EEA citizen with overstaying partner from dangerous country

[luluvaly]

There is my tricky situation.

I am Italian and my partner is from Zimbabwe. It has been nearly 1 yer that we live together.

He has legally stayed in the UK for 10 years so he decided for ask for a permanent visa. He sought the assistance of a lawyer to do the application. This lawyer was in fact a scam, it took his money and added false document in his application. When my partner tried to contact him after the application he never had an answer from this lawyer and he has been told that he left.

Because of this scam, his application has been refused, he is then overstaying since this day. He never received the notification of the answer because his former pretended lawyer never got back to him.

Also he is still working.

As you might know Zimbabwe is an unsafe country, it happened very often that migrants sent back to Zimbabwe are trated as spies, tortured aand killed. For this reason the UK tend not to send back Zimbabweans to their coutry even though they have been refused the visas, or asylum.

1. Is it still possible to do a civil partnership which would allow him to stay in the UK with me?

2. Is it wiser that my partner seek asylum knowing that since 2009, due to the circumpstances a lot of Zimbabweans are given a authorization to stay even if their asylum is rejected.

It is not possible for us to go to Italy as the home office retain his passport,
and going to Zimbabwe is quite dangerous, for him and for me.

3. He is thinking of reporting his former lawyer, and as the false document has been added by this lawyer, will my partner be able to start over the application from scratch? Because he risks a ban, but he never lied at anytime and did not know about the false document.

What is the best solution, do you see any solution?

ps: We plan to get married once everything will be sorted out.

[jimkam]

Hello luluvaley,

I'm sorry to hear about your situation. Don't worry there are some good guys on this forum who can give you some quality advice. First of all you need to immediately report the "scam" lawyer to the OISC for the alleged misconduct. It doesn't matter if the lawyer has left. It is still a criminal case and if you can prove that the lawyer acted illegally without your consent, you might get some leniency.

You can't go down the civil partnership route as the law only recognizes a civil partnership if it at least 2 years old or more. However, there are exceptions. Try and invest in something together in the UK. This will strengthen your Human Right Article 8 claim if you were to make one.

You can also try getting married. You will not require permission from the Home Office if you get married in any Church of England. Once you're allowed to get married it won't matter whether he is legal/illegal. That becomes irrelevant.

I was in a similar position in 2003. I was about to be deported but I quickly married my then girlfriend from Denmark. Our relationship was less than one year. The Home Office argued that our marriage was a sham and that me and my girlfriend should go to African and apply for a dependent visa there. The judge dismissed that argument and stated that it doesn't matter whether the non-EEA national is legal/illegal. What the couple need to prove is that "is there a genuine family life between them?". If yes, then it would be disproportionate to interfere. Of course things have changed now but the law about getting married in a church is still the same.

If he's lived here for 10years legally, why can't he go through the "long residency" route? The current immigration rules allows the Home Office to grant people Indefinite leave if they have lived here legally for 10-14 years. I'm sorry I know I've given you some confusing advise but your options are pretty limited. I'll do some more research and update you ok? Take care. I'll get back to you soon.

[luluvaly]

Thank you Jim,

the marriage can be a good idea, I will look further to see if it is posible, in adition, my parter was baptised at the Anglican church.

Thanks a lot for your advice.

[jimkam]

Thank you Jim,

the marriage can be a good idea, I will look further to see if it is posible, in adition, my parter was baptised at the Anglican church.

Thanks a lot for your advice.

Hey,

That's even better. For me thats the only option you have due to the time constraints. You need to start the ball rolling now because if you leave it too late it might be difficult. Good luck.

[luluvaly]

Thanks Jim,

But isn't there a possibibiity to start over the application? I known this is not a proper EEA suject but it is altogether in one case.

Any other possibility?

[luluvaly]

I mean starting over the application for permanent residence due to the fact that he has been scammmed.

[Kitty]

luluvaly, if you can find a CofE church that will marry you and your partner, then he should be able to apply for a residence card using form EEA2.

The EEA application should not be refused just because his current immigration status is irregular.

He will need his passport or a valid national ID card to make the application. Why is the Home Office holding his passport? Was he sent a form saying that he is liable to removal, or something like that?

Others may be able to help about getting back the passport. For example, I knew someone who was able to get their passport back so they could renew it.

BTW, I was really confused to begin with because you and jimkam were talking about "civil partnerships", and then a CofE wedding. In the UK a "civil partnership" is a same-sex ceremony which is treated like marriage for immigration purposes. It's different from the recognition of "unmarried partner" status, which does require evidence of 2 years' cohabitation.

[luluvaly]

luluvaly, if you can find a CofE church that will marry you and your partner, then he should be able to apply for a residence card using form EEA2.

The EEA application should not be refused just because his current immigration status is irregular.

He will need his passport or a valid national ID card to make the application. Why is the Home Office holding his passport? Was he sent a form saying that he is liable to removal, or something like that?

Others may be able to help about getting back the passport. For example, I knew someone who was able to get their passport back so they could renew it.

BTW, I was really confused to begin with because you and jimkam were talking about "civil partnerships", and then a CofE wedding. In the UK a "civil partnership" is a same-gender ceremony which is treated like marriage for immigration purposes. It's different from the recognition of "unmarried partner" status, which does require evidence of 2 years' cohabitation.

Kitty, thank you for for answer,in the situation of my partner I guess the best is not to contact the home office if we don't to risk him to be banned or sent back or any enforcement. That 's why we are not asking his paasport back.

