overstaying........

[ladybug]

Hello, I need help!!! I had applied for HSMP while still in the UK(I am still here!) but it is taking forever and they seem to have one problem after another with my application. I am on a student visa which is about to expire(in days!) My boyfriend( British) and I have decided to got o my home country to get married and then I can apply for spouse visa from there, but I cant go for another 3 weeks or so, as I still have my stuff with the HSMP team. So by the time I leave the UK, I would have overstayed for about 4 weeks
What are the implications of my overstay on my soon to be application for a marriage visa? I couldnt file FLR(IED) cos I hadnt gotten a response from the HSMP team, and didnt file for an extention for my student visa also, because I am totally done!
I really dont know and I think I have just dug myself even deeper, but I just want to get my stuff and go home and apply from there when I get married in November!
Please advise me, I dont know what to do!! :
THanks in advance.... look forward to hearing your comments, I need advise urgently!

[John]

My boyfriend( British) and I have decided to got o my home country to get married and then I can apply for spouse visa from there, but I cant go for another 3 weeks or so, as I still have my stuff with the HSMP team.

I believe that if you simply withdraw your HSMP application all your papers should be returned to you promptly. So why a three week delay? Where does that come from?

[ladybug]

I actually need the time to pack up my stuff and plan the wedding. ok maybe not really 3 weeks, but there abouts.......
I really want to know if my overtsay might be a hinderance to my application
I was going to apply for FLR(O), but theress now no time and no need, because I dont need to stay anymore.

[Kayalami]

Overstaying not usually a problem where a return to the UK is in a category leading to settlement (CLS) - this includes a visa as the spouse of a settled person, work permit holder, HSMP etc.

However if a future return to the UK is in a non CLS category e.g. visitor, student where the issue of returning to a country outside the UK is crucial to the application as a key aspect of the immigration rules then overstaying means your chances of a visa are low or almost always nil. Such is influenced by the length and reasons of the overstay and your personal circumstances on the day of your visa application. E.g. 1 - you overstayed due to illness for 3 weeks as travel an issue, went back home working for last 2 years in a senior role with a global company then coming to the UK for a 2 week visit to attend merger meetings on company expense and of course see your old friends from university - no probs. E.g. 2 - you overstayed by 1 year, you don't have a job in your home country and want to return to the UK as a visitor - no chance.

I recall a clause in the HSMP scheme that states the spouse of a settled person should not/ is not eligible for HSMP....you are already allowed to work without needing authorisation.

Do svidanja (that's all I remember from my Moscow trip)

[Jeff Albright]

Overstaying not usually a problem where a return to the UK is in a category leading to settlement (CLS) - this includes a visa as the spouse of a settled person, work permit holder, HSMP etc.

Kay, that is all true. Slightly off topic, yet interesting question - do you know if "dependant" offshore visa can be granted to someone with previous adverse immigration history, if they unsettled spouses and children in the UK on temporary LTR?!
Is the "leave the UK at the end of stay" pre-requisite for the dependant overseas visa application in such a case?
Many thanks.

[Chess]

if the spouse has LTR then the husband can only also be given entry from overseas on the condition that s/he abides with the conditions of the spouses leave (i.e departs the UK at the end of stay).


therefore adverse immigration history will be a factor against the applicant unless the application is for a CLS.

I hope that helps

[Jeff Albright]

Not much of help honestly speaking. There is an issue of a family split, which is in violation of human rights, isn't it? And also there is no connection between someone staying in the UK who never had imm problems and their spouses applying from overseas who had them in the past. It is daft to assume that if I had problems with imm and my wife never had it, we will both then decide to overstay again or something.

[Kayalami]

Not much of help honestly speaking.

Appreciate may not be what you want to hear but I concur with Chess on this one.

There is an issue of a family split, which is in violation of human rights, isn't it?

Your human rights have to be considered against the need to maintain UK immigration controls. Check this forum for human rights cases to include spouses of settled persons and extensive case law..message is HRA doesn't wash in a significant percentage (read majority) of cases - sorry.

And also there is no connection between someone staying in the UK who never had imm problems and their spouses applying from overseas who had them in the past.

Decision based on the immigration rules taking into account all factors including the immigration history of constituent members in the application as they must - if someone has a problem and you don't want this to affect you then leave them out is the message as harsh as that may sound to you. ECO has discretion to consider circumstances pertaining to overstaying (as per my prior post) as well as fresh evidence in respect of your case. Unless I had specifics of all details then hard to judge the chances of success.

