work. I have had another child this year and as I have been breast feeding up untill now it has been difficult for me to work. My partner lives of his overdraft!!!!

Financial situation means you will have major challenge meeting the maintanance and accomodation aspect of the rules let alone travel to Kenya for a marriage. My original post enquires as to whether your spouse completed his education. Has he qualifications and/or work experience that will enable him find suitable employment upon his return to the UK? Same query to you? Do you own your home? Is there any equity in it? Do you have family that can offer short term support for a visa application? The 7 yr concession (subject to clarification of bigamy charges being dropped) is perhaps a better option were answers to the above be in the negative. That the financial woes will continue though is an added factor to be aware of.

[Chess]

in hindsight - why didn't hubby apply for Naturalisation in 1999?

Such would have been void pursuant to misrepresentation of a material fact.

I am in no way suggesting that her hubby should have had any misrepresentations - in any case he would not have been the first or last person to hide material facts...this kind of stuff goes on - on a daily basis...

Generally speaking, the immigration system does not favour third world country applicants - therefore sometime people have to avoid disclosing material facts.

dont forget hubby came to the UK in 1997 - during John Major's governance and Michael Howard as home secretary...these were indeed terrible days for immigrants...

unfotunately "he lay his bed and he has to lie in it"

good luck

[kmo]

Hi Everyone

Thank you for your comments they have been interesting although I must say that I did not come on to this forum to find out wether my husband should have told the home office about his previous marriage or not. I came on here to find out if there is any chance that my husband will ever be given permission to stay in uk or re-enter given my current financial situation.

STILL OPEN FOR ANY ADVICE!!!

[Kayalami]

Thank you for your comments they have been interesting although I must say that I did not come on to this forum to find out wether my husband should have told the home office about his previous marriage or not. I came on here to find out if there is any chance that my husband will ever be given permission to stay in uk or re-enter given my current financial situation.

Based on my experience, understanding and interpretation of immigration law and on the basis of info provided and developments to date - No chance.

STILL OPEN FOR ANY ADVICE!!!

You have ignored my pertinent questions asked in good faith to ascertain your position and chances of a visa application. Accordingly you have become defensive over matters that are of distinct relevance in immigration law. I believe that I have not judged your husband and any actions but it would be false to ignore such/ say that these have not made an application more challenging. I fail to see how anyone can assist under these circumstances but maybe others have alternative suggestions.

Good luck

[kmo]

Kayalami

I am not in anyway becoming defensive. It is obvious that the Home Office would have to take the deceipt into consideration and in my previous posts I have clearly stated that they have indeed already done so hence the appeal dismissal on the grounds of deceipt. I have been completely open and honest and answered your questions. Have you not received the pm I sent to you? If you have then I don't what more can I give you????

[Kayalami]

kmo,

I have not received your pm with presumably answers to your spouse's education, employment and potential short term financial assistance from relatives. Check your outbox - if its there it has not left. If its in your sent box then must be an IT prob with the board. I have received 2 pm's this morning so this doesn't to be the case. Re-send.

[Smit]

kmo,

I have replied to your pm this morning, hope it helps.

Smit