We wanted to do the civil partnership at first because we would prefer doing that, then having everything sorted out and being able to plan our marriage later, being able to save to afford a nice wedding instead of rushing into it.

Because of our actual situation, we don't want to be separated so we think that a marriage should be safer and quicker.


By the way, we have been advised by our lawyers to apply for a COA and a FLR at the same time, but I have to say that, it seems too risky to me, kind of a Russian roulette.

What do you think?

[BLK235]

You keep going on about civil partnership. Are you both males?

[luluvaly]

no I am a woman and he is a man

[luluvaly]

I did not know it was only for homosexuals, I thought it was for couples same sex or not who want to live together and want it to be official and recognized by the government.

[doesnotcompute]

I did not know it was only for homosexuals, I thought it was for couples same gender or not who want to live together and want it to be official and recognized by the government.

It's the terminology that is confusing things. In Britian a "civil partnership" is the Home Office's way of saying a gay marriage.

If you are female and your partner is male, then you are not in a civil partnership.

Edit: If you have lived together for over 2 years with your partner in a marriage-like relationship, and you have enough documentary evidence to prove it, you could, in theory, apply for an EU Residence Card as unmarried partners. Of course, you would need his Zimbabwean passport in order to apply for this.

[BLK235]

You may want to read CHAPTER 5 - RESIDENCE CARD APPLICATIONS of European Casework Instructions (starts on page 4, quote from page 5 of the document)

5.3 Partners
...
• However, under no circumstances should a person be granted a Residence Card on the basis of a durable relationship if they are not lawfully resident in the United Kingdom at the time that the application is made.

Although a non-EEA national can be considered on the basis of Regulation 8 if they have provided proof that they are in a durable relationship we have discretion with regard to the issue of a Residence Card. We should not seek to exercise discretion in their favour in instances where the non-EEA national is not lawfully resident in the United Kingdom.

[Kitty]

You may want to read CHAPTER 5 - RESIDENCE CARD APPLICATIONS of European Casework Instructions (starts on page 4, quote from page 5 of the document)

But I think we've already established that the OP can't use the "unmarried partner" ("durable relationship" in EEA-speak) route anyway because they've only been living together for ayear.

The discretion regarding "durable relationship" applications in the Casework Instructions doesn't apply to applications based on marriage.

luluvaly, I would say that if you want to get married, and can find a CofE minister willing to perform the ceremony, then (assuming you are working etc. under EEA rules) your partner will have the right under EU law to live in the UK with you as soon as he becomes your husband.

The Residence Card is simply a confirmation of his rights: it is the marriage itself which actually gives him the right to live here.

Is there a particular reason why you are reluctant to ask for your partner's passport back? What did the most recent refusal decision actually say? If he has already made an unsuccessful application to stay in the UK under the Immigration Rules, the Home Office are already aware of his presence anyway.

If you do want to have a civil marriage ceremony (that is, to get married in a Register Office and not a church), then you will need a Certificate of Approval (COA) as your lawyers appear to have suggested. However, a COA can take a loooooong time to process, and during that time it seems your partner is at risk of removal. If you are not averse to a church ceremony, there is no reason it can't be a small, straightforward one.

[luluvaly]

Thank you everybody for your answers I will finally go for a church of England wedding because this is the original religion of my partner and his family anyway, we can get married by the same minister who babtised my partner, he is presently in the UK.

Thank you everybody I will let you know.

[irric]

Thank you everybody for your answers I will finally go for a church of England wedding because this is the original religion of my partner and his family anyway, we can get married by the same minister who babtised my partner, he is presently in the UK.

Thank you everybody I will let you know.

Hi luluvaly......
Just wanna say that after spending ten yrs u have a good chance to win urself...... Even if u have neen scammed u just need to talk through Human Rights and everything is urs......

But if u decide to involve marriage its ur choice, but its not really necessary... its a separate issue.... but if u fight for ur ILR u can win unless u r 1 in 1000s rare case.... in that case u can use ur marriage anyway if it ever ever goes that far....

[mrlookforward]

There is my tricky situation.

I am Italian and my partner is from Zimbabwe. It has been nearly 1 yer that we live together.

He has legally stayed in the UK for 10 years so he decided for ask for a permanent visa. He sought the assistance of a lawyer to do the application. This lawyer was in fact a scam, it took his money and added false document in his application. When my partner tried to contact him after the application he never had an answer from this lawyer and he has been told that he left.

Because of this scam, his application has been refused, he is then overstaying since this day. He never received the notification of the answer because his former pretended lawyer never got back to him.

Also he is still working.

As you might know Zimbabwe is an unsafe country, it happened very often that migrants sent back to Zimbabwe are trated as spies, tortured aand killed. For this reason the UK tend not to send back Zimbabweans to their coutry even though they have been refused the visas, or asylum.

1. Is it still possible to do a civil partnership which would allow him to stay in the UK with me?

2. Is it wiser that my partner seek asylum knowing that since 2009, due to the circumpstances a lot of Zimbabweans are given a authorization to stay even if their asylum is rejected.

It is not possible for us to go to Italy as the home office retain his passport,
and going to Zimbabwe is quite dangerous, for him and for me.

3. He is thinking of reporting his former lawyer, and as the false document has been added by this lawyer, will my partner be able to start over the application from scratch? Because he risks a ban, but he never lied at anytime and did not know about the false document.

What is the best solution, do you see any solution?

ps: We plan to get married once everything will be sorted out.

Where exactly does the torture take place in Zimbabwe? I have many friends who visit Zimbabwe on a very regular basis. They never have faced a problem like that anywhere in Zimbabwe.