It is daft to assume that if I had problems with imm and my wife never had it, we will both then decide to overstay again or something.

See above. I can not stress enough that:

1. Leave to enter/ remain in the UK for those without the right of abode is a privilege and not a right.

2. You have a right to be with your family (to include settled persons) but not necessarily in the UK.

Consequently you are free to depart the UK at any point in time (subject to no legal impediments such as a pending trial with exceptions and validity aspects of your visa) for a better destination. Let that destination's gain be the UK's loss.

An awareness of these factors may ease but I appreciate not eliminate the frustration that many have against the IND/ Home Office.

[Jeff Albright]

Thanks to all.
There is no surprise there are so many overstayers and various illegals in this country and the more stupid the system is the more there will be and the country will finally wreck itself into the chaos. Definitely not the place for me especially knowing for the fact that in reference to my situation I have done nothing wrong to this idiotic system in order to pay for it. Thats all I can say really.
Thanks for your replies again.

[Jeff Albright]

You have a right to be with your family (to include settled persons) but not necessarily in the UK.

If that was the case, this would have led to the grounds for refusal of ANY offshore visa application based on relationship/marriage regardless if a sponsor is British or not because theoretically, anyone can live anywhere even on a deserted island. In my understanding anyone who has a leave to remain here (through visas, LTR, citizenship) they have the right to choose to remain in the UK as long as the permission is valid. And their spouses should also be entitled to remain with them. Tell me if I am wrong.

Consequently you are free to depart the UK at any point in time (subject to no legal impediments such as a pending trial with exceptions and validity aspects of your visa) for a better destination. Let that destination's gain be the UK's loss.

Please could you let me know what are those legal impediments? And what are the exceptions? Is the waiting for the decision from the IND for 6-7 years also a legal impediment?
What are the validity aspects of the visa? If you are waiting for the decision and your visa runs out, your leave is automatically extended unless Clarke has changed it already (remember he was talking about it in regard to WP decisions)

And you are right, I have already started preparations for the depart to a better destination where the system is more strict less flawed and more organised.

Many thanks for your time and replies.

[Jeff Albright]

Your human rights have to be considered against the need to maintain UK immigration controls. Check this forum for human rights cases to include spouses of settled persons and extensive case law..message is HRA doesn't wash in a significant percentage (read majority) of cases - sorry.

Correct. Two Acts are very powerful and I would say HRA is even more powerful than others including the Terrorist Act 2000, for instance. Thats why the ministers cannot get rid of those clerics and fanatics. When it is clear that the HRA will not be violated on the basis of the "proportionality" to the clauses and articles in Immigration Act - for example when an unlawful immigrant has a spouse settled here, there will be no reason why the person should not leave and apply from abroad, as prescribed by Immigration Act. However, in the situation when the Immigration Rules clearly will not allow the return of that person to his family lawfully here, the departure of the person is not proportionate to the Article 8 of Human Rights Act.
The outcome of any case of this kind will entirely depend on the legal representation and the professionalism of the immigration advisor.

[Kayalami]

Thanks to all.
There is no surprise there are so many overstayers and various illegals in this country and the more stupid the system is the more there will be and the country will finally wreck itself into the chaos. Definitely not the place for me especially knowing for the fact that in reference to my situation I have done nothing wrong to this idiotic system in order to pay for it. Thats all I can say really.
Thanks for your replies again.

I am somewhat lost by this sweeping statement but note your undertandable frustration pursuant to your experiences. The face of the immigration system is changing and must do so by virtue of today's global reality primarily economic growth vis a vis appropriate labour resources. Such may not occur overnight - there is a 5 year managed migration plan seeking to address all these factors. I believe elements of implementation taking into account the various Imigration Acts already effective with more set to commence in spring 2006.

If that was the case, this would have led to the grounds for refusal of ANY offshore visa application based on relationship/marriage regardless if a sponsor is British or not because theoretically, anyone can live anywhere even on a deserted island. In my understanding anyone who has a leave to remain here (through visas, LTR, citizenship) they have the right to choose to remain in the UK as long as the permission is valid. And their spouses should also be entitled to remain with them. Tell me if I am wrong.

Please review my sentence in particular the 'not necessarily' aspect. Your family's right to be with you must be in the context of the UK's immigration system. This removes the "I have a visa/ citizenship in the UK so my spouse has the indelible right to be with me by virtue of that status" - wrong...only those with right of abode have that. Such is not transmitted unless in respect of the Immigration Acts which are put in place by a government voted for by the citizens within the remit of a distinct democratic system.

Your spouse/ dependent if they so wish may apply for permission to join or remain with you in the UK subject to these rules. If there is a negative outcome there is a judicial system in place to include an appellate authority as well as the ECJ. I am not aware of many countries with such to include Oz which appears to be your intended destination. Note that the system takes into account the HRA but contains a derogation clause for most articles - to not have such would leave those in charge unable to govern.

Please could you let me know what are those legal impediments? And what are the exceptions?

There are many to include pending legal trials .e.g. you are on HSMP and are charged with fraud which you deny - there is a trial during which your HSMP visa expires. Being a party to the trial it would be inappropriate for you to return home unless legal representation was in place and the charges were not so severe as to require your presence. Putting my criminal law hat on you are likely to be denied bail and placed in remand anyway since for it to go to court the prosecution are bound to have a strong case. I could list another dozen of the top of my head but its irrelevant to your specific situation.

Is the waiting for the decision from the IND for 6-7 years also a legal impediment?

In the context of your situation no - you have been free to leave the UK at any time during this waiting period.

What are the validity aspects of the visa? If you are waiting for the decision and your visa runs out, your leave is automatically extended unless Clarke has changed it already (remember he was talking about it in regard to WP decisions)

You need to depart the UK prior to the expiry of your visa unless you apply for an extension. Departure to include where all avenues to remain in the UK e.g. final refusal at Tribunal with no leave to the court of appeal and/or judicial review has failed.

And you are right, I have already started preparations for the depart to a better destination where the system is more strict less flawed and more organised.

Naturally. I certainly wish you luck. It would be interesting to hear what good if any has come out of your stay in the UK perhaps to include education, employment etc - I presume this to have improved as a minimum your points on the Oz migration matrix.

Many thanks for your time and replies.

Sure.

Correct. Two Acts are very powerful and I would say HRA is even more powerful than others including the Terrorist Act 2000, for instance. Thats why the ministers cannot get rid of those clerics and fanatics.

You've lost me. HRA encompasses definitive articles. The removal issue here is based on an articale that can not be derogated from Article 3 - torture and inhuman treatment. I am unable to comment on specific cases but many of the clerics you quote have been granted asylum and/or have citizenship due to persecution from their Home Countries. Article 8 - right to family life can be taken in the context of effective UK immigration controls. This is what I refer to in my post a non starter in most spousal HRA claims.

When it is clear that the HRA will not be violated on the basis of the "proportionality" to the clauses and articles in Immigration Act - for example when an unlawful immigrant has a spouse settled here, there will be no reason why the person should not leave and apply from abroad, as prescribed by Immigration Act.

As per my last sentence above.

However, in the situation when the Immigration Rules clearly will not allow the return of that person to his family lawfully here, the departure of the person is not proportionate to the Article 8 of Human
Rights Act.

Sorry I don't understand - do you have an example? If it is based on your original question on LTR then in what way is derogating from the HRA article 8 not proportionate?

The outcome of any case of this kind will entirely depend on the legal representation and the professionalism of the immigration advisor.

Sure but they are limited by case law unless they come up with something so new that the authorities are bound by the judicial system to grant leave. Again case/ situation specific.

[antontony]

All you have to do to stay in the UK is to apply for FLR(O). That is even advised in the HSMP guidence.

Good luck

[Jeff Albright]

All you have to do to stay in the UK is to apply for FLR(O). That is even advised in the HSMP guidence.

Good luck

Antontony - Thanks for reply...
Nope, FLR(O) is only for LTR holders. If you don't have a LTR - you cannot apply for a FLR incountry.

Kayalami - no time to argue now but will respond to each of the points you raised later.
I think I can argue this for the next 10 years. The main point where it all initially started from - my wife is here legally, is studying and needs support. I just wanted to see if there could be a sort of moron who would attempt to ban her husband future re-entry to the UK just simply on the basis of previous overstaying, which was not even my problem but rather the problem of the immigration system in this country.